Delhi District Court
Fir No. 398/2006 State vs . Sanjay Tomar Etc. 1/129 on 2 March, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS
JUDGE-02(NE)/ SPECIAL JUDGE, S/C /ST (POA) ACT, KARKARDOOMA
COURTS, DELHI
CNR No. DLNE01-000004-2008
SC No. 44350/2015
FIR No. 398/2006
PS: New Usmanpur
U/s 302/307/34/120B r/w 27 of Arms Act
r/w section 3 (1)(v) of SC/ST (POA) Act.
State
Versus
1. Sanjay Tomar
S/o Sh. Ram Bharose
R/o J-123, Gali No-2,
Kartar Nagar, Delhi.
2. Kuldeep Tomar
S/o Sh. Ram Bharose
R/o J-123, Gali No-2,
Kartar Nagar, Delhi.
3. Neeraj
S/o Sh. Pratap Singh ,
H.No. 1179, Sector 19,
Panchkula, Haryana
4. Pradeep Tomar
S/o Sh. Ram Bharose
R/o J-123, Gali No-2,
Kartar Nagar, Delhi.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 1/129
5. Ram Bharose
S/o Sh. Ram Dayal,
R/o J-123, Gali No-2,
Kartar Nagar, Delhi.
6. Smt. Mithilesh
W/o Sh. Ram Bharose
R/o J-123, Gali No-2,
Kartar Nagar, Delhi.
Date of Institution / Committal : 08.03.2007
Date of Arguments : 17.12.2021
Date of Pronouncement : 02.03.2022
JUDGMENT:
"The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law. We sometimes hear of FIR No. 398/2006 State vs. Sanjay Tomar etc. 2/129 `honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism."
(Lata Singh vs State of U.P. & Another dated 7 July, 2006)
1. This abovesaid observation of the Hon'ble Apex Court has described the deep- rooted caste system of India and also as to how the choice of individual to live freely has been suppressed in the name of caste and creed. When India won independence, everyone who believes in the freedom, must have thought that the independence was going to free them of all types of caste discrimination. Even our Constitution makers also thought in the similar manner and provided Fundamental Rights to ensure discrimination free society. The most sufferers of this caste system have been recognized by our constitution as Schedule Castes and Schedule Tribes. Though special provisions have made for such classes to bring them at par with others, yet such special measures have failed to bring targeted results and despite all legal efforts some castes continued to suffer social stigma and discrimination by the hands of some dominated. To stop this class discrimination and to compel country at large to treat lower sections of community with honor and dignity, Parliament enacted a law called the SC/ST (Prevention of Atrocities) Act, 1989. When this act was enacted, it was expected that it will create some fear in the mind of society and would compel to honour the dignity of such lower sections, but this Act has also failed to give desired results. The observation of the Hon'ble Apex Court in above cited case has proved that the protectors of the fundamental rights were clear while making this observation that this country is not free from all type of distinction and from the evil of this caste and creed. A section of society is still suffering from this caste-based biasness and even two adults of different castes have no choice to live freely and to choose their life partners and such butchering called - HONOUR KILLING.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 3/129
2. FACTS OF THE CASE: This case in hand is an example of brutal caste system which has not only engulfed the life of a young man but also compelled other partner to survive a miserable life with a sense of guilt throughout life as to why she dared to make a choice of a life partner outside her caste. The sequence of the incident started when deceased Krishan Kumar, belonged to lower schedule caste, dared to get married with a girl namely Laxmi belonging to an upper caste. They solemnized their marriage on 11/03/2005 in Arya Samaj Mandir against the wishes of their parents and started living separately. This marriage disturbed the ego of the family members of Laxmi and they started threatening to kill the boy and also once kidnapped him and severely beaten up. Not only this, they forcibly took away Laxmi Tomar from the company of deceased and confined her in their house. The deceased Krishan Kumar kept on running from pillar to post to get his legally wedded wife back, but failed. He even filed a Writ Petition (Habeas Corpus) before the Hon'ble High Court of Delhi, a Petition for Restitution of Conjugal Right and a Criminal Complaint u/s 156(3) Cr.P.C, but in vain. On the other hand, family members of Laxmi Tomar started taking revenge from deceased and his family members and initiated a long process of harassment, whereas Krishan Kumar kept on making complaints one after another with SHO and DCP concerned, but as usual nothing substantial came out of such complaints.
2.1. On 14/11/2006, a DD No. 7A was lodged on the basis of information received through Phone No. 22560091 by PS New Usman Pur thereby informing that accused Pardeep Tomar and his friends had fired on Krishan Kumar at Gali No. 2, Braham Puri, Delhi. This DD was entrusted to SI Pramod Kumar who rushed to the spot and found that one motorcycle was lying with a body of a man, in front of H. No. A-29/3, whose name revealed as Krishan Kumar, having bullet marks near his ear. Three empty fired cartridges were lying at the spot. Crime team was informed and inspected FIR No. 398/2006 State vs. Sanjay Tomar etc. 4/129 the spot of incident and photographs were clicked by the photographer. Samples were picked from the spot. A case was registered u/s 302 IPC. Dead body was removed to hospital and postmortem was conducted on the dead body and body was released to family members. Accused persons were arrested on the basis of statements of eye witness namely Sarjan Singh who was accompanied with deceased at the time of this incident and disclosed that he along with deceased Krishan Kumar was passing through Street No.2, Braham Puri when accused Kuldeep Tomar with Pradeep Tomar came from behind by a motorcycle and shot two bullets on the head of deceased from blank point range and killed him. Kuldeep Tomar also fired on Sarjan Singh after killing Krishan Kumar, but he fled away to escape himself; however, accused Sanjay Tomar tried to catch him at the corner of the street, but he escaped eventually and informed the father of the deceased Chander Bhan about this incident, who in response informed to the police.
2.2. During investigation, police came to know that deceased was married with the sister of accused persons against their wishes in Arya Samaj Mandir and family members were not happy with this marriage as the deceased belonged to SC community, whereas girl belonged to higher caste. The family members of the girl kidnapped her against the wishes of deceased and solemnized her second marriage with one Sanjay Parihar. Deceased filed multiple cases against the accused persons including a Writ Petition before Delhi High Court, but in vain. Krishan Kumar was returning from Karkardooma Court after attending a case when he was killed by the brothers of the girl. Deceased had filed a number of complaints against accused persons with local police thereby showing his apprehensions to be killed, but no action was taken and ultimately accused persons succeed in his killing. Police arrested all the accused persons and also recovered the weapon of offence at the instance of accused Kuldeep Singh. The other family members also arrested for hatching a FIR No. 398/2006 State vs. Sanjay Tomar etc. 5/129 criminal conspiracy against the deceased and also execution of such conspiracy by killing deceased. All the accused persons have been charge-sheeted u/s 120B/302 r/w120B/307/34 IPC and Section 3(1)(2)(v) of SC/ST (POA) Act, 1989.
3. This charge-sheet committed to this court after compliance of Section 207 CrPC.
4. This court has framed charges against accused u/s 120B / 302 r/w 120B / 307 r/w 120B IPC and Section 3(2) (v) of SC/ST (POA) Act r/w 120B IPC on 31.05.2007 and 30/04/2010 respectively. A separate charge under section 27 of Arms Act was also framed against accused Kuldeep Tomar. All the accused persons pleaded not guilty and claimed trial.
5. To prove the allegations, prosecution has examined PW1 Sarjan Singh, PW2 Ct. Mahavir Singh, PW3 Ct. Ashok Kumar, PW4 Rajesh, PW5 Ranjeet Kumar, PW6 Chander Bhan, PW7 SI Etendra Swaroop Yadav, PW8 Rajneesh Kumar, PW9 HC Prakash Singh, PW10 Ct. Naresh Kumar, PW11 HC Shiv Kumar, PW12 Renu Chaudhary @ Raj Kumar, PW13 Navneet Mohan Singhal, PW14 Pandit Dhananjay Diwedi, PW15 Vinod Bhadana, PW16 Devender Sharma, PW17 Raju Tomar, PW18 Dinesh Kumar Bansal, PW19 Dr. Atul Gupta, PW20 HC Arun Kumar, PW21 Ct. Virender Singh, PW22 HC Satish, PW23 ASI Tara Chand Sharma, PW24 Ct. Mukesh Kumar, PW25 SI Mukesh Jain, Draftsman, PW26 Ct. Bachhu Singh, PW27 ASI Ramesh Chander, PW28 HC Som Pal Singh, PW29 Anuj Bhatia, Nodal Officer, PW30 R.K. Singh, PW31 Arun Kumar, PW32 Jai Pal Singh, PW33 SI Pramod, PW34 Vikas Parihar, PW35 Insp. Dinesh Sharma, PW36 W/Ct. Saroj, PW37 DCP Sanjay Tyagi, PW38 Retired ACP Chander Kant, PW39 SI Nirbhay Kumar and closed PE.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 6/129
6. After PE, entire incriminating evidence explained to all accused under section 313 Cr. P.C. and their statements were recorded. Accused have not preferred to lead any defense evidence.
7. To prove the charges the prosecution has examined a number of witnesses and their testimonies are as under:
7.1. PW1 Sarjan Singh has deposed that deceased Krishan Kumar got married with Laxmi Tomar in Arya Samaj Mandir against the wishes of her family members and they were not happy with this marriage. It is further deposed that Krishan Kumar had filed a case regarding his marriage and the same was pending before Karkardooma Court. On 14.11.2006 at about 12:30 pm, he along with deceased left Karkardooma Court after attending a case by a motorcycle bearing No. DL-7S-S 4727 and deceased was driving the said motorcycle, whereas he was pillion rider. It is further deposed that deceased firstly visited PS Seelam Pur and thereafter, they were going to their house and reached at Bharam Puri when deceased Krishan Kumar took turn towards Street No.2 to reach Street No.1 as there was a traffic jam. It is further deposed that passage in Street No.2 was blocked by one DCM Toyota vehicle and there was no space to passthrough due to deceased Krishan Kumar stopped his motorcycle, but accused Pradeep Tomar and Kuldeep Tomar reached there by another motorcycle and stopped in the right of deceased. Pradeep Tomar was driving the said motorcycle whereas Kuldeep Tomar was pillion rider. As soon as motorcycle stopped, accused Kuldeep Tomar fired two bullets by his pistol on the head of the deceased Krishan Kumar and Krishan Kumar fell down of his motorcycle after sustaining bullet injury, but he fled towards main Brahmpuri road to save himself. It is further deposed that Kuldeep Tomar also fired a bullet aiming to him from behind to kill, but bullet missed target, however accused Sanjay Tomar who was standing at the corner of street tried to FIR No. 398/2006 State vs. Sanjay Tomar etc. 7/129 catch him but still he escaped towards Ghonda. It is further deposed that he was scared and raised alarm Bachao Bachao Goli Mar Di and also informed to the father of deceased namely Chander Bhan about the killing of Krishan Kumar by the brothers of Laxmi.
7.1.1. PW1 has further deposed that he came back to the spot of incident after half an hour and found that crowd as well as police officials had gathered there. Police recorded his statement at the spot and conducted the personal search of deceased vide seizure memo Ex.PW1/K. Dead body was removed to GTB Hospital. Police seized 3 fired cartridges from the spot vide seizure memo Ex.PW1/A and also seized the blood earth control besides motorcycle of deceased vide seizure memo Ex.PW1/B. It is further deposed that deceased got married with Laxmi, who was the sister of accused persons namely Sanjay Tomar, Pradeep Tomar and Kuldeep Tomar and belonged to a Higher Caste - Thakur, whereas deceased belonged to lower SC community - Jatav, due to accused persons murdered him.
7.1.2. PW1 also witnessed the arrest of accused Sanjay Tomar on his identification from 4th Pushta, New Usman Pur, Delhi by a police team comprising of SI Pramod on the basis of secret information vide arrest and search memos Ex.PW1/C and Ex.PW1/D. It is further deposed that accused also made his disclosure statement regarding his involvement vide disclosure statement Ex.PW1/E and also led the police team to his House No. J-123, Street No. 2, Kartar Nagar, Delhi wherefrom police seized DL and other documents along-with two live cartridges from the almirah of the room of accused Kuldeep Tomar which were seized vide seizure memo Ex.PW1/F. Police team also visited at House No. E-210, Sector 27, Noida at the instance of accused Sanjay Tomar to arrest co-accused Neeraj and also arrested him in his presence vide arrest and personal search memos Ex.PW1/G and Ex.PW1/H. Accused FIR No. 398/2006 State vs. Sanjay Tomar etc. 8/129 Neeraj also made his disclosure statement Ex.PW1/J. It is further deposed that on 16.12.06, he identified the accused Pradeep Tomar in PS and on 04/01/2007, IO prepared site plan at his instance. He has identified the weapon of offence as Ex.P1, fired cartridges as Ex.P2 to Ex.P4 and motorcycle of deceased as Ex.P5.
7.1.3. During cross examination, he has admitted that he neither met Laxmi Tomar nor her parents or brothers prior to this incident and even he never visited their house at any point of time. It is further admitted that neither he nor family members of Laxmi Tomar or Krishan Kumar attended this marriage and he came to know about this marriage one day after marriage and met deceased after 20 days of the said marriage. It is further deposed that deceased had filed many cases regarding his marriage before Karkardooma Court as well as High Court of Delhi and he used to accompany him to attend the hearings of those cases and on 14.11.2006, he was accompanied with deceased at Karkardooma Court and they were returning home after attending case date, but Street No. 1 was dug out and was also rush of rickshaw pullers so deceased turned his motorcycle towards Street No.2 to reach house. It is further deposed that passage in Street No.2 was blocked by a Toyota vehicle and they were waiting to clear way when both accused Kuldeep Tomar and Pradeep Tomar reached there by another motorcycle and accused Kuldeep Tomar fired on the head of deceased by a closed range, but he was not aware the intervals in which bullets were fired. He has admitted that he was not aware as to whether deceased fell down of his motor cycle after hitting bullets, as he fled away from the spot after firing, however assailants were at a distance of about 1 Ft. at the time of firing of second bullet, whereas at a distance of about 1½ meters at the time of firing third bullet on him. It is further deposed that he did not turn back to see the assailants while running, but he saw the accused Sanjay Tomar first time at the spot when he tried to catch him, however he knew him earlier too. It is further deposed that he ran for about ½ FIR No. 398/2006 State vs. Sanjay Tomar etc. 9/129 kilometer and collided with two rickshaws and also fell down while running after this incident and also informed the father of deceased via telephone while running, but did not inform the police. He remained under shock for about 15-20 minutes and came back to the spot of incident ½ an hour and narrated the entire story to the father of deceased Chander Bhan, who was present at the spot of incident with police officials.
He has admitted that he used to visit PS regularly to enquire about the progress of this case and also witnessed the arrest of accused Sanjay Tomar and identified him from a distance of about 50 meters, but he could not provide the description of the room of Kuldeep Tomar wherefrom police seized some articles from almirah, which was lying opened. He has failed to give description of the house of accused Neeraj at Noida as he remained inside the police vehicle when accused was arrested, but arrest proceedings were conducted outside the house and he signed the documents.
7.2. PW2 Ct. Mahavir was posted as photographer with Crime Team, NE and visited the spot of incident on 14.11. 2006. He clicked 10 photographs of the spot of incident which are Ex.PW2/1 to Ex.PW2/10, of which, negatives are Ex.PW2/11 to Ex.PW2/20.
7.3. PW3 Ct. Ashok Kumar was posted as reader to SHO and used to attend the High Court Cases. On 19.11.06, he handed over a copy of Criminal Writ Petition of Habeas Corpus No. 2173/05 titled Krishan Kumar v. State & Ors. to IO. Copy of the Writ Petition is Mark PW3/A, which was seized by IO vide seizure memo Ex.PW3/A. On 18/12/06, he also received documents pertaining to mobile phone of the accused Neeraj and handed over to IO, who seized those documents vide seizure memo Ex.PW3/B. The documents are Ex.PW3/C (1-2). He again received the ownership documents of the mobile of accused Neeraj Kumar from Airtel Company which are Ex.PW3/C and Ex.PW3/E and documents were seized vide seizure memo Ex.PW3/D. FIR No. 398/2006 State vs. Sanjay Tomar etc. 10/129 7.4. PW4 Rajesh is another witness to this incident and was running a shop near the spot of incident and was present in his shop at the time of this incident. He witnessed that one motorcyclist with one pillion rider stopped in front of his shop and he suddenly heard bullet sounds, but he did not see this incident being busy in weighing of pulses at that time. It is further deposed that his customers were saying that the bullets were fired, but he moved backside of his shop and saw that one motorcyclist was lying on the road and one of his legs was on the motorcycle, whereas two persons were running by a motorcycle towards inside Bhrampuri via Street No.-2, but he could not see those assailants. It is further deposed that blood was oozing out of the skull of the deceased motorcyclist who fell down along with his motorcycle in front of his shop. He closed his shop and went upstairs to his house, but he peeped down of his house and saw that huge crowd had gathered at the spot. It is admitted that the boys who were running from the spot were not wearing helmets. It is further deposed that a tempo was standing near the shutter of his shop in the street and rickshaws were also parked there and there was no sufficient space for passing through, due to motorcyclist, who had been shot had to stop his motorcycle in front of his shop. It is further deposed that he heard 3-4 sound of firings. Police recorded his statement.
7.4.1. During cross examination by Ld. APP for State, it is admitted that the date of occurrence was on 14/11/2006 and he disclosed to police that on 14/11/2006 at about 2:00 pm, two boys came by a motorcycle from the side of Main Road, Bhrampuri in the Street leading to his shop, whereas two other boys followed them and pillion rider of the subsequent motorcycle got down of his motorcycle and put a small fire arm on the skull of first motorcyclist and fired two bullets in his skull and he witnessed it by his own eyes. It is denied that the pillion rider of the first motorcycle did not run towards Braham Puri Road when first motorcyclist was shot dead or that the motorcyclist who shot the first motorcyclist did not chase or fired bullet on the pillion FIR No. 398/2006 State vs. Sanjay Tomar etc. 11/129 rider but bullet did not hit him. He has failed to identify the assailants as he was weighing pulses and did not look otherwise.
7.5. PW5 Ranjeet Kumar is another eye witness and has deposed that on 14/11/2006 at about 2:00 pm, he was purchasing the households from the shop owned by PW4 Rajesh situated at Street No.2. It is further deposed that one four-wheeler was parked near his shop in the street and rickshaws were also parked on other side and there was no space for passing through and road was almost closed. It is further deposed that two persons on the motorcycle were waiting for clearance of the road, in the meanwhile another motorcycle with two persons reached from behind and pillion rider of the second motorcycle got down and put a pistol on the skull of the driver of first motorcycle and fired two bullets and killed first motorcyclist. It is further deposed that the pillion rider of the first motorcycle got down and started running towards Brahmpuri, but the boy who shot the first motorcyclist chased him and fired bullet, whereas another person tried to catch him hold at the corner of the street, but he escaped and ran away while turning in the street. Public persons present in the street ran away due to terror and shopkeeper Rajesh Gupta also put down the shutter of his shop. PW5 has identified the accused Kuldeep Tomar, who fired the bullets on the deceased and driver of motorcycle was accused Pardeep Tomar, whereas the person who tried to apprehend the running boy as Sanjay Tomar. He has also identified the photographs of the deceased who was shot dead by the accused as Ex.PW2/1 to Ex.PW2/7. Police recorded his statement.
7.5.1. During cross examination, he has deposed that he stated to the police that two shots were fired by the pistol by putting on the skull of the deceased. It is further admitted that the place of occurrence was about 1½ -2 km away from his house and on that day, he went to purchase soap, tea and other daily use articles/ households. It is FIR No. 398/2006 State vs. Sanjay Tomar etc. 12/129 further deposed that when he was purchasing the articles, he could see the things around him and witnessed that one helmet was put on the motorcycle of the deceased and other helmet was in the hands of the pillion rider and both the motorcyclist i.e. deceased, accused and pillion rider were not wearing the helmets. It is further deposed that he ran away from the spot by his cycle and went to his house and did not talk to anyone about this incident and remained under shock for about 10-15 minutes. He received the information from PS Usman Pur to visit PS and visited on 30.11.06 when police asked him to identify the accused who shot the bullets in his presence. His first statement was recorded by the police on 14/11/06 at about 4:00 pm. He again came to the spot of incident and found a gathering of a number of police officials, who were asking for the persons who witnessed the incident. It is further deposed that there were two persons at the shop including shop owner Rajesh Gupta and his helper at that time. It is further admitted that deceased was not related to him in any manner. Police also recorded the statement of pillion rider of the motorcycle as well as father of the deceased and it was informed by the police official to him. It is denied that he was shown the photographs of the deceased.
7.5.2. PW5 was recalled after the arrest of the accused / PO Mithlesh and during his cross re-examination, he has deposed that in the year 2006, his financial condition was not too good. It is further admitted that he witnessed this incident from the shop of Rajesh Gupta which was at a distance of about 40 yards from the place where this incident of firing had taken place. It is further admitted that during the days of incident, he used to consume liquor in heavy quantity in morning itself and also used to quarrel with his family members and even on the day of incident, he consumed liquor in morning itself. It is further deposed that two peoples were riding the first motorcycle and both were wearing helmets. It is further admitted that he was busy in his purchasing at the shop of Rajesh Gupta and all of sudden heard a loud burst and FIR No. 398/2006 State vs. Sanjay Tomar etc. 13/129 then look outside, but left the spot after about 4/5 minutes of the incident. It is further deposed that he left the spot without meeting the police. It is further deposed that he had been sporting eye glasses for the last about 10-12 years as his eyesight was weak, though he was carrying his spectacles on the day of this incident, yet those were kept in his pocket and were not worn at that time.
7.6. PW6 Chander Bhan has deposed that on 14/11/06 at about 2:00 pm, he was present at his house when received a telephonic massage of Sarjan Singh that Pradeep Tomar and his brothers had fired bullets on his son in the Street No.2, Bharam Puri, Delhi. He informed police at 100 number from his landline Phone No 22560091 and thereafter, went to the spot of incident after making safety arrangements for his family members and police persons were present at the spot whereas his son Krishan Kumar was lying dead and one of his legs was on his motorcycle. Police recorded his statement. It is further deposed that his son belonged to SC community having sub- caste Jatav and, on 11.03.05, he got married with Laxmi Tomar in Arya Samaj Mandir. Laxmi Tomar belonged to higher caste -Thakur and she married without the wishes of her family members due to her family members had ill-will towards deceased and they used to extend threats to his son to kill him and also to implicate in a false case.
7.6.1. PW6 has further deposed that on 16.03.2005, deceased went to Arya Samaj Mandir to collect his marriage certificate when accused namely Sanjay Tomar, Pradeep Tomar and their friends caught him and gave beatings. It is further deposed that deceased used to reside separately in those days somewhere in Delhi and accused persons took away Laxmi Tomar forcibly, due to deceased had to file a Writ Petition before Delhi High Court to get his wife back. It is further deposed that on 02.04.05, accused Sanjay Tomar lodged a false case against the deceased as FIR No. 398/2006 State vs. Sanjay Tomar etc. 14/129 well as him, but deceased filed a Divorce Petition (actually Restitution of Conjugal Rights) against his wife which was pending before Karkardooma Court, but Laxmi Tomar never appeared in the said case. It is further admitted that on the day of incident a case was fixed in Karkardooma Court and deceased went to attend the hearing of the said case and Sarjan Singh (sometimes used Sajjan or Sirjan Singh also) was accompanied him. It is further deposed that he also made many complaints against the accused persons with Higher Officers and one case u/s 107/151 Cr.P.C. was also lodged against accused which was pending with PS Seelampur. It is further deposed that on 15.11.06, he visited the mortuary of GTB Hospital and identified the dead body of his son vide statement Ex.PW6/A. He also handed over the photocopies of the complaints filed with police which were seized vide seizure memo Ex.PW6/B. It is further deposed that he also made a complaint with DCP concerned on 05/07/05 which is Ex.PW6/C and bearing the signatures of the deceased and he identified it. The other complaint dated 13.03.05 was also made with DCP concerned, which is Ex.PW6/D, copy of complaint dated 08.05.05 made to SHO PS New Usman Pur is Ex.PW6/E and bears his signatures. Copies of above said complaints are Mark PW6/A to Mark PW6/C. He also handed over the marriage certificate of the deceased to police which is Mark PW6/D. It is further deposed that on 08/12/06, he handed over the certified copy of the case pending at Karkardooma Court, which is Mark PW6/E and the same was seized vide seizure memo Ex.PW6/F. On 19.12.06, he again handed over the copy of complaint made against the accused which is Ex.PW6/H and the same was seized by the police vide seizure memo Ex.PW6/G. On 13/02/07, he handed over the copy of caste certificates Ex.PW6/K and Ex.PW6/L to IO which were seized vide memo Ex.PW6/J. 7.6.2. During cross examination, he has deposed that Sarjan Singh is the brother-in- law of his son Vinod Kumar and has been residing with his family for the last 3-4 FIR No. 398/2006 State vs. Sanjay Tomar etc. 15/129 years. He met Laxmi Tomar at his house in the month of January, 2002, but was not aware as to whether deceased wanted to marry her and rather, he was against this marriage and also did not attend this marriage. He came to know on 12.03.2005 that deceased got married with Laxmi Tomar. It is further deposed that Sarjan Singh used to work with deceased. He met the deceased on 11/11/06, 12/11/06 and 13/11/06 as he slept at home on the above said days, but he was not aware about the whereabouts of deceased during the period from 11/03/05 to 24/04/05. Police recorded his statement and he passed on the information to the police at 100 number verbatim whatever was told by Sarjan Singh. He did not know the witness Ranjit Kumar. It is admitted that the contents of the DD No-7A are correct.
7.7. PW7 SI Etendra Swaroop Yadav was the in-charge of Mobile Crime Team and on 14/11/06, he visited the spot of incident on receipt of the information through PCR. He witnessed that a boy aged about 20/25 years was lying dead on a motorcycle, in front of Shop No. A-29/3, Bhrampuri, Delhi and blood was oozing out of his head and three fired cartridges were also lying there near motorcycle. He prepared the Crime Scene Valuation Report Ex.PW7/A. 7.8. PW8 Rajneesh has proved the dead body identification of deceased vide statement Ex.PW8/A. 7.9. PW9 HC Prakash Singh has proved DD No. 66B dated 16/17.03.05 and DD No-9A dated 17.03.05 which are Ex.PW9/B and Ex.PW9/C, which were seized by the IO vide seizure memo Ex.PW9/A. 7.10. PW10 Ct. Naresh Kumar joined the investigation of this case and has deposed that on 14/11/06, he was posted as Constable with PS and DO hand him over FIR and rukka relating to this case to deliver to IO. IO lifted the blood and blood earth control FIR No. 398/2006 State vs. Sanjay Tomar etc. 16/129 samples along with three fired cartridges of pistol from the spot and sealed vide separate Six Parcels which were seized vide Memo Ex.PW10/A. IO also seized the personal search articles of the deceased vide seizure memo Ex.PW1/K and motorcycle was seized vide memo Ex.PW1/B. On 25/11/06, he again joined investigation with IO and witnessed the arrest of accused Sanjay Tomar on the basis of secret information from 2nd Pushta, New Usman Pur, Delhi in the presence of PW1. He also witnessed the search of almirah of accused Kuldeep Tomar in his house at the instance of accused Sanjay Tomar and IO seized two live cartridges and documents relating to pistol and other documents. IO also seized the license of the pistol vide seizure memo Ex.PW10/B and also prepared pointing out memo Ex.PW10/B. It is further deposed that accused Sanjay Tomar led the arrest of co-accused Neeraj from Sector 27, Noida, who was arrested in the presence of PW1. On 16.03.2007, he further witnessed the disclosure statement of accused Pradeep Tomar at PS vide disclosure statement Ex.PW10/C and accused also pointed out the spot of incident vide memo Ex.PW10/D. He has identified the fired cartridges Ex. P2 to Ex. P4, live cartridges Ex. P6 & Ex. P7 and documents seized from the almirah of accused which are Ex.PX1 to Ex.PX4 and motorcycle is Ex. PZ.
7.11. PW11 HC Shiv Kumar was posted as DO and on 14/11/06 at about 2:00 pm, he received a wireless massage that in Street No 2, Bharampuri, Kishan Kumar had been shot by Pradeep Tomar and his friends. He recorded the information vide DD No.7A and handed it over to SI Pramaod. DD is Ex.PW11/A. Again, at about 3:50 pm, he received a rukka from SI Pramod sent through Ct. Arun Kumar and recorded the FIR and assigned the investigation to Insp. Dinesh Kumar Sharma. Copy of FIR is Ex.PW11/B which was also sent to concerned MM. He recorded kaymi DD No.9A and 10A regarding the rukka and recording of FIR. Copies of same are Ex.PW11/C and Ex.PW11/D. FIR No. 398/2006 State vs. Sanjay Tomar etc. 17/129 7.12. PW12 Renu Chaudhary has not supported the prosecution and has deposed that he knew the accused persons namely Pradeep Tomar, Sanjay Tomer, Kuldeep Tomar and Ram Bharose, but has denied that he heard the accused and family members while hatching a conspiracy to eliminate the deceased Krishan Kumar, who got married with Laxmi Tomar. It is further admitted that the accused belongs to Thakur Caste, whereas deceased belonged to lower caste and he came to know about the murder of the deceased on the same day when police came to her office in search of accused persons.
7.13. PW13 Navneet Mohan Singhal has deposed that he used to run a PCO at Ground Floor, D-158, Nehru Vihar near Timarpur, Delhi. He arranged a room on rent for one Devender on the monthly rant of Rs.2,300/- pm on the 4 th Floor, D-155, Nehru Vihar, Delhi on the recommendation of one Rajesh, but he did not know accused Pradeep Tomar.
7.14. PW14 Pandit Dhananjay Diwedi was the priest in Arya Samaj Mandir, Yamuna Bazaar, Delhi and got solemnized the marriage of the deceased Krishan Kumar with Laxmi Tomar, in the presence of witnesses namely Amir Singh and Pradeep Singh. He issued certificate of marriage Ex.PW14/A. The affidavits filed by both parties with documents are Ex.PW14/A & Ex.PW14/B and Mark PW14/D to Mark PW14/I. Copy of marriage register is Ex.PW14/J. 7.15. PW15 Vinod Bhadana was running a cybercafé in the name and style of D.K. Cyber Café Mobile Center and VCD Library at Shop No-3637, Maa Shakumbri Market, E-Block Subzi Mandi, behind sub-mall, Sector 27, Noida. On 14.11.06 and 15.11.06, he sold out two Sim Cards of Hutch and Airtel Company to many customers, but he could not identify the customer to whom he sold out those Sims. He used to maintain register of sold Sims but could not produce the register before the FIR No. 398/2006 State vs. Sanjay Tomar etc. 18/129 court being lost and copy of missing report is Ex.PW15/A. He has admitted that he got filled up the Form Ex.PW29/A for issuance of Hutch Connection No.9877121933-Sim No.00022959143 sold out to Neeraj Kumar against DL-ID which is Ex.PW29/C. He verified the original of the same before issuance of this connection. He has further deposed that Mobile Connection of Airtel No.98711811768 with Sim No- 8991100607040850144 was also sold out to Neeraj Kumar against ID proof Ex.PW30/B and Ex.PW30/D bearing the signatures of the accused. Both numbers were activated on forwarding of the applications to the Company.
7.16. PW16 Devender Sharma has deposed that he did not know any accused namely Rinku Chaudhary, Pradeep Tomar, Sunder and Naveet Mohan.
7.17. PW17 Raju Tomar has proved that accused persons are his cousins and Ram Bharose is his uncle, but he has denied that Laxmi Tomar got married with Krishan Kumar.
7.18. PW18 Dinesh Kuamr Bansal, Patwari has proved the caste certificate of deceased Krishan Kumar as Ex.PW6/L, which was issued against the entry in register which is Ex.PW18/A. 7.19. PW19 Dr. Atul Gupta has proved the Post Mortem Report of the deceased Krishan Kumar which is Ex.PW19/A. This post mortem was conducted by Dr. Barkha Gupta who has left the services of the hospital.
7.20. PW20 HC Arun Kumar has deposed that on 14/11/06, he was posted with SI Pramod Kumar on emergency duty and, at about 2:00 PM, he received an information that Krishan Kumar had been shot by Pradeep Tomar and his associates at Street No. 2, Bharam Puri. He visited the spot and SI Pramod prepared rukka Ex.PW20/A and FIR No. 398/2006 State vs. Sanjay Tomar etc. 19/129 got registered FIR through him. Investigation of this case was entrusted to Addl. SHO Dinesh Sharma. IO prepared the site plan Ex.PW20/B in his presence and also seized three empty fired cartridges, blood and blood earth control of deceased vide seizure memo Ex.PW20/C. It is further deposed that some of the documents were also recovered from the pocket of the deceased and were seized vide seizure memo Ex.PW20/E. IO also conducted personal search of deceased and seized his articles and motorcycle vide separate memos. He also collected two bottles containing bullets, clothes and blood on gauze from the doctors after Post Mortem of the deceased and handed over the same to IO, who seized the same vide seizure memo Ex.PW20/D. It is further deposed that on 20/11/06, he witnessed that the father of deceased namely Chander Bhan visited the office of IO and handed over the documents Mark PW20/X, PW20/X-1, Mark PW20/C2 and marriage certificate of the deceased with Laxmi Tomar was also seized vide seizure memo Ex.PW20/F. He has identified the case property as Ex. P1 to Ex. P7 and Ex. PZ.
7.21. PW21 Ct. Virender Singh has proved that on 30/11/06, he along with IO left at Doda, J&K for the arrest of accused Kuldeep Tomar and IO arrested him on 04/12/06 being produced by Subedar Major Jaipal Singh. Accused was arrested vide arrest and personal search memos Ex.PW21/A and Ex.PW21/B and made his disclosure statement Ex.PW21/C. It is further deposed that accused disclosed that his pistol was licensee and was kept with Subedar Major Jai Pal Singh and same was seized along with 8 cartridges vide seizure memo Ex.PW21/E, after preparation of its sketch Ex.PW21/D. IO filled up FSL form etc. and recorded the statement of Subedar Jaipal Singh. It is further deposed that accused pointed out the spot of incident vide pointing memo Ex.PW21/F. Accused disclosed the involvement of co-accused Mithlesh in this case. He has identified the case property Ex.PW21/1 (Pistol), Ex.PW21/2 (Magazine) and Ex.PW21/3 (Cartridges).
FIR No. 398/2006 State vs. Sanjay Tomar etc. 20/129 7.22. PW22 HC Satish has also corroborated the testimony of PW21 regarding the arrest of accused Kuldeep Tomar from Doda, J&K and has also proved the contents of his disclosure statement Ex.21/C and arrest of accused as well as seizure of weapon vide memos Ex.PW21/A to Ex.PW21/F. 7.23. PW23 ASI Tara Chand Sharma was posted with PS Ambedkar Nagar and on 06.02.2007 at about 5:20 pm, he with HC Sohan Pal was on patrolling in the area and reached at the main gate of Batra Hospital and apprehended the accused Ram Bharose on suspicion. He arrested him after interrogation vide arrest and personal search memos Ex.PW23/B and Ex.PW23/C and also recorded his disclosure statement mark PW23/A. He arrested accused u/s 41.1 Cr.P.C. and informed the concerned police regarding his arrest vide DD No.31A. He prepared kalandra mark PW23D and mark PW23/E. Again, on 11.03.2007, SI Nirbhaya Singh received a secret information regarding the arrest of accused Pradeep Tomar and joined the raiding party constituted for apprehending the accused vide DD No-24. Accused was apprehended while he was coming by a motorcycle No. DL-7SA-T 2572 from the side of Mehrauli and was arrested vide arrest and personal search memo Ex.PW23/A and Ex.PW23/B. Accused made his disclosure statement Ex.PW23/C which was recorded by SI Nirbhaya Singh.
7.24. PW24 Ct. Mukesh Kumar has deposed that on 11/01/2007, he deposited 12 sealed parcels with FSL, Rohini after collecting from MHC(M) vide RC No.1/21 and returned AD to MHC(M).
7.25. PW25 SI Mukesh Jain was posted as draftsman with the office of DCP, NE and prepared scaled site plan on 04.01.07 which is Ex.PW25/A. 7.26. PW26 Ct. Bachhu Singh joined the investigation with IO on 14.02.07 and witnessed the arrest of accused Ram Bharose before the Court of Ld. MM vide arrest FIR No. 398/2006 State vs. Sanjay Tomar etc. 21/129 and personal search memos Ex.PW26/A and Ex.PW26/B. Accused also made his disclosure statement thereby disclosing his involvement and involvements of other accused Kuldeep Tomar, Pradeep Tomar and others vide disclosure statement Ex.PW26/C. 7.27. PW27 ASI Ramesh Chander has proved the entries of Register No. 19 dated 14.11.06, 11.01.07, 26.12.07, 04.03.08, 09.07.08, 15.11.06, 25.11.06, 14.12.06 and 02.12.08 which are Ex.PW27/A & Ex.PW27/B. By the above said entries, IO deposited 13 sealed parcels with MHC(M) which were later on sent to FSL.
7.28. PW28 HC Som Pal Singh has corroborated the testimony of ASI Tara Chand regarding the arrest of accused Ram Bharose. He got accused medically examined vide DD entry No. 32A which is Ex.PW28/A. He has also proved the arrest, personal search memo and disclosure statement of accused Ex.PW28/B, Ex.PW28/B1 and Ex.PW28/C. 7.29. PW29 Anuj Bhatia is the Nodal Officer of Vodafone and has proved the original pre-paid application of the Connection No. 9811721833 with SIM No. 00022959143 issued in favour of Neeraj Kumar. Application is Ex.PW29/A and declaration by outstation customer is Ex.PW29/B. The seal and signature of dealer, customer and check list are Ex.PW29/C and Ex.PW29/D. CDR of the above said number for the period from 01.11.06 to 18.11.06 with certificate u/s 65B of Evidence Act are Ex.PW29/E and Ex.PW29/F. 7.30. PW30 R.K. Singh is the Nodal Officer of Airtel and has proved the original prepaid application for pre-paid connection No. 9871811768 with Sim No. 8991100607040850144 issued to Neeraj Kumar. Application is Ex.PW30/A and seal and signature of dealer, customer check list and ID are Ex.PW30/B to Ex.PW30/D. FIR No. 398/2006 State vs. Sanjay Tomar etc. 22/129 CDR of the above said number for the period from 01/11/06 to 17.11.06 with certificate u/s 65B of Evidence Act are Ex.PW30/E and Ex.PW30/F. 7.31. PW31 Arun Kumar has proved the license issuing register of the weapon of offence make NP Bore Revolver/Pistol/ S/DBBL 12 Bore Gun issued to Kuldeep Singh Tomar at the address i.e. H.No. 1-193, Kartar Nagar, Gali No-2, Delhi and the retainer of the weapon was Smt. Babli Tomer, wife of accused Kuldeep Tomar. Copy of register is Ex.PW31/A and copy of License is Ex.PW31/B. 7.32. PW32 Jai Pal Singh, Retd. Subedar Major has corroborated the arrest of accused Kuldeep Tomar from his battalion office at Dodha, J&K by IO, in the presence of Major Vinay Dubey. He produced crystal number 124226, two magazines, eight live cartridges-7.65 written on bottom and license No DMK-2004/5 before IO who seized all such articles vide seizure memo Ex.PW21/F. All articles are Ex.PW21/1 to Ex.PW21/3 and License Ex.PW31/B is the same which was seized by the IO.
7.33. PW33 SI Pramod was the first IO and attended DD No.7A regarding the murder of victim. He visited the spot of incident and witnessed that the deceased was lying on the spot and blood and fired cartridges were also lying there. He got inspected the scene of crime and got it photographed. IO seized all the articles including blood stains and cartridges etc. from the spot in his presence. He also met eye witness Sarjan Singh there. He also witnessed the arrest of accused Sanjay Tomar from 4th Pushta by IO in the presence of PW1 vide arrest and personal search memos Ex.PW1/A to Ex.PW1/E. He further witnessed the seizure memo of live cartridges and license of the pistol from the almirah of accused Kuldeep Tomar at the instance of co- accused Sanjay Tomar. He further witnessed the arrest of co-accused Neeraj from Noida vide arrest memos Ex.PW1/G to Ex.PW1/H. He has identified seizures and FIR No. 398/2006 State vs. Sanjay Tomar etc. 23/129 articles.
7.34. PW34 Vikas Parihar has proved that he was married to Laxmi on 10.02.05 at Guna, MP. He has failed to prove any document that he was married with Laxmi on 10.02.05, but has admitted that the name of his father-in-law is Ram Bharose. He has failed to identify the photo of Laxmi on the marriage certificate Ex.PW14/A. 7.35. PW35 IO Insp. Dinesh Sharma has proved the investigation of this case and has corroborated the documents proved by the other witnesses. He has proved Form 25.35 (1)(b) which is Ex.PW35/A. He got preserved the dead body of the deceased in mortuary and made a request for Post Mortem Ex.PW35/B and after the post mortem, he released the dead body to the relatives vide handing over memo Ex.PW35/C. He collected the documents regarding the arrest of accused with DD entries and Kalandra Ex.PW35/D and Ex.PW35/E and thereafter, seized the copies of Writ Petition Ex.PW35/F and Ex.PW35/G. He also seized the complaints from the father of the deceased which were made to concerned police officers. He arrested all the accused persons and prepared the memos during the investigation. He also got conducted the TIP of the accused persons but they refused to attend the same, he also obtained the NBWs against accused Kuldeep Tomar and visited Dodha, J & K to arrest the accused Kuldeep Tomar and also to seize the weapon of offence with documents Ex.PW35/H. He seized the RC of the vehicle of deceased vide seizure memo Ex.PW35/I. He received DD No.38B regarding the arrest of accused Ram Bharose which is Ex.PW35/J and formally arrest him. On 13.03.07, he arrested the accused Pradeep Tomar vide arrest and personal search memos Ex.PW35/K and Ex.PW35/M and also added the provisions of SC/ST Act to this case. He collected the report from FSL, Rohini which are Ex.PW35/N to Ex.PW35/P. FIR No. 398/2006 State vs. Sanjay Tomar etc. 24/129 7.36. PW36 Ct. Saroj has proved the arrest of accused Mithlesh vide arrest and personal search memos Ex.PW36/ A to Ex.PW36/C. 7.37. PW37 ACP Sanjay Tyagi was 2 nd IO and took over the investigation after invoking the provisions of SC/ST Act. He filed the charge sheet in this case after completing the investigation.
7.38. PW38 ACP Chander Kant filed a supplementary charge sheet against accused Mithlesh after her arrest as PO.
7.39. PW39 SI Nirbhay Kumar was posted with PS Ambekar Nagar and arrested accused Pradeep Tomar u/s 41.1 Cr.P.C. on the basis of secret information vide DD No.24 B and arrested vide memos Ex.PW23/A to Ex.PW23/C. He lodged DD No 8A which is Ex.PW39/A against it and prepared kalandra Ex.PW39/B.
8. I have heard the arguments and perused the record. This case is based upon the direct evidence of eye witnesses namely PW1 Sarjan Singh (Sajan Singh or Sajjin Singh also used on some occasions but is being referred as Sarjan Singh) and PW5 Ranjeet Kumar. PW4 Rajesh Gupta has also supported their testimonies. However, before relying upon the testimonies of the PWs, it is necessary to ascertain as to whether the testimonies of prosecution witnesses are reliable or not. The main witness is PW1 Sarjan Singh, who is not only eye witness of this incident, but also the victim of this incident as well. PW4 Rajesh Gupta is the shop keeper where this incident took place and PW5 Ranjeet Kumar is the chance witness who was present at the shop of PW4 to purchase some households and witnessed this incident. The testimonies of all the abovesaid witnesses have to be examined in detail.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 25/129
9. Reliability of testimonies of PW1 Sarjan Singh, PW4 Rajesh Gupta and PW5 Ranjeet Kumar: PW1 Sarjan Singh is the relative of the deceased Krishna Kumar and was accompanied with deceased at the time of this incident and also witnessed the incident. His testimony is most crucial and relevant to this case, as the prosecution has heavily relied upon his testimony to bring the charges home against the accused persons. PW1 has categorically deposed that on 14.11.06, at about 12:30 pm, he along with deceased Krishan Kumar was returning to home by a motorcycle bearing No. DL-7S-S-4727, after attending a case in Karkardooma Court and deceased was driving the said motorcycle, whereas he was pillion rider. It is further deposed that they firstly went to PS Seelampur and thereafter left to house, but there was a heavy traffic on Street No.1, Bharampuri, so Krishan Kumar took another way via Street No.2 but that passage was also blocked by DCM Toyota vehicle and deceased had to stop his motorcycle. In the meanwhile, two motorcyclists namely Pradeep Tomar and Kuldeep Tomar reached there from the side of Main Bharam Puri Road and stopped their motorcycle nearby. Accused Pradeep Tomar was driving the said motorcycle, whereas Kuldeep Tomar was pillion rider. It is further deposed that as soon as accused persons stopped their motorcycle, Kuldeep Singh shot two bullets from his pistol on the head of Krishan Kumar and deceased fell down with his motorcycle. It is further deposed that he started running towards the main road to save himself, but accused Kuldeep also fired bullet aiming him from behind, but bullet missed target. It is further deposed that when he reached the corner of Street, accused Sanjay Tomar present there also tried to catch him, but he dosed him and fled away towards Ghonda and raised alarm Bachao-Bachao Goli Maar Di. He also informed the father of the deceased namely Chander Bhan while running that the brothers of Laxmi Tomar killed Krishan Kumar. After half an hour, he came back to the spot of incident and police recorded his statement.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 26/129
10. The above said testimony of PW1 has been duly testified by the accused persons by conducting lengthy and detailed cross examination, but he stood firm by his testimony, irrespective of some minor contradictions. He has categorically proved that he used to attend the court proceedings with deceased much prior to the date of incident i.e. 14.11.2006 and also visited the High Court, Karkardooma Court and Seelam Pur Court with him. It is further proved that on the day of incident, he was very well present with deceased not only in Karkardooma Court to attend the case hearing but also at the time of this incident. He has tendered an explanation as well as reason of passing through Street No.2 instead of Street No.1, as Street No.1 was dug out and there was heavy rush of rickshaw pullers there. He has also proved that he informed the father of the deceased about this incident by his mobile phone while running from spot and call was made after selecting number from his contacts stored in mobile phone and consequently, father of deceased informed PCR. He has further proved that initially he fled away from the spot and remained under fear for about 15/20 minutes after this incident, but returned back to the spot of incident after half an hour and at about 03:30 pm.
11. This testimony of PW1 has been duly corroborated by the testimony of PW6 Chander Bhan, who has also corroborated that Sarjan Singh informed him about this incident that deceased was shot by the accused persons. He informed the PCR vide DD entry 7A. PW6 has also corroborated the version of PW1 that he reached the spot of incident again and this testimony has been corroborated by PW33 SI Pramod also who met him at the spot during spot investigation. PW33 has categorically proved that initially no eye witness was found at the spot, but later on PW1 met him there. This testimony of PW33 has also been corroborated by PW35 Insp. Dinesh Sharma/ IO. Not only IO, but PW10 has also corroborated this fact that an eye witness was present at the spot / PW1. PW5 Ranjeet was another eye witness who has also corroborated FIR No. 398/2006 State vs. Sanjay Tomar etc. 27/129 the testimony of PW1 that the deceased was accompanied with one pillion rider who fled away from the spot after this incident and has duly identified the accused Kuldeep Tomar who fired on that pillion rider to kill him. As such, both eye witnesses as well as police officials have duly proved the presence of PW1 at the spot of incident during incident and also soon after this incident and accused Kuldeep Tomar also tried to kill him.
12. Testimony of PW1 Sarjan has been assaulted by the Ld. Counsel for accused on the ground that PW1 is a planted witness and was not present at the spot during this incident. Ld. Counsel for accused has relied upon DD No. 7A to dispute his presence at the spot. It is argued that the contents of DD No.7A have proved that the PW1 was not present at the spot, whereas police reached the spot on receiving DD entry, but still did not meet any eye witness there. It is further submitted that the contents of rukka Ex.PW33/A would show that it is specifically mentioned that no eye witness was found there and even the alleged timing of reaching the PW1 at the spot of incident at about 03:30 pm is direct in contradiction of the testimonies of police officials who did not find him there. It is further argued that the other witnesses also did not find him at the spot soon after this incident, due to his testimony is not reliable. It is further argued that the version of PW1 has been falsified by the FIR itself, which was lodged by the police on the basis of DD entry No. 7A and, if PW1 would have been there, then police were supposed to lodge this FIR on his statement and not on the basis of DD entry by leaving behind an eye witness, but police have not tendered any explanation, due to testimony of PW1 is not reliable to prove the guilt of accused persons. In support of this plea, Ld. Counsel has relied upon a case titled Mukesh v. State 2017 (1) JCC 594.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 28/129
13. On the other hand, Ld. APP for State has opposed all such submissions and has submitted that the presence of PW1 Sarjan Singh during this incident stands proved by his testimony which is intact despite a detail cross examination by accused persons. It is further argued that PW1 not only witnessed this incident but accused Kuldeep Tomar also tried to kill him and recovery of fired cartridge from the spot has fortified this fact. It is further argued that the presence of PW1 cannot be disputed by the accused merely because police officials did not meet him at the spot or that this FIR was lodged just on the basis of DD entry, whereas PW5 Ranjeet Kumar has duly proved that he witnessed the presence of PW1 at the spot and also that accused Kuldeep Tomar fired on him to kill, but he fled away of the spot. It is further argued that the duly testified testimony of PW1 cannot be disputed merely because his presence was not recorded in DD entry No.7A, which was got recorded by PW6 Chander Bhan on the basis of information flashed by PW1, as already admitted by PW6 also. It is further argued that PW1 has already tendered his explanation for his initial absence from the spot of incident being frightened after seeing this incident and such explanation is sufficient to prove the absence of witness and his testimony is reliable.
14. Admittedly, this FIR has been lodged on the basis of DD entry No. 7A regarding the incident. This DD entry was lodged on the basis of information flashed to PCR by the father of deceased / PW6 and PW6 has duly proved that this information was flashed to him by PW1. PW6 has also proved his Landline Number - 22560091 by which he informed PCR. In fact, the mode and manner of this information recorded against DD No. 7A was communicated by PW1 only and has proved that PW1 was present during this incident.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 29/129
15. PW1 has duly admitted that the accused Kuldeep Tomar also tried to kill him by firing from back after this incident, but he fled away to save himself. This fact has also been duly corroborated by PW5 Ranjeet Kumar, but he again came back to the spot of incident and IO /PW35 has duly corroborated this fact that he met PW1 at the spot after this incident and also recorded his statement at the spot itself. As such, PW10, PW33 SI Pramod and PW35 Insp. Dinesh have duly corroborated the presence of PW1 at the spot soon after this incident. No doubt the contents of rukka Ex.PW33/A have not supported the presence of PW1 at the spot and even testimony of PW20 HC Arun Kumar has also corroborated it, but PW1 has already admitted that he reached the spot again at about 3:30 pm and by that time, HC Arun Kumar had already left the spot to PS for registration of FIR. The endorsement of DO on rukka Ex.PW20/A has duly corroborated this fact. However, it is quite possible that police lodged this FIR on the basis of DD entry to avoid any delay in investigation, but the entire testimony of a duly testified witness cannot be disputed just because FIR was not lodged on the basis of the statement of an eye witness. Even otherwise, it was the part of investigation and was also domain of investigating agency on what basis FIR ought to be lodged, but it cannot be a ground to dispute the testimony of a reliable witness whose statement is intact despite lengthy cross examination. As such, testimonies of PW5, PW6, PW10, PW33 and PW35 have duly proved the presence of the PW1 on the spot of incident soon after this incident and has proved his version. However, observation of the Hon'ble Court in a case titled Kameshwar Singh v. State of Bihar, (2018) 6 SCC 433 is material as under;
14. It must further be kept in mind that the reactions of these witnesses in running away from the site of occurrence appears to be a natural human reaction under the facts and circumstances of the case. Behaviour of the witnesses or their reactions would differ from situation to situation and individual to individual. Expecting uniformity in their reactions would be unrealistic, and no hard-and-fast rule can be laid down as to the uniformity FIR No. 398/2006 State vs. Sanjay Tomar etc. 30/129 of the human reaction. The evidence of the three eyewitnesses cannot be faulted merely because they ran away.
16. As such, the reaction of the PW1 to flee away from the spot after seeing the incident and returned back to spot after some time cannot effect his credibility and it was natural reaction / conduct of any witness, as different witnesses react differently under similar circumstances. The judgement titled Mukesh v. State 2017 (1) JCC 594 relied upon by Ld. Counsel for the accused is dealing with the approach of the Court to rely upon the testimony of a related witness and is not applicable on the facts.
17. Ld. Counsel for the accused has further argued that the accused persons were not known to the PW1 prior to this incident and even they never met to him, due to it was not possible to PW1 to identify them, especially when no TIP of accused persons was got conducted. It is further argued that even the testimony of PW6, to whom alleged information was passed on by PW1 soon after this incident has proved that DD entry recorded on the basis of the information was altogether different than actual information allegedly passed on by the PW1 and has proved that he did not witness this incident. Ld. Counsel for the accused has further argued that the disclosure of different addresses by PW1 in different statements has proved that he was permanent resident of UP and was not aware about the actual address of deceased where he was allegedly residing. It is further argued that PW1 was called from UP to plant him by the family members of the deceased in connivance with police, otherwise the absence of PW1 at the spot by 03:30 pm has proved that as he was present in his village at the time of this incident and was called to Delhi just to stand witness to this case. It is further argued that PW1 did not remember the actual names of accused persons and this fact has fortified the argument of the accused. It is further argued that he did not meet police official during the investigation soon after the incident, due to his FIR No. 398/2006 State vs. Sanjay Tomar etc. 31/129 testimony is not of a reliable witness to convict accused persons for this serious offence of murder and such testimony is liable to be rejected.
18. On the other hand, Ld. APP for State has opposed all such submissions and has argued that double addresses of the PW1 in his statements u/s 161 CrPC cannot be ground to reject his reliable and tested testimony, especially when his presence at the spot has been duly proved by other public witnesses also. It is further argued that PW1 has duly proved that he used to attend the court cases with deceased and accused persons were well known to him prior to this incident as well and it has duly proved that PW1 was well aware about the identity of all accused persons and his testimony is sufficient to prove this offence. It is further argued that it was not possible to PW6 to inform the police about this incident with name of accused, if PW1 would not have communicated him. It is argued that all the pleas raised by accused persons are liable to be discarded being afterthought.
19. I have gone through the record. The identity of an accused is material in any criminal trial and court identification is paramount to prove the guilt as well as involvement of any accused. PW1 Sarjan Singh has duly proved that he used to attend the court cases with deceased and was well aware about the identity of the brothers of Laxmi Tomar /accused persons and such identity has duly proved before this court. Deceased got married with the sister of accused persons and they were harassing the entire family members of the deceased and this fact has been duly proved by the police complaints proved by PW6. No doubt PW1 has disclosed his permanent address pertaining to UP in his police statements u/s 161 CrPC, but he has also proved that he has already shifted to Delhi in the year 1997 itself. The testimony of the PW1 cannot be read in isolation and has to be read as whole. PW6 has also proved that PW1 was residing with his family and was also working with the deceased and this FIR No. 398/2006 State vs. Sanjay Tomar etc. 32/129 fact has duly proved the residence of PW1 at Delhi. He has also furnished the address of the deceased in his subsequent testimony to prove his version, whereas accused persons have failed to prove any evidence on record that PW1 was not present at the spot during this incident or was in UP at the time of incident or travelled to Delhi just to become a witness to this case. Even otherwise two different addresses of any witness cannot be a ground to dispute his testimony or to reject his testimony. It is quite possible that the IO might have recorded his permanent address in his different statements u/s 161 CrPC, otherwise it was not possible to PW1 to meet IO or other Police officials at the spot soon after this incident, if he was not present there. Even if it is assumed for the sake of arguments that PW1 was not present at the spot, then accused persons were supposed to tender an explanation as to who informed the father of the deceased about the incident by disclosing their names as assailants, but they have not offered any such explanation. As such, testimony of the PW1 is of a natural witness whose conduct cannot be doubted just on the basis of his addresses in police statements.
20. So far as the pleas of Ld. Defence Counsel that PW1 was not an eye witness to this incident or was not present at the spot during this incident or police ought to get conducted the TIPs of the accused persons to ascertain their identity are concerned, all such pleas have no substance being against record. Perusal of the record would show that all the three accused namely Kuldeep Tomar, Pradeep Tomar and Sanjay Tomar were offered to undergo for their TIPs on 26/11/2006 and 15/12/2006 respectively, but all of them refused for such TIP and the testimony of PW35 is clear to this effect. Even TIP proceedings are also the part of record which have duly corroborated that accused persons deliberately refused for their TIP identification and now they cannot take this plea. Even they have also not disputed these TIP proceedings during their statements u/s 313 CrPC and their replies were "it is a matter of record". No doubt FIR No. 398/2006 State vs. Sanjay Tomar etc. 33/129 court identification is the main evidence of identity and TIP proceedings are only part of investigation in terms of section 162 of CrPC and may be used just for corroboration, in case of requirements, but in this case all the accused persons themselves refused for their TIP despite knowing the consequences and now they cannot dispute their court identification for the want of TIP proceedings and such plea is not sustainable.
21. PW1 Sarjan Singh claimed himself to be an eye witness to this incident and prosecution believed his version and citied him as eye witness to this case. Accused had opportunity to falsify his version by conducting his cross examination and this opportunity has been duly availed by the accused persons. All the accused have duly cross examined PW1 in detail on all aspects, but he stood by his testimony despite lengthy cross examination running for many dates of hearings, but accused failed to bring any material contradiction which renders his testimony unreliable and now they cannot say that his testimony is not reliable. As such, PW1 has duly proved this incident and his testimony is reliable. On the other hand, accused persons have not preferred against any police complaint or litigation against their false implication to this case, due to reliability of the testimony of PW1 of eye witness could not be disputed.
22. Besides it, even if it is assumed for the sake of arguments that some delay occurred by the police in recording of the statement of PW1, then also it is not a ground to discard his testimony and law this effect is very clear by the judgment of the Hon'ble Supreme Court in case titled Vijay Kumar Arora v. State (NCT of Delhi), (2010) 2 SCC 353 as under;
55. On reappraisal of the evidence, this Court finds that it is true that the police statements of the abovenamed three witnesses were recorded after one month from the date of the death of the deceased. However, neither an explanation was sought from any of the witnesses as to why their police FIR No. 398/2006 State vs. Sanjay Tomar etc. 34/129 statements were recorded after a delay of one month nor the investigating officer was questioned about the delay in recording statements of those witnesses. The law on the point is well settled. Unless the investigating officer is asked questions about delay in recording statements and an explanation is sought from the witnesses as to why their statements were recorded late, the statements by themselves did not become suspicious or concocted.
23. Further, in case titled Narinder Kumar v. State of J&K, (2010) 9 SCC 259, it is held that;
23. It was also contended by Mr Gupta that statements of some of the eyewitnesses were recorded belatedly. This aspect too has to be seen in the background of the facts and circumstances of the case. Whether or not delay has affected the credibility of the prosecution is a matter on which no straitjacket formula can be evolved nor any thumb rule prescribed for universal application. The courts below have, in our opinion, correctly appreciated this aspect and rejected the contention that the delay in the recording of the statements of some of the witnesses was fatal to the case. That is specially so when the prosecution version, based on the statement made by Balwant Raj was known on the date of the incident itself. PW Balwant Raj had in the said statement attributed the gunshot injury sustained by the deceased to the appellant. Delay in the recording of the statements of the other eyewitnesses, two of whom were brothers of the deceased was not, therefore, used to falsely implicate the appellant.
24. Further, in case titled John Pandian v. State, (2010) 14 SCC 129, it is held that;
44. Other criticism levelled against these witnesses was that the statements of Selvaraj (PW 14) and Paramasivam (PW 15) were not recorded immediately. While the statement of Selvaraj (PW 14) was recorded on 20- 8-1993, Paramasivam (PW 15) became available for the statement after about 15 days. It is true that the criminal courts would expect the statements of the eyewitnesses to be recorded immediately or with least possible delay. The early recording of the statement gives credibility to the evidence of such witnesses. But then it is not an absolute rule of appreciation that where the statement is recorded late, the witness is a false witness or a trumped-up witness. That will depend upon the quality of the evidence of the witness.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 35/129 In view of the above said cases, it stands proved that the delay in recording of the statement of PW1, though not proved, is not fatal to believe his testimony and objection raised by accused is not sustainable.
25. Ld. Counsel for accused persons has further argued that the information given by the father of the deceased / PW6 to PCR was that "Pradeep Tomar vy uske dosto ne goli mar di hai", whereas PW1 has deposed before the court that "Brothers of Laxmi Tomar has killed Krishan Kumar with bullets" and this difference of information has proved that PW1 was not an eye witness to this incident. However, again this plea has no substance. The contents of DD entry No. 7A have proved that the information of murder was given by PW6 to PCR which was communicated to him by PW1, whereas PW1 has proved some slightly different version, but it is beyond explanation as to how this difference of words in information is fatal to this case. The main purpose of PCR call was the information of incident/ offence to PCR, which was done by the PW6, whereas PW1 was the eye witness to this incident and was supposed to prove the genuineness of this information, which has been duly proved by him beyond doubt. The difference of words in communication of information may be due to time gap between the incident and recording of the statement of PW1 before the court or may be on account of state of mind of the PW6, who was the father of the deceased and was just communicated about the murder of his young son. As such, this slight difference of words in information cannot be a ground to discard the reliable testimony of PW1, especially when the informant of DD entry was not an eye witness to this incident. Even otherwise, it is matter of human psychology that repetition of actual words is mostly not possible and difference of words usually occurs in repetition of even similar words, due to it cannot redundant the entire testimony.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 36/129
26. The information of incident recorded against DD No.7A may be considered either a statement of PW6 u/s 161 CrPC or an information in terms of Section 157 CrPC, but in both cases, it cannot be a substantive piece of evidence and at the most may be used just to contradict the witness similarly as his previous statement. The law regarding to the authenticity of such statements has dealt with by the Hon'ble Supreme Court in case titled Ashok Debbarma V. State of Tripura (2014) 4 SCC 747 as under:
"22. the mere fact that the appellant was named in the statement made before the police under Section 161 Cr.PC and due to this omission, evidence of PW10 and PW13 tendered in the court is not reliable, cannot be sustained. Statements made to the police during investigation were not substandard piece of evidence and statements recording u/s 161 Cr.PC ca nnot be used only for the purpose of contradiction and not for corroboration. In our view, if evidence tendered by witness in the witness box his credibility and reliability, that evidence cannot be rejected merely because of a particular statement made by witness before the court does not find a place in the statement recorded u/s 161 Cr.PC. Police officer recorded statements of witnesses in an incident where 15 persons lost their life, 23 houses were set ablaze and a large number of persons were injured. PW10 lost his real brother and PW13 lost his daughter as well his wife and in such a time of grief they would not be a normal state of mind to recollect who all were miscreants and their names. Witnesses may be knowing the persons by face, not their names. Therefore, the mere fact that they had not named accused persons in Section 161 Cr. PC Statements, at that time, they would not be a reason for discarding the oral evidence, if their evidence is found to be reliable and credibility.
In view of the above said case law, the plea taken by accused that this contradiction in information is material to discard the testimony of PW1 is not sustainable.
27. Ld. Counsel for accused has further emphasized that PW1 Sarjan Singh has not disclosed his mobile number to the police, by which, he informed the PW6 about this FIR No. 398/2006 State vs. Sanjay Tomar etc. 37/129 incident. Even he has failed to produce his SIM card to ascertain his last location at the spot of incident due to his testimony is not reliable. However, again this argument has no substance. PW1 has disclosed his mobile number 9868282964 during his cross examination and police were not obliged to seek or collect his cell location just to ascertain his presence at the spot when his testimony was reliable. PW1 was an eye witness to this incident and was not an accused to seize his mobile SIM or to collect his cell location to prove his presence at the spot. Contrary to it, the communication of the information passed on by the PW1 to PW6 via mobile phone is sufficient to prove that PW1 was in possession of such mobile phone and also communicated to father of deceased. The legal requirement to check the authenticity of the statement of PW1 was to put him under cross examination to check his veracity which has already been checked and testimony is found reliable, due to plea of the accused cannot be accepted.
28. Ld. Counsel for the accused has further argued that the testimony of the PW1 would show that he was accompanied with deceased on the same motorcycle at the time of incident and deceased was killed by a close range firing, but no blood stains were detected on his clothes which was not possible in any manner, as splash of blood oozed out after hitting bullets and this fact has already been admitted by him. It is further submitted that the absence of blood stains on the clothes of PW1 has falsified his testimony and has proved that he was not present at the spot during this incident and is a planted witness. However, again this plea has no substance. No doubt PW1 has admitted that he was accompanied with deceased on the same motorcycle when accused shot him from a close range firing and splash of blood oozed out, but he has also deposed that he immediately jumped out of the motorcycle and fled away to save himself. It was quite possible that PW1 might be on different angle when blood oozed out of the head of deceased or he jumped so quickly or in such a spar of moment that FIR No. 398/2006 State vs. Sanjay Tomar etc. 38/129 the blood stains missed him, but reliability of the testimony of PW1 cannot be discarded merely on this ground.
29. Ld. Counsel for the accused has further argued that PW1 is an interested witness being related to the deceased and his testimony is liable to be discarded. However, this submission has no force. Related witness is not always an interested one and rather there are chances that such witnesses shall not spare the real culprit. No doubt testimony of related witness must be appreciated with caution, but it cannot be discarded on this ground alone. It is necessary to go through the law relating to interested witness as laid down by the Hon'ble Apex Court in case titled State of AP v. S. Rayappa And Others, 2006 4 SCC 512 that "By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.
On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross- examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously."
30. It is further held in Kartik Malhar v. State of Bihar, 1995 Supp.5 SCR 239 has opined that;
FIR No. 398/2006 State vs. Sanjay Tomar etc. 39/129 "...a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason..."
31. It is further held in Raju Alias Balchandran and others v. State of Tamil Nadu 2012 12 SCC 701 it is held that:
30. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki, (1981) 2 SCC 752. It was held that:
"True, it is, she is the wife of the deceased; but she cannot be called an "interested" witness. She is related to the deceased. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."
31. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, AIR 1958 SC 500 the view that a "natural witness" or "the only possible eyewitness" cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was "concerned in the success of the trap". The Constitution Bench held:
"The correct Rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person."
33. For the time being, we are concerned with four categories of witnesses - a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a FIR No. 398/2006 State vs. Sanjay Tomar etc. 40/129 related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.
32. Further, in case titled Dalip Singh v. State of Punjab, 1954 SCR 145, it has held that without any generalization, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused - each case has to be considered on its own facts. This is what this Court had to say:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
33. In another case titled Waman v. State of Maharashtra, (2011) 7 SCC 295, it was held that : -
"It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a FIR No. 398/2006 State vs. Sanjay Tomar etc. 41/129 relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care."
The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in Sarwan Singh in the following words:
"The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
In view of the above-said case laws, it stands proved that related witness is not always interested witness. In fact, sanctity of truthfulness is involved in the testimony of such witness who is victim himself, but his testimony must be appreciated with caution and diligence. In this case, PW1 is the main witness who has categorically deposed all the facts in natural manner, he witnessed this incident and accused Kuldeep Tomar also attempted to kill him but he fled away to save himself which was his natural conduct. He was scared and took time to gather courage to reach the spot of incident again and such conduct of any witness is natural and has already been discussed. Testimony of PW1 as an eye witness as well as victim is definitely reliable to prove that the accused persons not only killed the deceased Krishan Kumar but also attempted to kill him.
34. Ld. Counsel for the accused has further argued that the testimony of PW1 has not been corroborated by any other witness, due to his testimony is not safe to convict accused persons. However, reliable testimony of any witness needs no corroboration and may be safely relied upon. Even a single witness is sufficient to prove a fact and FIR No. 398/2006 State vs. Sanjay Tomar etc. 42/129 multiplicity of witnesses is not a legal requirement as per section 134 of Evidence Act. However, in the present case, testimony of PW1 has been duly corroborated on all material facts by PW4 Rajesh Gupta, PW5 Ranjeet Kumar and PW6 Chander Bhan and there is no reason to disbelieve his version.
35. Further, PW5 Ranjeet Kumar has also categorically proved that on 14.11.2006 at about 2:00 pm, he was purchasing households from the grocery shop owned by PW4 Rajesh and witnessed that the Street No.2 was obstructed by a parked 4-wheeler as well as rickshaws and there was no space to pass through the street. This testimony has duly corroborated the version of PW1 regarding the reason of the deceased to take turn towards Street No.2 i.e. in front of the shop of PW4 where this incident took place. PW5 has further corroborated that the deceased and PW1 came together by a motorcycle make splendor and were waiting for clearance of the traffic when accused persons, duly identified as Kuldeep Tomar and Pradeep Tomar, reached there by another motorcycle and stopped near the motorcycle of the deceased. It is further proved that the pillion rider / Kuldeep Tomar got down and shot two bullets in the skull of the first motorcyclist, whereas pillion rider of first motorcycle starting running towards Braham Puri, but the assailant again fired on the pillion rider/ PW1 when he was running from there. This testimony of PW5 has duly corroborated the testimony of PW1 to this effect that the assailants also tried to kill him by firing from back. He has also identified the assailants / accused Kuldeep Tomar and Pardeep Tomar by pointing them out before the court to be those assailants. He has further corroborated that the accused Sanjay Tomar also tried to catch hold the running boy/PW1 at the corner of the street. Though PW5 stood by his testimony during his examination-in- chief as well as cross examination conducted initially, yet he has retracted of his testimony during his subsequent cross examination after the arrest of co-accused Mithlesh, but this retraction is of no use. However, this aspect of testimony of PW5 FIR No. 398/2006 State vs. Sanjay Tomar etc. 43/129 shall be dealt with after examination of the testimony of PW4, who has also supported the testimony of PW1 to some extent.
36. Testimony of PW1 has also been corroborated by PW4 Rajesh Gupta to some extent. PW4 was running a shop near the spot of incident and PW5 has also corroborate this fact. PW4 has duly admitted that at about 1:30/2:00 pm, he was present at his shop when one motorcyclist came from the side of Barampuri road and stopped his motorcycle in front of the shutter of his shop. He heard some sound of firing of bullets and saw that two persons were running towards Bhrampuri through Street No.2. He has supported the testimony of PW1 during cross examination conducted by Ld. APP for State thereby admitting that this incident took place on 14.11.2006 and he also made his statement before the police that on 14.11.2006 at about 2:00 pm, two boys reached by a motorcycle from the side of main road Bhrampuri in the street leading to his shop and the pillion rider of the subsequent motorcycle got down and put a small fire arm on the skull of the first motorcyclist and hit two bullets and he witnessed it. Though he has not fully supported the prosecution on the point of identity of assailants, yet his partial testimony which has supported the prosecution may be used to corroborate the testimony of other witnesses upto the extent of support and has corroborated.
37. After going through the testimonies of the PW1, PW4 and PW5, it stands proved that the testimony of PW1 is intact despite his lengthy cross examination by the accused persons, whereas PW5 has supported him substantially and PW4 has supported partially on many material aspects except identity of assailants as accused. Now the issue arises, as to whether partial testimony of the PW4 may be utilized to corroborate the testimonies of other PWs or not? A testimony of partially supporting witness may also be relied upon to corroborate the testimony or circumstances FIR No. 398/2006 State vs. Sanjay Tomar etc. 44/129 deposed by any other witness. The principle 'False in uno falsus in omnibus' (false in one thing, false in everything) is not a mandatory rule of evidence in India and it is merely a rule of caution as held by the Hon'ble Supreme Court of India in Ram Udgar Singh v. State of Bihar (2004) 10 SCC 443 thereby relying upon State of Punjab v. Jagir Singh (1974) 3 SCC 277 and Lehna v. State of Haryana (2002) 3SCC 7 where it is held that :
"even if a major portion of evidence is found to be deficient, in case the residue is sufficient to prove the guilt of the accused, notwithstanding the acquittal of a number of other accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that the evidence has been found to be deficient to prove the guilty of the other accused persons. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end."
38. It is further held in case titled Bhagwan Singh v. State of Haryana, [1976] 2 SCR 921; Rabinder Kumar Dey v. State of Orissa, [1976] 4 SCC 233 and Syed lqbal v. State of Karnataka, [1980] 1 SCR 95 that;
"the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."
39. It is further held in Surendra Singh Rautela Alias Surendra Singh Bangali v. State of Bihar (Now state of Jharkhand) (2002) 1 SCC 266 that;
"the evidence of eye witness cannot be discarded merely because another eye witness had not supported the prosecution case and was declared hostile and conviction was upheld."
FIR No. 398/2006 State vs. Sanjay Tomar etc. 45/129 In view of the above said case law, it stands proved that the testimony of PW4 cannot be washed off just because he has not completely supported the prosecution. In fact, the testimony of PW4 can be definitely used to the extent of support to the prosecution.
40. Even the retracted testimony of PW5, during subsequent cross examination of witness after the arrest of co-accused Mithlesh, is also liable to be rejected on two aspects. Firstly, this witness was re-examined only for the purpose of the role assigned to co-accused Mithlesh against whom there were charges of conspiracy of murder only, whereas he was not a direct witness to prove such charges against her. Secondly, he changed his testimony after a long gap of his first examination before the court. His first examination was conducted on 07/09/2007, whereas his re-examination was conducted after the arrest of co-accused Mithlesh on 24/05/2011 and during this long period, it was quite possible that he might have won over by the accused persons, otherwise earlier he fully supported the prosecution despite lengthy cross examination, but retracted subsequently. As such, such retracted cross examination of PW5 may be ignored and only supporting version may be relied upon. The laid down by the Hon'ble Supreme Court has supported this version in Akil Alias Javed v. State (NCT of Delhi) / (2013) 7 SCC 125 that witness completely changing stand in cross examination and exculpating accused, cross examination held after delay of 2 months due to adjournment sought by defense counsel and an inference that witness has been won over/ improperly induced to change his stand and give false testimony may be drawn. Similarly, it is held in AIR 1991 SC 1853 that the shift in the statement of the PW after examination-in-chief may be to help the accused and the cross examination after a period of one month was rejected. In fact, shift in the statement of the PW5 after his earlier examination may be just to help the accused persons and such retraction of the PW5 from his earlier statement is of no use for accused.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 46/129
41. In fact, testimony of PW1 is a testimony of an eye witness as well as victim to prove the offence under section 307 r/w 120B IPC also, as accused Kuldeep Tomar also tried to kill him, whereas co-accused Sanjay Tomar tried to catch him at the corner of the street when he escaped from the spot, as proved by PW1 and PW5 together in sync with each other and there is no reason to disbelieve him. Though this witness did not hurt during the incident, yet his testimony cannot be disputed in the capacity of a victim in view of the law laid down regarding the reliability of testimony of a victim which may be made applicable to this case also. It is held in Abdul Sayeed V. State of Madhya Pradesh & others, (2010) 10 SCC 259 that:
"Weight is to be attached to the evidence of a witness that was himself injured in the course of occurrence and testimony of such witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. As such convincing evidence is required to discredit an injured witness. Similarly, in (2004) 7 SCC 629, it is reiterated that "the fact that the witness sustained injuries at the time and place of occurrence lends support his testimony that he was present during the occurrence. In case injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon".
As such, the minute description of the incident given by the PW1 and duly corroborated by PW5 and partially by PW4 has proved that all the witnesses have proved the major charges against the accused persons.
42. So far as contradictions in the testimony of PW1 are concerned, no doubt some contradictions have emerged during his testimony before the court viz-a-viz his statement under section 161 Cr.P.C., but such contradictions are minor in nature to affect the credibility of this witness. It has held in State of UP v. M.K. Anthony, (1985) 1 SCC 505 and Leela Ram v. State of Haryana (1999) 9 SCC 525 that the difference in some minor detail, which does not otherwise affect the core issue of the FIR No. 398/2006 State vs. Sanjay Tomar etc. 47/129 prosecution case, may be there but that by itself would not prompt the court to reject the evidence on minor variations and discrepancies. The observation of the Hon'ble Court is relevant as under : -
"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross- examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:
'155. Impeaching credit of witness - The credit of a witness maybe impeached in the following ways by the adverse party, or with the consent of the court, by the party who calls him (1) - xxxxxxxxxx (2). xxxxxxxxxxx (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;'
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to be 'contradicted' would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to 'contradict' the witness the cores- examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to 'contradict' the witness.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 48/129 In view of the above said case law, it stands proved that the contradictions in the testimonies of PW1 and PW5 have not effected the credibility of both witnesses. Rather these contradictions pointed out by the Ld. Defence Counsel have not been proved by seeking the explanation from the IO who recorded the statements of the witnesses u/s 161 CrPC and such contradictions remained unproved.
43. So the as the judgment titled Mukesh v. State 2017 (1) JCC 94 relied upon by the Ld. Defence Counsel is concerned, it is not applicable on the facts of this case as I have already observed that PW1 is not an interested witness. Similarly, the cases titled Tomaso Bruno & Anr. V. State of UP, Criminal Appeal No. 142 of 2015 and Randhir Singh v. The State 1980 Crl.L.J 1397 (Delhi ) have laid down a proposition that serious contradictions in testimonies of prosecution witnesses are fatal to any case. In fact, there is no difference of opinion regarding this proposition. However, these judgments are not applicable on the facts, as the testimonies of PW1 & 5 have no such material contradictions to doubt the case of the prosecution. Similarly, improvements in their statements are not fatal and rather could not be proved in view of law laid down in case titled Badruddin Rukonddim Karpude and Others v. State of Maharashtra, AIR 1981 SC 1223.
44. Besides the testimonies of PW1, PW4 and PW5, testimony of PW6 Chander Bhan is also relevant. PW6 was the informant of DD entry 7A recorded by the PCR on the basis of his information. He has also corroborated the testimony of PW1 that on 14/11/06 at about 2:00 pm, he was at his home when received a telephone message of Sarjan Singh (Sajjan Singh) that accused Pradeep Tomar and his brothers killed his son Krishan Kumar in Street No.2, Bhrahm Puri. He informed the police on 100 Number via his Landline No.22560091. It is further deposed that after receiving this information, he rushed to the spot and found that his son was lying dead. This FIR No. 398/2006 State vs. Sanjay Tomar etc. 49/129 testimony of PW6 has been duly corroborated by the contents of DD No-7A which is Ex.PW11/A and was proved by PW11. As such, contents of DD entry and testimony of PW11 have duly proved that the testimonies of PW1 and PW6 have duly corroborated the similar mode and manner of transmission of information to the police.
45. Further, the information flashed by the PW6 to police was is in the series of same incident as witnessed by PW1 and was also reported to the police in the similar manner as heard directly from the mouth of an eye witness and definitely may be considered an exception to the hearsay as laid down by Section 6 of the Evidence Act. Even the contents of his statement have been duly verified by the contents of DD entry No. 7A as well as by the statements of PW1 & PW5 and partly by PW4 which have fortified this information. Even police officials have also corroborated the testimony PW6 by recovery / discovery of the dead body of his son from the same spot of incident which has further certified the authenticity of information / testimony. As such, testimony of PW6 is definitely relevant u/s 6 of the Evidence Act and is admissible in law. The law laid down to consider such testimonies under section 6 is well defined by case titled Gentela Vijayauardhan Rao Vs. State of A.P. reported in 1996 (6) SCC 241 as under:
"The principle of law embodied in section 6 of the Evidence Act is usually known as the rule of res gestae recognized in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue as to form part of the same transaction that it becomes relevant by itself. This rule is roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however, slight it may be, which FIR No. 398/2006 State vs. Sanjay Tomar etc. 50/129 was sufficient enough for fabrication then the statement is not part of res gestae."
46. Similar view was taken in another case titled Parsadi Ram Vs. State of M.B. (Chhattisgarh) reported at 2007 (1) F.J.C.C. 145 and observed that in order to hold the statement res-gestae, it has to be remembered that the statement should be reasonable, contemporaneous and also spontaneous, which is very well there.
47. In view of the above said case law as well as legal proposition, it stands proved that the testimony of PW6 is admissible to corroborate the testimonies of PW1, PW5 and other police officials. Though Ld. Counsel for the accused has argued that the information given by the PW6 to the police vide DD No. 7A was not similar to the statement of PW1 and PW5 to form a part of same transaction, yet this objection has no substance. PW1 has duly proved that he informed the father of the deceased by his mobile phone regarding this incident of killing of Krishan Kumar and PW6 has corroborated this information which was also passed on to police and has formed the part of same series. This information was definitely connected to the fact in issue to form the part of same transaction regarding the incident as well as involvement of the accused and becomes relevant. In fact, it does not make any effect if the name of co accused was disclosed in the information instead of main accused and it shall not effect the admissibility of the information to implicate the accused.
48. Further, the testimonies of PW1, PW5 and PW6 have been duly corroborated by the contents of rukka Ex.PW33/A, as per which, 3 fired cartridges were found at the spot of incident besides a dead body of Krishan Kumar. Rukka has proved the incident of firing of such bullets by the accused Kuldeep Tomar as proved by the witnesses. The site plan of the spot of incident which is Ex.PW20/B has proved the points A to C regarding this incident. Though Ld. Counsel for accused has argued that FIR No. 398/2006 State vs. Sanjay Tomar etc. 51/129 the rough site plan has not proved the exact locations of the deceased, accused and other witnesses, yet the scaled site plan has duly proved all such locations very precisely. The Seizure Memo Ex.PW20/D has also corroborated that three bullets were fired by the assailants and all fired cartridges were recovered from the spot, whereas the testimony of PW33 SI Pramod Kumar has proved that there was a distance of about 10 Ft. between the cartridges, as two fired cartridges were found near the dead body, whereas another was found about 10Ft away and photographs Ex.PW2/9 and Ex.PW2/10 have proved it. PW7 SI Etendra Swaroop Yadav, PW10 Ct. Narsh Kumar and PW33 SI Pramod and IO Insp. Dinesh also witnessed these 3 cartridges lying at the spot and have duly corroborated the testimonies of PW1, PW4, PW5 and PW6.
49. The Hon'ble Supreme Court has categorized the reliability of witnesses in three categories as laid down in case titled Vadivelu Thevar v. State of Madras AIR 1957 SC 614 as under:
(a) Wholly reliable.
(b) Wholly unreliable. and
(c) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way, it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will FIR No. 398/2006 State vs. Sanjay Tomar etc. 52/129 be indirectly encouraging subornation of witnesses.
50. After going through the testimonies of above said witnesses, it stands proved that the PW1 was present at the spot with the deceased on the same motorcycle during this incident and also witnessed that accused Kuldeep Tomar shot him and this testimony is wholly reliable and needs no corroboration. Similarly, testimony PW5 is also reliable, whereas PW4 has duly corroborated the testimonies of both witnesses. As such, testimonies of all witnesses are reliable and are sufficient to prove this incident viz-z-viz involvement of accused persons namely Kuldeep Tomar, Sanjay Tomar and Pradeep Tomar to this incident.
51. Nature of Death: Though the testimonies of the PW1, PW4 and PW5 have duly proved that the death of the deceased Krishan Kumar was result of by firing bullets by accused Kuldeep Tomar, yet it has to be seen as to whether the nature of death was in consent with the testimonies of the witnesses or not. To prove the nature of the death - whether it was suicidal or homicidal, medical evidence has to be seen. Though medical opinion is only advice and cannot supersede the testimony of an eye witness, yet it corroborates the mode and manner of causing injuries by the accused in the similar manner as proved by the witness. The object of medical evidence is corroborative as held in Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 that Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defense can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whosoever of injuries: taking place in the manner alleged by eye witnesses, the testimony of eye witnesses cannot be thrown out on the ground of alleged in consistency between it and the medical evidence. In fact, the medical evidence has to be interpreted in FIR No. 398/2006 State vs. Sanjay Tomar etc. 53/129 the corroborative manner to the testimony of eye witness and to give the strength to his statement or contradict him.
In view of the above said case law, the injuries sustained by the deceased and caused by the accused were in similar manner as proved by PWs and medical evidence has corroborated it.
52. Admittedly, deceased Krishan Kumar died on the spot just after sustaining bullets fired by accused Kuldeep Tomar. He was subjected to Post Mortem in GTB Hospital and this Post Mortem Report is the main document to determine the nature of injuries as well as cause of death. PW19 Dr. Atual Gupta has proved this Post Mortem Report of the deceased prepared after conducting the Post Mortem by Dr. Barkha Gupta. This Post Mortem Report Ex.PW19/A contains the following external injuries as under:
External Injuries:
1. Muzzle impression 1.8 x 1.5 cm containing the firearm entry wound 1.3 x 1.0 cm present on right of face situated 3.0 cm outer from right eye and 8.5 cm about the right angle of mandible. On exploration the tracts of the wound going downward, interiorly and medialy fracturing the zygomatic bone and bullet was recovered from medial side of right eye socket the depth of the wound was 9.0 cm. Bullet No.1 length 1.0 cm, diameter 0.7 cm, copper colum.
2. Firearm entry wound 2.3 x 1.2 cm present on right occipital Region situated 5.0cm right from midline and 4.0 cm above occipital protuberance. After entering into the skull the tracks of the wound going anteriorly downward and to the left through the brain and passing through the left side of foramen magnum and fracturing the transverse process of vertebrae bullet was found lodged near transverse process of C4 vertebrae on the left side. Small bone pieces were present inside the FIR No. 398/2006 State vs. Sanjay Tomar etc. 54/129 brain matter depth of the track was 16.0 cm. Bullet No.2 copper colum length 1.3 cm and diameter 0.8 cm.
3. Lacerated wound 1.7 x 0.6 cm bone deep, present on left occipital region situated 0.5 cm left from middle and 4.5 cm above occipital protuberance.
4. Time of Death: Time since death-about one day.
5. Scalp: As mentioned in injury no 1, 2 & 3. Extravasations of blood present in right occipital and temporal area, hemorrhage present in right temporalis muscle.
6. Cause of Death: Cause of death is shock due to anti mortem head injury caused by projectile of fire arm. Injury no.2 is sufficient to cause death in ordinary course of nature, All the injuries are ante mortem in nature and recent origin.
After going through the postmortem report Ex.PW9/A, the cause of death stands proved that the deceased was shot by accused in the same manner as deposed by PW1 and PW5. As such, death of deceased was not natural or suicidal, but was homicidal/murder. Even the injuries sustained by the deceased were possible to be caused in this manner as proved by the testimonies of PW1 and PW5.
53. Further, the weapon of offence i.e. pistol used by the accused to cause injuries was fire projectile and was capable to cause such injuries. Two bullet pallets were recovered from the brain area of the deceased, as recovered by the doctor who conducted the post mortem and these bullets were handed over to IO in a sealed condition, as mentioned in the post mortem report itself. IO seized these bullets vide seized vide seizure memo Ex.PW20/D and thereafter, submitted with FSL. FSL report Ex.PW35/N has duly proved that the bullets were fired by the same weapon Ex.PW21/1 (Ex.P1), which was seized vide seizure memo Ex.PW21/E at the instance FIR No. 398/2006 State vs. Sanjay Tomar etc. 55/129 of accused Kuldeep Tomar, in the presence and production of PW 32 Jaipal Singh, Subedar Major. This weapon was licensee and license was issued in the name of accused Kuldeep Tomar and was used during this incident, and this projectile firearm was also capable to cause such injuries to the deceased, as sustained, to cause his death. As such, the testimonies of PW1, PW4 & PW5 have been duly corroborated by the medical evidence that this weapon of offence is connected to this offence. Even the time of death as well as the mode and manner of this death is also in correlation with each other and this murder was committed by accused Kuldeep Tomar and others. No doubt FSL and medical reports are only opinion but still they have corroborative value to the main evidence against the accused. Again, the judgment titled Mukesh v. State 2017 (1) JCC 94 relied upon by the Ld. Defense Counsel on this point is not applicable on the facts.
54. Arrest and Recovery of weapon of offence at the instance of accused:
Admittedly, all the accused have been arrested in this case. PW1 Sarjan Singh has proved the arrest of accused Sanjay Tomar after about 7-8 days of this incident by PW33 SI Pramod Kumar from 4th pushta vide arrest and personal search memo Ex.PW1/C and Ex.PW1/D. Accused also made his disclosure statement Ex.PW1/E and led the police to his House No. J-123, Street No.2, Kartar Nagar wherefrom he got recovered Driving License, some documents and two live cartridges from the room of co-accused Kuldeep Tomar. Arm License of pistol was also recovered and seized vide seizure memo Ex.PW10/A. Accused also pointed out the spot of incident vide pointing out memo Ex.PW10/B. Accused Sanjay Tomar also led to the arrest of co-accused Neeraj Kumar from his house at Noida vide arrest and personal search memos Ex.PW1/G and Ex.PW1/H. Accused Neeraj also made his disclosure statement Ex.PW1/J and led to DK Cyber Café wherefrom he got issued two mobile SIMs against his IDs for the use of accused persons and disclosed that those SIMs were FIR No. 398/2006 State vs. Sanjay Tomar etc. 56/129 handed over to accused Sanjay Tomar for evading the arrest of accused persons. Neeraj also got seized the documents pertaining to issuance of mobile SIMs which have been relied upon by the PW15 Vinod Bhadana but proved by Nodal officers of Telecommunication Companies i.e. PW29 Anuj Bhatia, Hutch Company and PW30 R. K. Singh, Airtel Company. They have also proved documents against which connections were issued as Ex.PW29/A to Ex.PW29/F & Ex.PW30/A to Ex.PW30/F.
55. Accused Kuldeep Tomar was arrested from his office vide arrest and personal search memos Ex.PW21/A & Ex.PW21/B. He also made his disclosure statement Ex.PW21/C thereby admitting his guilt and also that he had deposited weapon of offence with his office / Army Koth /10 th Rashtriya Riffles. This fact has been duly proved by PW32 Jai Pal Singh as well as PW21 Ct. Virender Singh. This weapon of offence was a licensee pistol and was registered in the name of accused Kuldeep Tomar itself, who was posted with 10 th Rastriya Riffle, J &K. On 30/11/2006, IO Insp. Dinesh Sharma, Ct. Satish Rana and Ct. Virender went to Doda, J&K and arrested accused from his office in the presence of Major Vinay Dubey. IO seized his leaves report/record for the period from 14.11.06 to 18.11.06 and he joined his job after availing the leaves on 18/11/2006. He deposited his personal pistol along with cartridges with Army Koth and same were seized by police vide seizure memo Ex.PW21/E. The sketch of pistol is Ex.PW21/D. Accused also pointed out the spot of incident and got prepared pointing out memo Ex.PW21/F. All the above said accused persons were given an opportunity to participate in TIP proceedings but they deliberately refused to participate despite knowing the consequences of such refusal. As such, the arrest of above said accused persons as well as recovery of weapon of offence at the instance of accused Kuldeep stand proved.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 57/129
56. Accused Ram Bharose and Mithlesh absconded after this incident and accused Ram Bharose was arrested by the police officials of PS Ambedkar Nagar under section 41.1. Cr.P.C. and intimation was given to PS New Usmanpur about his arrest vide DD No-38B, which is Ex.PW35/J. Ram Bharose was produced before the court concerned and was arrested vide arrest and personal search memo Ex.PW26/A and Ex.PW26/B. He made his disclosure statement Ex.PW26/C. Accused Pradeep Tomar was also arrested by the police officials of PS Ambedkar Nagar, and on receiving the information of arrest from PS concerned, IO/ Insp. Dinesh Singh interrogated and arrested him in jail after obtaining the permission from the court concerned and arrested vide arrest and personal search memo Ex.PW35/K & Ex.PW35/L. He made his disclosure statement Ex.PW35/M. He also made his disclosure statement Ex.PW10/C and led to the police team to the spot of incident and pointed out the spot of incident vide pointing out memo Ex.PW10/B. Again, on 18.03.2010, accused Mithlesh, who had already declared PO, was arrested from her house vide arrest and personal search memos Ex.PW36/A and Ex.PW36/B. She also made his disclosure statement Ex.PW36/C. However, nothing was recovered at the instance of other accused except Kuldeep Tomar, but their arrest in this case stand proved.
57. However, Ld. Counsel for the accused has argued that this recovery of weapon of offence was not beyond doubt as the weapon was recovered from Army Koth as proved by PW32, but in-charge of Koth was not made witness to this recovery to prove it. Even he has also not been examined before this court. It is further argued that even no independent witness has joined recovery or arrest proceedings due to accused persons are entitled for benefit of doubt. However, this argument has no substance. Admittedly, arrest of the accused Kuldeep Tomar was made from his office and PW32 has duly proved it. Leave record of the accused Kuldeep Tomar has proved that he availed leaves and rejoined on 18/11/2006 after this incident and was in Delhi during FIR No. 398/2006 State vs. Sanjay Tomar etc. 58/129 this period, especially on the day of incident. Not only this, he accompanied this weapon of offence to his place of posting after committing the offence and deposited with Army Koth and proceeded to his place of posting in heights. Police team waited for many days to arrest him and stayed there. The officials of Army Koth handed over this pistol to IO in the presence of PW32 who has duly proved it. If an official witness has joined the recovery proceedings, then it cannot be doubted merely because no outsider joined into arrest and recovery proceedings. This weapon of offence used to be in the possession and retainership of the wife of accused Kuldeep Tomar, but he suddenly accompanied it to his office and deposited with official depository just to avoid its detection and has proved his involvement.
58. This pistol was the only weapon of this offence and was used by accused Kuldeep Tomar and was also recovered and seized at his instance. Weapon was sent to FSL for examination by FSL experts regarding its use as well as connection to the alleged incident and the same has connected to the fired cartridges recovered from the spot of incident, of which, recovery has already been proved by PW7. Even the bullet leads recovered from the dead body also tallied with this weapon. In fact, there is no doubt Kuldeep Tomar was in possession of this weapon of this offence and shot the deceased.
59. This recovery of the weapon of offence was in pursuance of disclosure statement of the accused and shall be admissible u/s 27 of Evidence Act. Accused Kuldeep Tomar was in police custody when he disclosed this information and PW32 has duly corroborated this fact. Any information furnished by accused in custody leading to any recovery or discovery of a new fact is very well admissible u/s 27 of Evidence Act. The law to this effect has been laid down by the Hon'ble Apex Court in case titled Mohd. Arif Alias Ashfaq v. State (NCT of Delhi) (2011) 13 SCC 621 as FIR No. 398/2006 State vs. Sanjay Tomar etc. 59/129 under;
"The essence of the proof of a discovery under section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was relevant and material discovery which proceeded in pursuance of information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the court but if the court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement in pursuance of that information some material discovery has been effected than the aspect of discovery will not suffer from any vice and can be acted upon." In view of the above said law laid down by the Hon'ble Apex Court, the recovery of the weapons and other articles is very relevant as well as admissible against the accused persons.
60. Further, it is held in case titled Pankaj v. State of Rajasthan, (2016) 16 SCC 192 that:
23. An objection was raised by the learned Senior Counsel for the appellant-
accused that recovery of firearm at the instance of the appellant-accused was planted by the police and it could not have been relied upon. This Court, in a number of cases, has held that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct under Section 8 of the Evidence Act, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.
In view of the above said law, it stands proved that all the accused were duly arrested by police and accused Kuldeep Tomar led to the recovery of this weapon of offence used during this incident in pursuance of his disclosure statement of which use has duly proved by FSL report. The argument of Ld. Defence Counsel that this recovery is not reliable for the want of public witness and has no force, as PW32 was also a public witness to authenticate this recovery and PW21 was also competent witness in view of Tahir v. State, 1996 (3) SCC 338 and Anter Singh v. State of Rajasthan 2004(10) SCC 657 in which it is held that police officials are competent witnesses FIR No. 398/2006 State vs. Sanjay Tomar etc. 60/129 and there is no such principle that they are not competent witness or should be supported by some public witnesses. As such, arrest of all accused as well as recovery of weapon of offence stands proved beyond doubt.
61. Identity of Accused Persons: The identity of all accused persons in this case stands proved. Some of the accused persons like Neeraj, Ram Bharose and Mithlesh were the accused of conspiracy and their role was not pertaining to their direct presence at the spot. Accused Kuldeep Tomar, Pradeep Tomar and Sanjay Tomar were directly involved to this case and have been duly identified by PW1 and PW5 besides police officials to be the assailants and this fact has already been discussed in detail. The other accused are relatives of Laxmi Tomar or family members and their identity i.e. Ram Bharose and Mihtlesh as parents of Laxmi Tomar and accused Neeraj as relative / brother-in-law of Sanjay Tomar is not disputed. Even otherwise they are accused of criminal conspiracy which was hatched behind curtain due to their role is confined to it.
62. Ld. Counsel for the accused persons has argued that identity of accused Kuldeep Tomar, Prdeep Tomar and Sanjay Tomar is disputed as assailants. It is further argued that PW1 Sarjan Singh has failed to prove that both accused namely Kuldeep and Pradeep were not wearing helmets due to their identity stands disputed. However, this argument has not substance. No doubt PW1 has deposed during cross examination that he did not remember as to whether assailants on the motorcycle were wearing helmets or not, but he has also deposed that he knew the accused persons and identified them at the spot itself and prior to it as well. Even PW4 Rajesh has also corroborated that both the assailants were not wearing helmets and similar fact has been deposed by PW5 Ranjeet. As such, identity of accused as assailants stands proved.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 61/129
63. Besides it, all the accused persons namely Kuldeep, Pradeep and Sanjay Tomar were given opportunity to participate in TIP proceedings, but they refused for TIP despite knowing the consequences and adverse consequences of such refusal and now adverse inference has to be drawn against them. Even otherwise they have also not disputed TIP proceedings during their statements u/s 313 CrPC and replied as "Matter of Record". As such, now they cannot take benefit of this refusal. The law to this effect has laid down in case titled Munna v. State (NCT of Delhi), (2003) 10 SCC 599 that;
10. In a case where an accused himself refuses to participate in a test identification parade, it is not open to him to contend that the statement of the eyewitnesses made for the first time in court, wherein they specifically point towards him as a person who had taken part in the commission of the crime, should not be relied upon. This plea is available provided the prosecution is itself responsible for not holding a test identification parade. However, in a case where the accused himself declines to participate in a test identification parade, the prosecution has no option but to proceed in a normal manner like all other cases and rely upon the testimony of the witnesses, which is recorded in court during the course of the trial of the case.
64. In this case also, all three accused refused to participate in TIP and now they cannot dispute their identity. The purpose of TIP is just to establish the identity of an unknown assailant and this purpose is well defined in case titled State of Maharashtra v. Suresh [(2000) 1 SCC 471 as under:
"We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence."
FIR No. 398/2006 State vs. Sanjay Tomar etc. 62/129 In view of the above said case, though holding of TIP of the all accused was not necessary, yet the prosecution hold TIP of accused who executed this criminal conspiracy of killing the deceased and were duly present at the spot of incident, but refused to avail this opportunity and their identity as assailants stands established.
65. Whether prosecution has proved the connection of the accused persons to the commission of the offence of criminal conspiracy for which they have been charged- All the accused persons have been charged for multiple offences and their implication for such offences has to be seen. The first and main offence against all accused persons namely Neeraj, Mithlesh, Ram Bharose, Kuldeep Tomar, Pradeep Tomar and Sanjay Tomar for the criminal conspiracy of murder of deceased Krishan Kumar. Even separate charge has been framed against them to this effect. All the above said accused allegedly hatched a criminal conspiracy to eliminate the deceased Krishan Kumar, who got married with Laxmi Tomar i.e. sister/ daughter of the accused persons against their wishes. Even the deceased belonged to lower SC community and accused persons were not happy with this marriage. Accused Neeeraj is also relative of the other accused i.e. brother in law of accused Sanjay Tomar and assisted them in this conspiracy.
66. To ascertain the involvement of all the accused in this conspiracy, legal provision as well as evidence led by the prosecution has to be seen. Conspiracy has been defined under section 120A IPC which is punishable under section 120B of IPC are as under:
Section120A- When two or more persons agree to do, or cause to be done .-
(1) all illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy;
FIR No. 398/2006 State vs. Sanjay Tomar etc. 63/129 Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120 B. Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]
67. In view of the above said definition, the elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statute required an overt act. As such, "The essence of this criminal conspiracy is the unlawful combination and ordinarily this offence is complete when combination is framed. From this it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors FIR No. 398/2006 State vs. Sanjay Tomar etc. 64/129 with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See: American Jurisprudence Vol. II Sec. 23, p.
559)."
68. For an offence punishable under section 120-B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
69. Normally there cannot be a direct evidence in case of criminal conspiracy and any agreement between persons to do an illegal act or any legal act by illegal means may be proved either by direct evidence or by circumstances or by both. However, it is a matter of common experience that direct evidence to prove conspiracy is rarely available and usually circumstances before, during and after occurrence have to be considered and proved to decide about the complicity of accused to a conspiracy. Privacy and secrecy are the characteristics of this conspiracy as direct evidence of a conspiracy is seldom available. In fact, it is not always possible to give affirmative evidence about the date of the formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in FIR No. 398/2006 State vs. Sanjay Tomar etc. 65/129 which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
70. In a case, if agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub-section (2) of Section 120 A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, to commit the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in section 120B [See: S.C. Bahri v. State of Bihar, AIR (1994) SC 2420.
71. Criminal conspiracy is a matter of discussion in many cases before the Hon'ble Apex Court and one of such leading case titled Kehar Singh and Ors. v. The State (Delhi Administration), AIR (1988 )SC 1883 and the observation of the court is as under;
"Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently FIR No. 398/2006 State vs. Sanjay Tomar etc. 66/129 pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other materials. (See: State of Bihar v. Paramhans, (1986) Pat LJR 688.
To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary, In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use Finally, when the ultimate offence consists of a chain of actions, i would not be necessary for the prosecutions to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do so, so long as it is known that the collaborator would put the goods or service to an unlawful use . (See State of Maharashtra v. Som Nath Thapa, J] (1996) 4 SC 615.
We may usefully refer to Ajay Agarwal v. Union of India and Ors., JT (1993) 3 SC 203. It was held:
"8...........It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of conspiracy. Conspiracy is conceived as having three elements. (1) agreement; (2) between two or more persons by whom the agreement is effected: and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones' case that an indictment for conspiracy must "charge a conspiracy to do an unlawful act by unlawful means" and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg, and House of Lords in unanimous decision reiterated in Quinn v. Leathem:
FIR No. 398/2006 State vs. Sanjay Tomar etc. 67/129 'A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rest in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; punishable of for a criminal object, or for the use of criminal means.' The Court in B.G. Barsay v. State of Bombay, held:
"The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the India Penal Code, an act would be illegal if it is an offence or if it is prohibited by law."
As such, it stands proved that the criminal conspiracy has to be proved with the circumstances indicating towards the aim and object likely to be achieved by this conspiracy and lack of direct evidence is not a ground to discard conspiracy.
72. Not only IPC, but section 10 of the Evidence Act has also prescribed the criteria of evidence to prove such conspiracy. Section 10 of Evidence Act is as under:
"10. Things said or done by conspirator in reference to common design.-- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
73. The language employed in section 10 makes it explicit that anything said or done by a co-conspirator in reference to their common intention to commit an offence FIR No. 398/2006 State vs. Sanjay Tomar etc. 68/129 after the time when such intention was first entertained by any one of them, would be relevant fact as against each of the co-conspirator. In a case titled Bhagwandas Keshwani and another vs. State of Rajasthan, (1974) 4 SCC 611, the Supreme Court has observed that in cases of conspiracy, better evidence than acts or statements of co-conspirators in pursuance of the conspiracy is hardly ever available. It was observed that any conspiracy to do an illegal act would invariably been drawn up in secrecy and therefore, independent witnesses may be hard to come by. As such, it was held that things said or done by a co- conspirator in reference to common design was admissible in evidence and could be used against the other accused(s).
74. This concept of section 10 is further explained in Ram Narayan Popli v. CBI, (2003) 3 SCC 641: 2003 SCC (Cri) 869 at page 779 that:
346. It was held that the expression "in reference to their common intention" in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only.
"... 'as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it'. ... In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour." (AIR p. 687, para 8) FIR No. 398/2006 State vs. Sanjay Tomar etc. 69/129 We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC (Cri) 561] held that to prove criminal conspiracy, there must be evidence, direct or circumstantial, to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
A joint reading of Section 120A & B IPC and Section 10 of Evidence Act made it clear that personal or active involvement of any conspirator in facilitation of main accused is not necessary and merely some facilitation to commit some crime is sufficient to become the part of criminal conspiracy.
75. Now the charges of criminal conspiracy against all accused persons have to be determined. Admittedly, accused Pradeep Tomar did not fire or cause any injury to the deceased or witness Sarjan Singh. He was just driving the vehicle and was accompanied with co-accused Kuldeep Tomar and was chasing the deceased by a motorcycle from Karkardooma Court, whereas accused Sanjay Tomar was deputed at FIR No. 398/2006 State vs. Sanjay Tomar etc. 70/129 the corner of the street to keep watch on the deceased/ victim and to apprehend him, in case of any escape from the clutches of his brothers. Similarly, co-accused Neeraj, Ram Bharose and Mithlesh also did not participate in crime directly, but they allegedly hatched the conspiracy to eliminate the deceased. The cause to this conspiracy was the marriage of Laxmi Tomar, who was sister of Kuldeep, Pradeep and Sanjay Tomar and daughter of Mithlesh and Ram Bharose, with Krishan Kumar who belonged to a lower Schedule Caste. All the accused wanted to get rid of this marriage as well as deceased.
76. Admittedly, PW34 Vikas Parihar has proved that his marriage was solemnized with Laxmi Tomar on 10/02/2005 and this fact has also been corroborated by IO/ PW35 that accused persons solemnized the marriage of Laxmi Tomar with PW34 in the month of April, 2006, whereas she was already married to deceased vide marriage certificate Ex.PW14/A. Even this fact was also verified by Laxmi Tomar and she acknowledged her marriage with deceased. However, deceased had been filing many cases before various courts including a Writ Petition before the Hon'ble High Court and also a case of Restation of Conjugal Rights before the Family Court at Karkardooma Courts, Delhi. These litigations of the deceased against accused as well as Laxmi Tomar to get his wife back irked them and they hatched a conspiracy to eliminate him.
77. Since this conspiracy was hatched within the four corners of the house and the sole witness of this conspiracy was PW12 Renu Chaudhary, who has turned hostile, due to now conspiracy has to be inferred from the circumstances emerged during the evidence. Though PW12 has admitted some facts about his statement, yet he has not fully supported the prosecution to prove this conspiracy. Accused Kuldeep Tomar killed the deceased Krishan Kumar by firing bullets on his head as proved by PW1, FIR No. 398/2006 State vs. Sanjay Tomar etc. 71/129 PW4, PW5 and PW6., whereas co-accused Pradeep Tomar was accompanied him and was driving the motorcycle by which they were chasing the deceased and pillion rider Sarjan Singh from Karkardooma Court. The other accused Sanjay Tomar was deputed at the corner of the Street to stop the deceased from escaping. All the three accused namely Sanjay Tomar, Pradeep Tomar and Kuldeep Tomar were directly involved in commission of this murder. Their pre-mediation of mind is well proved by the circumstances that accused Kuldeep Tomar availed leaves from his office and reached Delhi. They confirmed the presence of the deceased at Karkardooma Court and reached there with weapon by a motorcycle belonging to family itself, chased the deceased from Karkardooma Court to the spot of incident, whereas other accused Sanjay Tomar was deputed at the corner of the street to apprehend deceased, and all such circumstances have duly proved that they were acting in a pre-plan manner and were acting under conspiracy. It is pertinent to mention here that the deceased changed his route and took another way to reach his home, but accused persons also changed their route accordingly and executed this conspiracy. They were assigned their specific roles which they played during incident and killed him.
78. Accused Kuldeep Tomar not only killed Krishan Kumar as proved by the PWs, but also fired on the witness Sarjan Singh with intention to kill him, whereas other accused Sanjay Tomar also tried to catch him at the corner of the street when he escaped from the spot. This fact itself corroborates that it was not possible for all accused present during the incident to coordinate with each other without pre- planning. Rather presence of accused Sanjay Tomar at the corner of the street itself sufficient to prove that all accused were acting in connivance otherwise Sanjay Tomar was not supposed to be there. In fact, all the above said accused actively participated during this incident and executed the criminal conspiracy to kill the deceased and there is clinching evidence to this effect which has left no room of doubt that they did FIR No. 398/2006 State vs. Sanjay Tomar etc. 72/129 not act in furtherance of their common object to kill Krishan Kumar.
79. So far as accused Neeraj, Ram Bharosey and Smt. Mithlesh are concerned, though they were not directly involved in the murder of Krishan Kuamr, yet prosecution has cited and examined PW12 Renu Chaudhary @ Raj Kumar to prove their involvement to this criminal conspiracy, but he has turned hostile. PW13 Navneet Mohan Singhal, PW16 Devender Sharma and PW17 Raju Tomar were also citied to prove the logistic support to the accused persons after this incident, but again they have also not properly supported the prosecution despite their cross examination by Ld. APP for State. As such, there is no direct evidence against accused persons to prove that their direct involvement to this criminal conspiracy.
80. However, I have already observed that conspiracy is hatched in secrecy and may be proved just on the basis of circumstances against the accused. No doubt, incriminating circumstances against accused must be proved beyond doubt and should be established firmly. Charges against accused Neeraj, Ram Bharosey and Smt. Mithlesh are also pertaining to the criminal conspiracy due to incriminating circumstances should be proved against each of them firmly. From the testimonies of PWs as well as material available on record, the following circumstances are available against accused persons as under:
80.1. The first circumstance against accused Ram Bharose and Mithlesh is the second marriage of Laxmi Tomar with PW34 Vikas Parihar, which was admittedly solemnized and was not possible without their active consent as well as involvement.
Both accused were well aware that first marriage of their daughter was solemnized with deceased on 11/03/05 in Arya Samaj Mandir, Yamuna Bazar, Delhi. PW14 Pandit Dhananjay Divedi has proved the marriage vide certificate Ex. PW14/A. This certificate was coupled with other documents including affidavits of both parties to FIR No. 398/2006 State vs. Sanjay Tomar etc. 73/129 this marriage. PW35/ IO Insp. Dinesh Sharma has duly corroborated that Laxmi Tomar confirmed her marriage with deceased against this certificate. All accused solemnized the second marriage of their daughter against her wishes, which was an illegal act in itself, but they perpetuated it. In fact, this murder of first husband of Laxmi Tomar was only to ensure the survival of this second marriage of their daughter and was the main motive of this crime.
80.2. Admittedly, this marriage of deceased and Laxmi Tomar was love marriage solemnized in temple against the wishes of accused persons. PW1 & 5 have duly proved that the deceased and Laxmi Tomar started residing separately after this marriage and accused were not aware about her latest matrimonial address. However, to know the whereabouts of Laxmi Tomar, they kidnapped Krishan Kumar from Yamuna Bazar Mandir when he went to collect photographs of his marriage. They compelled the deceased to disclose the address of Laxmi Tomar and kidnapped her. This fact has been duly corroborated not by the oral testimonies of PW1 and PW6 but also by the police complaint lodged by the deceased against accused persons. The marriage solemnized on 11/05/2005, whereas the abovesaid incident of kidnapping was done on 16.03.05 and DD entry Ex.PW9/C has duly corroborated incident. As per the contents, accused Sanjay Tomar, Pradeep Tomar, Inderjeet and Raju kidnapped and beat the deceased and dumped him at 4 th pusta. He categorically named two accused of this case in this complaint which was lodged soon after the incident, but police did not take any action except lodging of a DD entry that the incident was pertaining to PS Kashmiri Gate. On the other hand, police officials of PS Kashmiri Gate hushed up the matter on the pretext of settlement, but it is not clear as to what was that settlement. MLC of deceased has fortified this incident. This incident is also verified by the fact that Laxmi Tomar switched over to the custody of accused persons despite residing with deceased at unknown place. All such development was not FIR No. 398/2006 State vs. Sanjay Tomar etc. 74/129 impossible without the active involvement as well as consent of the parents of Laxmi Tomar, otherwise they would have stopped their sons to cause such harassment to deceased and his family members.
80.3. Further, this marriage of deceased with Laxmi Tomar did not go well with accused persons and they started harassing and threatening deceased as well as family members. Complaint Mark PW6/B was made by Laxmi Tomar soon after marriage and she demanded police protection as well as action against her family members, as she was apprehending the murder of her husband and herself, but again police did not take any action on this compliant. On the other hand, accused started more harassments to deceased and his family members. They also kidnapped the family members of deceased including his father and this fact has again proved by another criminal complaint dated 14.03.05 which is Ex.PW6/D and was lodged with the Commissioner of Police. It is pertinent to mention here that this incident took place soon after 3 days of the marriage of deceased with Laxmi Tomar and she was residing separately. However, this compliant also met with the similar fate. In fact, deceased and his family members made repeated complaints against the accused, but in vain. Complaint Ex.PW6/E was lodged against Sanjay Tomar when he extended life threats to deceased and his family members. Even specific phone/landline numbers were also disclosed by which threats were being extended, but still no action was taken. Anotehr complaint Ex.PW6/C was also made by deceased to DCP concerned against kidnapping of his family members, but again same result. All such, all complaints have duly proved the involvement of the entire family of Laxmi Tomar in all harassments to deceased and his family.
80.4. Not only the harassment to the deceased was confined to his physical harassment, but once he was also implicated in a case FIR No. 104/2005 u/s 336/506/34 IPC & 25/27 of Arms Act registered with PS New Usmanpur. It is pertinent to mention here that a person who was FIR No. 398/2006 State vs. Sanjay Tomar etc. 75/129 running pillar to post to save himself would open fire on the house of accused persons to scare them. Rather it proves that he was being targeted by the family of Laxmi Tomar / accused persons to resist the company of his wife.
80.5. Further, police lodged a Kalandra against accused Ram Bharose & Other u/s 107/151 CrPC, which is Ex.PW35/D. Police bound down accused persons by this Kalandra to produce Laxmi Tomar before the High Court in a Writ Petition (Habeas Corpus). This Writ Petition was filed after the incident of kidnapping reported against DD entry Ex. PW9/C. Copy of Writ Petition is Ex.PW35/E. Accused Ram Bharose and Mithlesh produced Laxmi Tomar before the High Court from their custody, whereas earlier she was in the company and custody of deceased, and the observation of the Hon'ble Double Bench has corroborated that both the accused were also involved in the kidnapping of their daughter i.e. Laxmi Tomar. The Hon'ble High Court observed in order dated 07/04/2005 that the girl was adopting a vacillating position and appeared under pressure. After some hesitation, she finally states that she does not want to go with the petitioner and wants to live with her family. She was left Scot free on her free will to go with anyone. Both the accused namely Ram Bharose and Mithlesh were also counseled by the Hon'ble DB. Accused Mithlesh appeared before the Court whereas she was not party to this petition. They pressurized Laxmi Tomar to join their company instead of her husband and thereafter solemnized her second marriage with PW34 in Madhya Pradesh. It is pertinent to mention here that both accused they never disputed first marriage of Laxmi Tomar with deceased before the High Court. In fact, this illegal act of second marriage of Laxmi Tomar is sufficient to prove their active involvement in kidnapping as well as marriage and consequent killing of deceased as well.
80.6. Not only the above said Writ Petition, accused Ram Bhorase was also party to a Criminal Complaint filed under section 156(3) Cr.P.C. with the allegations that the FIR No. 398/2006 State vs. Sanjay Tomar etc. 76/129 accused persons including him were extending life threats to deceased and his family members. This fact also proved that he had due knowledge of all episode and was involved in entire incident with his wife Mithlesh. Even the contents of Kalandra lodged vide DD No.2A dated 08/04/2005 Ex.PW35/E (colly) have also corroborated their active involvement to this incident.
80.7. Admittedly, deceased had filed a Petition u/s Section 9 of Hindu Marriage Act against his wife Laxmi Tomar, copy of which is Mark PW6/E. Accused persons had already solemnized the second marriage of Laxmi Tomar with PW34, but consequences of such Petition u/s 9 of HMA could be compulsion of Laxmi Tomar to join the company of deceased. This situation could be disastrous for second marriage of Laxmi Tomar and also for the family reputation of accused. Even this fact has also found corroboration by the disclosure statements in which all accused have disclosed that deceased was not stopping of filing the cases against her, and the best possible option to avoid all such litigations and to stop the deceased was his elimination. This elimination of deceased not only stopped deceased from pursuing his litigation but also justified the second marriage of Laxmi Tomar with PW34. It was the probable cause for which they also did not allow Laxmi Tomar to appear before the court as well. As such, all such circumstances have proved that the entire family of accused was involved in this crime.
80.8. Another circumstance against the accused regarding this conspiracy is that the accused Kuldeep Tomar, who was serving with Army, availed the leaves for this purpose in a pre-plan manner. He visited Delhi and killed the deceased on 14/11/2006 and again left Delhi to join his office at Doda, J&K soon after this incident. He also accompanied with weapon of offence and joined his office on 18/11/2006. This fact has been duly proved by PW32. He not only reported to his unit at Doda, J& K but FIR No. 398/2006 State vs. Sanjay Tomar etc. 77/129 also deposited weapon of this offence with official depository / Koth, whereas earlier his wife was retaining the same weapon/ gun at Delhi being retainer. Rest of the evidence has already been discussed which has proved the involvement of other accused and everything such was not possible without a pre-meeting of mind of all accused.
80.9. Accused Pradeep Tomar was diving the vehicle used during this incident. He along with Kuldeep Tomar reached Karkardooma Court and thereafter continuously chased the deceased from Karkardooma Court to the spot of incident. He stopped the motorcycle just nearby to the motorcycle of deceased and facilitated Kuldeep Tomar to kill deceased. After killing the deceased, he along with co-accused fled away from the spot, which has proved that he was also part of this crime. Admittedly, accused persons were to perform a specific act to facilitate Krishan Kumar to conclude the crime and such overt act assigned or performed by them individually made them liable. Accused Pradeep Tomar was assigned the act of driving of the motorcycle and he successfully chased the deceased from Karkardooma Courts to the spot of incident and thereafter fled away from the spot after incident which has proved his participation in this conspiracy. Similarly, accused Sanjay Tomar was also part of this conspiracy and was assigned the act to remain present at the corner of the Street to keep check on the deceased, in case co-accused failed to execute their plan or deceased try to escape to apprehend him or to help his brothers in case of requirements. Involvement of Sanjay Tomar is also fortified by the fact that deceased changed his route and accused also changed his position accordingly and reached at the corner of the street in which deceased turned. Even he also tried to apprehend PW1 at the same place which suggests that he was actively involved during this incident.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 78/129 80.10. Another circumstance against all accused is their disclosure statements. Disclosure statements of accused persons have also proved their involvement to this incident. Their disclosure statements are well admissible against each other to corroborate the circumstances in view of section 30 of Evidence Act. Section 30 of Evidence Act came into interpretation before the Hon'ble Supreme Court of India in a land mark judgment titled Kashmira Singh v. State Of Madhya Pradesh, 1952 AIR SC 159 and has held as under:
"The confession of an accused person against a co-accused is not evidence in the ordinary sense of the term. It does not come within the meaning of evidence contained in sec. 3 of the Indian Evidence Act in as much as it is not required to be given on oath, nor in the presence of the accused and cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities. Such a confession can only be used to tend assurance to other evidence against a co- accused. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept".
In view of the above said facts, disclosure statements of co-accused Sanjay Tomar which is Ex.PW1/E, Neeraj which is Ex.PW1/J, Pradeep Tomar which are Ex.PW35/M and Ex.PW10/C, Kuldeep Tomar which is Ex.PW21/C, Mithlesh which is Ex.PW36/C and statement of Ram Bharose which are PW26/C and Ex.PW23/A, have duly proved that all the accused persons have acknowledged this conspiracy and they were part and parcel of it. The disclosure statements of above said accused persons are admissible against each other and may be utilized for corroboration of the FIR No. 398/2006 State vs. Sanjay Tomar etc. 79/129 other circumstances of this case against accused.
80.11. Further, the disclosure statements of all accused recorded by the police u/s 25 of Evidence Act are also relevant to some extent and cannot be discarded in entirety. The portion of the statement which is not confessionary regarding confession of guilt of the accused to commit offence is excluded by Section 25 and 26 of the Evidence Act is relevant. The observation of the Hon'ble Supreme Court made in Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 is material as under:
19. From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex.P-42, however is not wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and it is not hit by the provisions of section 25 of the Evidence Act. The relationship of the appellant with the deceased; motive for commission of the crime and the presence of his sister-in-law PW11 do not amount to the confession for committing any crime. Those statements are non confessional in nature and can be used against the appellant as evidence under section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sward had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ext. P42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.
80.12. It is further held in Sandeep v. State of UP, (2012) 6 SCC 107 that admissible portion of the confession of accused may be considered against accused and the relevant observation of the judgment is as under:
FIR No. 398/2006 State vs. Sanjay Tomar etc. 80/129
52. We find force in the submission of the learned Senior Counsel for the State. It is quite common that based on admissible portion of the statement of the accused whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the court as to the nature of recoveries and as to how they came into possession or for planting the same at the places from where they were recovered. Similarly, this part of the statement which does not in any way implicate the accused but is mere statement of facts would only amount to mere admissions which can be relied upon for ascertaining the other facts which are intrinsically connected with the occurrence, while at the same time, the same would not in any way result in implicating the accused in the offence directly.
As such, in view of the above said law, it stands proved that the disclosure statements of all the accused persons barring their admissions of guilt as well as mode and manner of committing the murder are admissible in law and may be used to corroborate the testimonies of PWs against them and also to connect the missing link of circumstances. All the accused persons have admitted in their disclosure statements that they conspired and hatched this conspiracy to eliminate the deceased just to get rid of him, as he was creating problems in the second marriage of Laxmi Tomar and was trying to get her back. This fact is relevant and corroborating to other circumstances.
80.13. The disclosure statements of the accused persons are admissible in law to the extent of information which they are leading to recovery of discovery of a new fact as per section 27 of Evidence Act. The law to this effect is well defined. In the present case, the disclosure statements of the accused persons have duly proved that many facts disclosed by them have been duly verified and became admissible against them. Accused Sanjay Tomar disclosed about the information of co-accused Neeraj that he provided the logistic support to them and also provided the mobile connections to evade their arrest. Both these facts have been duly verified by the accommodation of Neeraj as well as CDRs of mobile connection proved by PW15, 29 and PW30.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 81/129 Recovery of weapon of offence on the basis of accused Kuldeep Tomar, recovery of motorcycle by Pradeep Tomar, verifications of the court cases filed by the deceased are such information which were discovered in pursuance of disclosure statements only and became admissible. Disclosure statements of other accused also made similar discovery of facts as discussed above. This information has also proved the motive to accused to kill deceased and is incriminating circumstance against all.
80.14. Another circumstance against all accused persons is their replies to the above said disclosure statements put under section 313 CrPC. The reply of every accused would show that he/she has only replied "I don't know" or "I am innocent. I have been falsely implicated in the present case. Witnesses have falsely deposed against me as they are highly interested, planted and tutored and nothing beyond it". In fact, they have not denied these disclosure statements and that too without tendering any explanation of their false implication. If existence of disclosure statements has not been denied by the accused, then these may be definitely used against them to corroborate the other circumstances and may be considered incriminating circumstance against them.
80.15. Further, IO has also proved that all accused were arrested and made their disclosure statements, but accused have not cross-examined him on the point of arrest as well as disclosure statements. IO was put just simple suggestion that accused did not make any disclosure statement or their signatures were obtained forcibly, but how, why and in what manner, it is not explained. Accused persons were duty bound to tender an explanation as to what was the enmity of the police or complainant with them to implicate in a false case, but they have stated only that the witnesses are interested, but in what manner they are interested, they are silent. As such, prosecution has successfully proved the involvement of all accused to this criminal conspiracy to FIR No. 398/2006 State vs. Sanjay Tomar etc. 82/129 kill the deceased.
80.16. Besides the above said circumstances, post incident conduct of all accused is also relevant. Accused Kuldeep Tomar rejoined his duties with Army with weapon of offence, whereas accused Ram Bharose, Pradeep Tomar and Mithlesh fled away of their home. They absconded soon after this incident and this fact has been duly proved by the testimony of PW1, who along with police officials visited the house of accused to make recovery, but none of the accused was found there. Even police also declared reward of Rs. 10,000/- against the accused persons vide order dated 18/01/2008, which is already part of record. Accused Ram Bharose was arrested under section 41.1 Cr.P.C. on 06/02/2007 and made his disclosure statement thereby admitting his involvement to this case. He admitted that on 13.11.05, all the accused persons including his wife conspired to kill the deceased. By the time this accused made this statement was not arrested in this case, due to this statement may be used against him in view of his conduct admissible u/s 8 of Evidence Act. As such, it is also an incriminating circumstance against all accused that they conspired to kill the deceased.
80.17. Similarly, accused Mithlesh also absconded after this incident and similar reward was also announced against her by the police. She was also declared PO and was arrested only on 18/03/2010 which suggests that she deliberately absconded soon after this incident to evade her arrest. Accused Pradeep Tomar also absconded and was arrested on 11/03/2007 that too after announcement of similar police reward. This conduct of both accused has proved that they were part of this conspiracy. On the other hand, they have not tendered any plausible explanation for this conduct due to this conduct may be used as an incriminating circumstance against the accused persons.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 83/129 80.18. As such, prosecution has successfully proved beyond doubt that all the above said accused hatched a conspiracy to eliminate the deceased Krishan Kumar as he dared to get married with Laxmi Tomar against their wishes despite belonging to a lower community and the entire family was aggrieved. Accused namely Kuldeep Tomar, Pradeep Tomar and Sanjay Tomar were entrusted to execute this conspiracy and consequently accused Kuldeep Tomar killed him. Prosecution has proved the charges under section 120B IPC against all accused and they are liable for the same.
80.19. Not only the close family members of Laxmi Tomar like father Ram Bharose, mother Mithlesh, brothers Kuldeep Tomar, Sanjay Tomar and Pradeep Tomar, but other relative namely Neeraj was also involved in this conspiracy. He was entrusted the act of providing logistic support to accused persons after committing the murder of deceased. All the family members i.e. Kuldeep Tomar, Sanjay Tomar, Pradeep Tomar, Ram Bharose and Mithlesh reached at his house at E-210, Sector-27, Noida, UP after committing the murder and stayed there for a while. The other accused have disclosed this information in their disclosure statements and address of the accused Neeraj has duly verified this fact. Admittedly, Neeraj is permanent resident of H. No. 1179, Sector-19, Panchkul, Haryana, but he had taken on rent the above said house which was agreed to be used by the accused persons after this incident. He was agreed to perform this part under conspiracy being relative / sala of Sanjay Tomar and also provided mobile connections to evade their arrest. This fact has been duly corroborated by the disclosure statement of Sanjay Tomar and others as well.
80.20. The above said information disclosed by accused Sanjay Tomar in his disclosure statement that accused Neeraj provided them logistic support and also provided mobile SIMs to evade their arrest and it has been duly verified by the testimonies of PW15, PW29 and PW30. Neeraj got issued two mobile connections / FIR No. 398/2006 State vs. Sanjay Tomar etc. 84/129 SIMs against his name with two different addresses and against IDs which are already on record. Even the documents for issuance of such SIMs from cellular companies have further corroborated that Neeraj was privy of this conspiracy and was entrusted the act of arranging a room to provide shelter and also to arrange mobile SIMs which was duly completed by him. Similar facts have also disclosed in his disclosure statement Ex. Ex.PW1/J and have duly corroborated by the mobile numbers and relevant documents proved by abovesaid PWs and made it admissible u/s 27 of Evidence Act.
80.21. The testimony of PW1 has proved that the accused Sanjay Tomar disclosed name of Neeraj and police apprehended him from his house. In custody, accused led to a shop M/s D.K. Cyber Café owned by PW15 Vinod Bhadan wherefrom he purchased two Sims cards for accused. Though PW15 initially denied this record being lost somewhere, yet PW29 and PW30 have proved those documents used for issuance of such SIMs as well as CDRs of these numbers. Accused disclosed mobile numbers 98711811768 & 9811721933 provided to co-accused and CDRs of both numbers have corroborated this fact. CDR of mobile number 98711811768, which is Ex.PW30/E, has proved the frequent calls on 14/11/06 & 15/06/2006, by this number, whereas CDR of mobile number 9811721933, which is Ex.PW29/E, has proved the calls by this number on 15/11/2006. It is pertinent to mention here that CDRs of both numbers were sought for the period w.e.f. 01/11/2006 to 18/11/2006, but calls from these mobile connections were made only on the day of incident or next day which suggests that these mobiles connections were got issued only to facilitate the co-accused to evade their arrest, in which, they also succeeded for long. It is further pertinent to mention here that Neeraj got issued both connections on different addresses and has failed to tender any explanation as to why he got issued both connections on different addresses just to use for two days. As such, this fact proves that the information of FIR No. 398/2006 State vs. Sanjay Tomar etc. 85/129 disclosure statements of accused Neeraj stands verified that he was part of this conspiracy and provided not only logistic support to co-accuse but also provided mobile SIMs to evade their arrest from police. Though providing support to fugitives of law is already a punishable offence, yet accused has not been facing such charges, due to it is not a matter of consideration to this case, but this circumstance stands proved against him.
80.22. Admittedly, conspiracy prescribes a pre-meeting of minds of all conspirators to commit some illegal act or any legal act by illegal means and specific part is assigned to assist the main executants to execute the object of conspiracy. Such pre- meeting of mind prior to actual execution of conspiracy whatsoever may be slight or sometimes even without the actual knowledge of main plan by all, but it cannot lighter the burden of conspirators. Conspiracy is not limited to the execution of main plan but also extended to the post conspiracy act which was agreed to be performed while hatching the conspiracy prior to its execution. In this case also, Neeraj arranged and agreed for providing the logistic support to the co-accused soon after this incident and also arranged SIMs for them to remain connected to each other also to evade their arrest which was definitely part of this criminal conspiracy and made them liable.
80.23. In view of the above said discussion of the evidence and circumstances against each accused, it stands proved that all the accused were duly involved to this conspiracy and all are liable.
81. Under Section 302 r/w 120B IPC: All the accused persons have been charged for this offence. I have already discussed herein above the relevant evidence as well as circumstances against each accused and the prosecution has duly proved that all the accused in furtherance of their common object hatched a criminal conspiracy to eliminate the deceased Krishan Kumar, as he belonged to SC community, but still got FIR No. 398/2006 State vs. Sanjay Tomar etc. 86/129 married with Laxmi Tomar against their wishes. The entire conspiracy was hatched to eliminate him. However, it is to be seen as to whether prosecution has satisfied the ingredients of murder against accused persons or not. The definitions of culpable homicide and murder are as under:
Section-299. - Culpable Homicide- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section-300.- Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is does with the intention of causing death, or-
Secondly.- if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.- If it is done with the intention of causing bodily injury to any persons and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly.- If the person committing the act knows that it is so imminently angerous that it must, in all probability, caused death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception1.- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other persons by mistake or accident.
The above exception is subject to the following provisos:-
First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any persons.
Secondly.- That the provocation is not given by anything done in obedience to law, or by public servant in the lawful exercise of the powers of such public servant.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 87/129 Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defense.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes the death of the persons against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary of the purpose of such defense.
Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken due advantage or acted in a cruel of unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
82. The ingredients of the culpable homicide viz-a-viz murder would show that the causing of death with intention or knowledge, or such bodily injury to anyone which is likely to cause death is covered under culpable homicide. Even the exceptions 1 to 5 of section 300 are also covered by culpable homicide and punishable under this category. However, if death or bodily injury was sufficient to cause death of the deceased and was caused with pre-determination of mind i.e. intention and knowledge, then it is a case of murder. Further, if the injury was immediately dangerous or probable within the knowledge of inflictor, then it is a case of murder. As FIR No. 398/2006 State vs. Sanjay Tomar etc. 88/129 such, this case has to be determined on the basis of above said ingredients.
83. An elaborate discussion of criminal conspiracy has already been done of which all the accused were part of. They hatched this conspiracy to eliminate the deceased and accused Kuldeep Tomar shot the deceased in consequence of such conspiracy. Pradeep Tomar drove the vehicle by which they chased the deceased from Karkardooma Courts to the spot of incident, whereas co-accused Sanjay Tomar remained present at the corner of the street to catch/ apprehend him, presumably if co- accused fail to execute their plan to kill the deceased or deceased try to escape from the spot, he could catch him or probably execute such plan himself. As such, all were active participant of this crime.
84. Eye witness PW1 Sarjan Singh is material witness to prove this offence against the accused persons. He is the main witness who was not only an eye witness to this incident but also a victim of this incident, as accused Kuldeep Tomar also tried to kill him, whereas Sanjay Tomar tried to apprehend him, but he eventually escaped. PW1 has categorically deposed that on 14.11.06, he was with the deceased Krishan Kumar as pillion rider on his motorcycle and they were going back to the home after attending a court case at Karkardooma Court. At about 2:00 pm, they reached at Street No. 2 but the same was blocked by a DCM Toyota vehicle as well as rickshaws, due to deceased Krishan Kumar stopped his motorcycle when accused Kuldeep Tomar and Pradeep Tomar reached there by another motorcycle and Kuldeep Tomar shot two bullets by his pistol on his head and caused his death. It is further proved that the deceased fell down with his motorcycle, whereas PW1 ran away. It is further proved that accused Kuldeep Tomar also fired one bullet on him/PW1 by aiming with intention to kill, but bullet missed its target. He has further proved that he ran away from the spot, but at the corner of the street co-accused Sanjay Tomar tried to catch FIR No. 398/2006 State vs. Sanjay Tomar etc. 89/129 him, however he escaped and informed the father of the deceased about this incident. This testimony of PW1 is almost un-rebutted on this aspect despite a lengthy cross examination by the accused persons. He stood by his testimony in entirety and whatever contradictions have appeared during his cross examination are negligible. Even otherwise some contradictions are expected during lengthy testimony of a witness whatsoever he may be honest, especially when witness has been examined after a long gap of incident.
85. Not only PW1, but PW5 also has corroborated the mode and manner of causing this incident by the accused persons. PW5 is an independent witness to this incident who was present at the shop to purchase the households when this incident was caused by accused. PW5 witnessed this incident and has deposed all the facts beyond doubt that he witnessed this incident of shooting to kill deceased. He has further proved that accused Kuldeep Tomar also tried to kill witness by firing another bullet aiming to him and has further corroborated the presence of co-accused /Sanjay Tomar who also tried to catch witness at the corner of the street. As such, PW5 has duly proved the involvement of accused persons and other PWs have duly corroborated him.
86. Though Ld. Counsel for the accused has argued that the testimony of PW5 is not reliable as he later turned hostile and testimony of such a witness is not trustworthy, yet this plea has already been dealt with and found not sustainable. In fact, both the above said witnesses have duly proved that accused Kuldeep Tomar killed the deceased Krishan Kumar by firing two bullets from a close range and also tried to kill PW1 by firing on him, but he escaped. Initially, PW5 fully supported the prosecution despite his lengthy cross examination, but during his re-examination after the arrest of co-accused Mithlesh, he failed to support the prosecution, but it was of no use. In fact, subsequent re-examination of PW5 has already been rejected by this court FIR No. 398/2006 State vs. Sanjay Tomar etc. 90/129 and testimonies of eye witnesses as well as other supporting witnesses have duly proved that accused Kuldeep Tomar, Pradeep Tomar and Sanjay Tomar caused this incident, whereas the other accused namely Neeraj, Ram Bharose and Mithlesh supported them under a conspiracy to eliminate Krishan Kumar.
87. Further, PW4 has also corroborated the testimonies of PW1 and PW5 by categorically proving the incident of killing of a motorcyclist by two other unknown motorcyclists in front of his shop. He has further corroborated that his customers were saying that a firing incident had taken place and he witnessed that a motorcyclist was lying dead there and one of his legs was on the motorcycle. He further witnessed that two persons were running away from the spot by a motorcycle and he witnessed them from behind. On the other hand, PW5 has corroborated his presence in his shop at the time of this incident when he was purchasing the households from his shop. As such, presence of PW4 and PW5 at the spot during incident stands proved.
88. Further, PW6 has also corroborated the testimony of PW1 that he was informed by PW1 about this incident and also disclosed the name of one of the accused who killed the deceased. PW6 not only informed the police about this incident from his landline phone but also visited the spot of incident where dead body of the deceased was lying. PW1 again reached the spot of incident and disclosed the mode and manner of this incident to police and police witnesses have corroborated his presence. Though Ld. Counsel for the accused has argued that PW1 was not present during the incident and reached the spot only after this incident, yet his presence at the spot stands proved. It has been proved by the testimonies of PW1 and PW5 that the accused persons also tried to kill PW1 by firing on him. Even he has also tendered explanation for his absence at the spot for some time and this explanation is satisfactory. As such, the testimony PW1 is of a genuine witness and is reliable.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 91/129
89. Further, the mode and manner of this murder by accused Kuldeep Tomar, use of weapon of offence and the body part of the deceased where injury was caused, have duly proved the intention of the accused that he hit just to kill. Accused used a dangerous weapon which was capable to kill him. Accused was an Army official and was well versed to handle such weapons and was also aware as to what particular body part was capable to kill the deceased instantly and this fact has duly proved his knowledge of this murder. Intention and knowledge of the accused is also clear by the facts that he shot on the head of the deceased from a close point range and the death was imminent. As such, intention and knowledge of the accused was only to cause the death of Krishan Kumar.
90. Not only this, this murder of Krishan Kumar was also result of pre- determination of minds of all the accused under a criminal conspiracy which has also proved. Accused persons used a license pistol/ weapon, chased him to the spot of incident and killed him in broad day light which has also proved their fearlessness of law. As such, all facts have proved that accused just wanted to and were desperate to kill him. Accused Kuldeep availed leaves from his office for this purpose and rejoined his duty after committing this murder which has proved the preparedness of accused to execute this plan and also their pre-determination. As such, all the ingredients of section 300 stand proved and this case is not falling under any exception of Section 300 IPC, accordingly it stands proved that all the accused hatched a criminal conspiracy to commit the murder of the deceased and ultimately killed him and they are liable under section 302 r/w 120B IPC.
91. So far as the cause of death is concerned, it has already been discussed and rather has proved that the cause of death of deceased was unnatural and was shocked due to anti mortem head injury caused by projectile of fire arm. Injury No.2 was FIR No. 398/2006 State vs. Sanjay Tomar etc. 92/129 sufficient to cause death in ordinary course of nature and all the injuries are ante- mortem in nature and were of recent origin. In fact, both the injuries were caused by the weapon / pistol which was recovered at the instance of accused Kuldeep from the place where he was posted in Army, Doda, J&K. In fact, PM report has duly corroborated the cause of death which was caused by projectile fire arm. Medical evidence has duly corroborated the ocular evidence of the PWs that they witnessed accused Kuldeep Tomar while shooting the deceased from a close point range on his head and injury no. 2 was caused by such shooting, which was also possible by the weapon of offence/ pistol recovered at the instance of accused Kuldeep Tomar. As such, medical as well as expert evidence has also corroborated the ocular evidence to prove that the murder of deceased caused by accused Kuldeep Tomar under criminal conspiracy.
92. PW35 has proved the FSL report Ex.PW35/N and this report has duly corroborated that the pistol recovered at the instance of the accused was used during this crime and was recovered at the instance of accused Kuldeep Tomar vide seizure memo Ex.PW21/E. Empty fired cartridges seized from the spot were found having similar distinct marks of the weapon of offence which has proved that the fired cartridges belonged to the pistol used by the accused during the commission of this crime. Though the bullet marks EB1 and EB2 could not be connected to this pistol yet it was also not denied that it was not fired by the same firearm. By the testimonies of the PWs, it has been proved that the fired bullets recovered from the spot and bullet pellets recovered from the dead body of the deceased by the doctor conducted post mortem belonged to same weapon owned by the accused Kuldeep Tomar. As such, such bullets and weapon of offence have duly corroborated to each other as well as crime.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 93/129 Another FSL report of the serologist is Ex.PW35/O which has also proved that the articles recovered from the dead body were containing the same blood group of the deceased and similar human origin blood was also found on the Earth Control seized from the spot which has corroborated the place of incident. PW16 has ruled out any scope of tempering in exhibits till deposited with FSL and also handing over to SI Amit on 19/12/2014 for subsequent opinion. PW17 has also corroborated that he handed over the sealed parcels vide entry Ex.PW17/1 to Ct. Mangal to deposit with FSL on 31/1/2015, who also returned AD Ex.PW17/3 to him, whereas PW18 SI Amit Verma and PW10 have also corroborated the testimonies of others police officials. These testimonies have duly proved that the FSL report was also sought in time and there was no delay to raise the chances of tempering in the exhibits by anyone and medical as well as expert opinion was tempered proof. Even the copy of FIR was also dispatched promptly to the Ld. MM as well as senior police officials. As such, all the medical and scientific evidence have also failed to give any benefit of doubt to the accused persons.
93. FSL report is material corroborating evidence and has also proved the connection of the weapon of offence to the bullets leads recovered from the dead body of the deceased. Even it is also connected to the fired cartridges recovered from the spot of incident soon after this incident, due to this report has to be dealt with in more detail. Ld. counsel for the accused has argued that this report is not conclusive for the want of opinion regarding other bullet lead recovered from body of deceased and it is not safe to rely upon such half-baked opinion, due to this report has to be rejected in toto. However, before dealing this argument, it is necessary to go through FSL report of the ballistic expert and relevant portion of the report is as under: -
Result of Examination
1. The pistol .32" caliber marked exhibit 'F1' is designed to fire a standard .32"/7.65 mm cartridge. It is in working order in its present condition. Test fire conducted FIR No. 398/2006 State vs. Sanjay Tomar etc. 94/129 successfully.
2. The bullets marked exhibit 'EB1' & 'EB2' are correspond to the bullet of .
32"/7/65mm cartridge.
3. XXXXXX
4. XXXXXX
5. XXXXXX
6. The individual characteristics of firing pin marks and breech face marks present on evidence fired cartridge cases marked exhibits 'EC1' to 'EC3' and on the test fired cartridge cases marked as 'TC1' and 'TC2' were examined and compared under the comparison microscope model Leica DMC and were found identical. Hence exhibits 'EC1' to 'EC3' have been fired through the pistol .32" caliber marked exhibit 'F1' above.
7. The individual characteristic of rifling marks present on evidence fired bullet marked EB1 and on recovered fired bullets marked as TB1 & TB2 were examined and compared under the compared Microscope Model Leica DMC and were found identical. Hence exhibits 'EB1' has been fired through the pistol .32" caliber marked exhibit 'F1' above.
8. The individual characteristics of rifling marks present on evidence fired bullet marked exhibit 'EB2' were insufficient for comparison, whether it has been fired through the pistol .32" caliber marked exhibit 'F1' above or not.
9. The exhibits 'F1'/'A' to 'A10', 'EB1','EB2' and 'ECI' to 'EC3' are firearm / ammunition as defined in the arms Act, 1958
94. The above said FSL report has duly proved that the recovered weapon of offence was used during this crime. The bullets lodged in the brain portion of the deceased after piercing into his skull was deformed and it was natural and possible. Bullet hit against the hard object / skull bone and hitting of bullet against hard object may definitely deform it, whereas the other bullet lead fired from the same pistol recovered from the same place connected to the weapon of offence. As such, there is no scope of doubt that both bullet leads recovered from the brain area of the deceased were fired by the same weapon, which was recovered at the instance of accused Kuldeep. The FIR No. 398/2006 State vs. Sanjay Tomar etc. 95/129 plea of Ld. Defence Counsel has no substance that FSL report is half-baked or doubtful for the want of opinion regarding deformed bullet lead. As such, bullets leads connected to the pistol and fired by this pistol only and plea of accused stands rejected.
95. So far as other expert evidence is concerned, photographs Ex.PW2/1 to Ex.PW2/10 of which negatives are Ex.PW2/ 11 to Ex.PW2/20 have also proved that the incident took place at the spot of incident as deposed by the PWs. Even empty fired cartridges were also seized from the spot as reflected. PW7 has also corroborated his visit to the spot of incident and also his SOC report Ex.PW7/1 which has duly corroborated the photographs taken by the PW2 in his presence. In fact, SOC report has corroborated the testimonies of expert witnesses who visited the spot of incident and observed the similar objects lying on the spot as proved by the eye witnesses as well as police officials. PW25 SI Mukesh Jain, Draftsman has proved the scaled site plan Ex.PW25/A which has also corroborated the spot of incident and has reflected the position of the assailants, deceased and other witness at the spot of incident, whereas rough site plan prepared by the IO which is Ex.PW20/B has also corroborated by the material contents of the scaled site plan.
96. However, Ld. Defense Counsel for the accused has argued that the site plan prepared by the IO has failed to prove the actual position of the witnesses at the spot during this incident, due to the presence of witnesses is doubtful at the spot of incident as deposed by PW1 and PW5. But this plea has no substance. Rough site plan has its importance to guide the investigation, but it cannot decide the genuineness of the testimonies of the witnesses or their presence at the spot of incident. If the position of witnesses is not shown in the site plan by the IO, then it cannot be said that witnesses were not present at the spot or that they did not witness this incident. This rough site FIR No. 398/2006 State vs. Sanjay Tomar etc. 96/129 plan has been followed by a scaled site plan which has duly proved the spot of incident as well as the presence of witnesses and deceased at the spot etc. As such, medical evidence as well as entire expert evidence has proved the involvement of the accused persons to this offence.
97. Post Incident Conduct of accused and explanation under Section 313 Cr.P.C: The conduct of the accused is very well relevant not only at the time of crime but also after committing the offence. In the present case, accused Kuldeep Tomar committed the offence in a broad day light and thereafter fled away from the spot and reported to his battalion and also deposited the weapon of offence with official Koth. The licensee weapon was supposed to be kept in his house as his wife was retainer, but still he deposited it with his battalion and this conduct was just to escape the weapon from its seizure and also to avoid its detection. Similarly, other co-accused also fled away from the spot and the entire family remained absconded after this incident for long and it stands proved that they were supposed to be assailants. Even accused persons have also made their disclosure statements and also pointed out the place of incident vide sperate pointing out memos which are also relevant fact under Section 8 of Indian Evidence Act to prove their conduct as held by Hon'ble High Court of Delhi in Chandrakant Jha v. State, Criminal Appeal No-216/2015 dated 27/1/2016 and by Hon'ble Supreme Court in A.N. Venkantesh v. State of Karnataka ( 2005) 7 SCC 714.
98. Further, the explanation tendered by the accused persons during their statements u/s 313 are also relevant. It has been held by the Hon'ble Supreme Court of India in Jagroop Singh v. State of Punjab, V (2012) SLT 508 thereby relying upon State of Maharashatra v. Suresh (2000) 1 SCC 471 that when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he FIR No. 398/2006 State vs. Sanjay Tomar etc. 97/129 fails to offer appropriate explanation or gives false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circumstances put to him under section 313 of the code of criminal procedure.
99. In view of these judgments, it is clear that the explanation of the accused u/s 313 Cr.P.C. may not be deciding factor to convict them but those may be considered against the accused to consider their conduct and also to connect the link of the missing circumstances. In this case also, accused persons have not tendered any explanation to incriminating evidence/ circumstances against them and have not furnished any explanation to the incriminating evidence and it has provided an additional circumstance against all accused to prove their guilt and shall go against the innocence of the accused and shall be presumed that they have committed this offence.
100. In fact, all the oral, medical and expert evidence have duly proved that the accused persons killed the deceased under a criminal conspiracy and their involvement to this case stands proved beyond doubt and they are liable for the charge u/s 302 r/w 120B IPC against them.
101. Charges u/s 307 r/w 120B IPC: Next charge against the accused persons is pertaining to the conspiracy to commit attempt to murder of PW1 Sarjan Singh. It has been duly proved that accused Kuldeep Tomar tried to kill him when he tried to flee from the spot after the murder of Krishan Kumar, but he saved himself. PW1 and PW5 have duly proved this fact. Even the accused Sanjay Tomar also tried to catch him when he escaped from the spot and this fact has also been corroborated by PW5.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 98/129 Accused Kuldeep Tomar fired three bullets at the spot, out of which, two were shot in the head of the deceased Krishan Kumar, whereas third one fired on Sarjan Singh and this fact has been duly corroborated by SOC report prepared by PW7, who spotted three fired cartridges at the spot soon after this incident. Admittedly, deceased sustained two bullet injuries on his head and both bullet leads were recovered from his body and remaining recovered from the spot where was fired by Kuldeep Tomar on PW1 Sarjan Singh. FSL report has also corroborated that all three cartridges recovered from the spot were fired by the same pistol recovered at the instance of accused Kuldeep Tomar from his office in the presence of PW32. Even the motive of accused was also clear that he attempted to kill Sarjan Singh as he was pillar of support to the deceased to get his wife back and also become an eye witness to his killing as well.
102. The involvement of accused Pradeep Tomar and Sanjay Tomar in this incident also proved by the testimonies of PW1 and PW5. Pradeep Tomar was accompanied with Kuldeep Tomar and was driving his vehicle, by which, they chased the deceased as well as Sarjan Singh to kill him, whereas Sanjay Tomar was deputed at the corner of the street to apprehend them. However, material on record has failed to prove that other accused also conspired to eliminate him. In fact, the above said three accused persons who were present were duly involved. One fired shot, other was driving the motorcycle and third one was deputed at the corner of the street to catch him and also attempted to apprehend him as well. As such, they were actively involved in second incident too.
103. However, Ld. Counsel for the accused has argued that PW1 did not sustain any injuries during this incident due to accused cannot be held liable for this attempt to murder. It is further argued that even other accused namely Sanjay Tomar and Pradeep Tomar did not commit anything wrong due to they are also not liable in any manner FIR No. 398/2006 State vs. Sanjay Tomar etc. 99/129 and are liable to be acquitted. But, before proceedings further to adjudicate this argument, it is necessary to go through the substantive law u/s 307 IPC which is as under:-
Section 307-Attempt to murder.- whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.-[when any person offending under this section is under sentence of [imprisonment for life], if hurt is caused, be punished with death] Illustrations-
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensured. A would be guilty of murder. A is liable to punishment under this section.
(b) xxxxxxx
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. he has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of [ the first paragraph of] this section.
(d) xxxxxxx
104. After going through the above said definition, it is clear that intention or knowledge of the accused to commit this offence is relevant, irrespective of any injury to victim. This section came for interpretation in a case titled (1988) 4 SCC 551 titled Hari Singh Vs. Sukhbir Singh and Ors. and observations of the Hon'ble Apex Court is as under:
"Under Section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge FIR No. 398/2006 State vs. Sanjay Tomar etc. 100/129 of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blows, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. In this case, two parties in the course of a fight inflicted on each other injuries both serious and minor. The accused though armed with ballam never used the sharp edge of it. They used only the blunt side of it despite they being attacked by the other side. They suffered injuries but were not provoked or tempted to use the cutting edge of the weapon. It is very very significant. It seems to us that they had no intention to commit murder. They had no motive either. The fight as the High Court has observed, might have a sudden flare up. Where the fight is accidental owing to a sudden quarrel, the conviction under Section 307 IPC is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under Section 307 IPC".
105. It is further held in Parsuram Pandey & Ors. Vs. State of Bihar, (2004) 13 SCC 189 that to constitute an offence under Section 307 two ingredients of the offence must be present:
(a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is necessary ingredient of Section 307, there can be no offence "of attempt to murder". Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 101/129
106. It has been further held in Bappa Allas Bapu Vs. State of Maharashtra & Another, (2004) 6 SCC 485 that;
it is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
In view of the above-said case law laid down by the Hon'ble Supreme Court of India, it stands proved that intention or knowledge of the accused is material to cause injury to victim, whereas actual injury is not material and if intention or knowledge of accused to commit murder is proved, that is sufficient to prove this offence.
107. In this case, accused Kuldeep Tomar had already killed the deceased Krishan Kumar and thereafter, he also fired one bullet on PW1 Sarjan Singh, but he escaped, whereas his other brother Sanjay Tomar tried to catch him. The intention of the accused may be gathered from the surrounded circumstances and the intention of the accused to commit the murder of Sarjan Singh is clear by the fact that accused used a dangerous weapon to make this attempt to kill him. They had already killed Krishan Kumar in a brutal manner and after his murder, PW1 became the main eye witness to this incident and his survival was detrimental to their interest. PW1 was also the supporter of deceased and had been regularly helping and supporting him in all his litigations to get his wife back which were being filed after the forced second marriage FIR No. 398/2006 State vs. Sanjay Tomar etc. 102/129 of Laxmi Tomar, which were the main cause of concern to accused. They forcibly got solemnized the second marriage of Laxmi Tomar with PW34 and any success of such litigation was bound to disturb their all plans to get rid of deceased and grievance against PW1 was obvious. After killing the deceased, accused got opportunity to eliminate him also and they availed it and such intention of accused to kill PW1 stands proved.
108. Again, accused Kuldeep Tomar used a dangerous weapon to kill the deceased and also used the similar weapon to make attempt on Sarjan Singh which has made his knowledge clear about the consequences of his act. The testimony of PW33 SI Pramod Kumar has duly proved that there was a distance of about 10 Ft. between the place of incident and the spot wherefrom third fired cartridge was recovered, as shown in photographs Ex.PW2/9 & Ex.PW2/10, which has proved that Kuldeep Tomar also chased Sarjan Singh to some distance to fire on him and this fact has duly proved that he attempted to kill him. As such, testimonies of PWs as well as other material available on record has proved that the accused persons tried to kill PW1. No doubt accused Pradeep Tomar was only driving the vehicle/ motorcycle at the time of this incident, but he was with co-accused since beginning and was part of criminal conspiracy to kill the deceased. Their intention was clear to eliminate everyone who came into their way and this attempt to murder on PW1 was also part of the same series. Accused Sanjay Tomar was also part of it, as he changed his location during the incident and also tried to apprehend Sarjan Singh at the corner of the street. This act of the accused has proved that his intention was also common with other co-accused to kill Sarjan Singh.
109. Conspiracy is hatched in secrecy and usually is to be proved by circumstances before, during and after occurrence of the incident, but post occurrence circumstances FIR No. 398/2006 State vs. Sanjay Tomar etc. 103/129 must be agreed or connected to the pre-occurrence circumstances to bring them within the preview of conspiracy. In all cases of conspiracy, pre-determination of mind to do an illegal act or legal act with illegal manner has to be proved, but such meeting of minds of rest of the accused namely Neeraj, Mithlesh and Ram Bharose is not proved as they were not present during this subsequent incident.
110. Now the issue arises, as to whether the executants of a criminal conspiracy commits any other act subsequent to execution of conspiracy may be convicted with the help of Section 34 of IPC in lieu of Section 120B IPC or not? No doubt both the sections are part of joint liability but their criteria are different. Even their ingredients are also different. Conspiracy is hatched in advance, but common intention may be formed on the spot of incident and instantly too. Even another principle of joint liability u/s 149 IPC is also different, but confined to the number of participants. Similar proposition has laid down in case titled Gopi Nath v. State of U.P. (2001) 6 SCC 620 as under:
"8. ... Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action--be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or prearranged plan or one manifested or developed on the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
FIR No. 398/2006 State vs. Sanjay Tomar etc. 104/129
111. In view of the above said law, it is clear that the common intention may be formed even during the commission of the offence and may be proved by the circumstances also. Present case is an example of the such common intention which was either formed while chasing the victim from the court or on the way or after committing the murder of Krishan Kumar. However, circumstances have proved that they acted in pre-mediated manner, as accused Kuldeep Tomar instantly opened fire aiming to PW1 soon after murder of Krishan Kumar, whereas Pradeep Tomar stayed at the spot during the period of incident and facilitated Kuldeep to escape from spot and Sanjay Tomar tried to apprehend Sarjan Singh and specific roles were performed by all of them. As such, all of them committed this offence in furtherance of their common intention.
112. Section 34 of IPC is relevant to determine the common intention of all the assailants who committed an offence by their act or by a series of acts as defined by Section 33 of IPC. As such, both the sections 33 & 34 IPC are interrelated to ascertain the act or series of acts of all accused who formed a common intention to commit an offence. Both the sections are as under:
Section 33. "Act", "Omission".--The word "act" denotes as well a series of acts as a single act: the word "omission" denotes as well a series of omissions as a single omission.
Section-34. Acts done by several persons in furtherance of common intention. --When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
In view of the joint reading of both sections, it stands proved that any criminal act done by several persons to achieve a common target with common consent made all FIR No. 398/2006 State vs. Sanjay Tomar etc. 105/129 of them liable. However, in this case, no charge u/s 34 IPC has been framed against accused persons and rather a charge u/s 307 r/w 120B IPC has been framed. Now issue arises as to whether accused may be convicted with the help of section 34 IPC in lieu of section 120B IPC. Admittedly, section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability and similar proposition has laid down by case titled Virendra Singh v. State of M.P. (2010) 8 SCC 407, whereas section 120B IPC is a distinct offence and is on higher pedestal and conviction with the help of section 34 IPC may be definitely passed in lieu of section 120B IPC.
113. The proposition regarding section 149 IPC viz a viz 34 IPC has been dealt with in Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 and the observation of the court is material as under:
45. There is no bar in law on conviction of the accused with the aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and no apparent injustice or prejudice is shown to have been caused by application of Section 34 IPC in place of Section 149 IPC. The absence of a charge under one or the other or the various heads of criminal liability for the offence cannot be said to be by itself prejudicial to the accused, and before a conviction for the substantive offence without a charge can be set aside, prejudice will have to be made out. Such a legal position is bound to be held good in view of the provisions of Sections 215, 216, 218, 221 and 464 of the Code of Criminal Procedure, 1973.
In view of the above said case law, it stands proved that the accused namely Kuldeep Tomar, Sanjay Tomar and Pradeep Tomar acted in furtherance their common intention to make an attempt to kill Sarjan Singh and all of them may be convicted u/s 307 /34 IPC in lieu of section 307 r/w 120B IPC. However, other accused namely Neeraj, Ram Bharose and Mithlesh are not liable for this offence.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 106/129
114. Motive: So far as the motive of accused persons to commit this offence is concerned, though proving of motive is not material in a case based upon the direct testimony of an eye witnesses, as in the present case where PW1 and PW5 are eye witnesses, yet PW1 and PW6 have proved this motive of the accused to commit this offence. The testimonies of PW1 and PW6 are unrebutted qua the facts that the deceased got married with Laxmi Tomar against the wishes of accused and they were aggrieved by this marriage. Accused put constant pressure upon deceased to put off this marriage, but he did not bow down and had been filing repeated cases to get his wife back which irked the accused persons who apprehended threat to their reputation and prompted them to kill the deceased in the name of family reputation and honour. A petition under section 9 of HMA filed by deceased scared accused and prompted to eliminate him in a broad day light.
115. Besides the above said motive, another connected motive to kill the deceased was his lower caste. He solemnized an inter-caste marriage with a girl belonged to higher caste (Laxmi Tomar) and accused did not accept it. As soon as accused came to know about this marriage, they became desperate to kill him. It is not disputed that caste system has deep roots in our society and has immense potential to eliminate anyone in the name of honor of family or society. This family honour and social ego was the main reason of this murder and this motive was enough to kill the deceased and prosecution has established this motive.
116. Charge under Section 3 (2) (v) of SC/ST (POA) Act, 1989 r/w 120B IPC- Another Charge against the accused persons is under section 3 (2)(v) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 r/w section 120B of IPC. Before adjudicating this charge, it is necessary to go through the legal proposition under this provision. Accused persons in this case have been charged FIR No. 398/2006 State vs. Sanjay Tomar etc. 107/129 under Section 3 (2)(v) of SC/ST (POA) Act, 1989 because they committed the murder of the deceased or conspired to commit the murder who belonged to SC Community. Section 3 (2) (v) of SC/ST (POA) Act, 1989 is as under:
3.(2)Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,
--
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
In fact, this section has been designed to punish the aggressor/s, who commits an offence which prescribing a punishment of 10 years or more, but it is necessary that against a member of SC/ST community just because the victim belongs to SC/ST community. As such, it is sole ground to punish an accused charged with this offfence.
117. This Section 3 (2) (v) came into interpretation before the Hon'ble Apex Court in case titeld Dinesh v. State of Rajasthan, (2006) 3 SCC 771 and it was observed as under:
14. At this juncture it is necessary to take note of Section 3 of the Atrocities Act. As the preamble to the Act provides, the Act has been enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes. The expression "atrocities" is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3.
15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then FIR No. 398/2006 State vs. Sanjay Tomar etc. 108/129 by operation of law, the sentence would have been imprisonment for life and fine.
118. Further, in Masumsha Hasanasha Musalman v. State of Maharashtra, (2000) 3 SCC 557 held as under:
9. Section 3(2)(v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Penal Code, 1860 punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Penal Code, 1860 is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside.
119. In a latest judgment titled Patan Jamal Vali v. State of AP, 2021 SCC Online SC 343, the Hon'ble Supreme Court has held as under:
56. Under Section 3(2)(v), an enhanced punishment of imprisonment for life with fine is provided where
(i) The offence is committed by a person who is not a member of a Scheduled Caste or Scheduled Tribe;
(ii) The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or FIR No. 398/2006 State vs. Sanjay Tomar etc. 109/129 more; and
(iii) The offence is committed "on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe" or such property belongs to such a person.
57. The key words are "on the ground that such person is a member of a SC or ST". The expression "on the ground" means "for the reason" or "on the basis of". The above provision (as it stood at the material time prior to its amendment, which will be noticed later) is an example of a statute recognizing only a single axis model of oppression. As we have discussed above, such single axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem. Larrisa Behrendt, an aboriginal legal scholar from Australia, has poignantly stated the difficulty experienced by women facing sexual assault, who are marginalised on different counts, to identify the source of their oppression:
"When an Aboriginal woman is the victim of a sexual assault, how, as a black woman, does she know whether it is because she is hated as a woman and is perceived as inferior or if she is hated because she is Aboriginal, considered inferior and promiscuous by nature?"
58. Being cognizant of the limitation of Section3(2)(v) - as it stood earlier - in dealing with matters of intersectionality, we are however bound to apply the standard that has been laid down in the law. The expression "on the ground" was considered in a two-judge Bench judgment of this Court in Dinesh Alias Buddha v. State of Rajasthan, where the Court speaking through Justice Arijit Pasayat held:
"15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person FIR No. 398/2006 State vs. Sanjay Tomar etc. 110/129 is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste."
59. The Court held that in the absence of evidence to that effect, the offence under Section 3(2)(v) would not stand established. This principle was subsequently followed in a two judge Bench judgment of this Court in Ramdas v. State of Maharashtra where it was held that merely because a woman belongs to the SC & ST community, the provisions of the SC & ST Act would not be attracted in a case of sexual assault. This Court observed that there was no evidence to prove the commission of offence under Section 3(2)(v) of the SC & ST Act.
60. The contours of the terms "on the ground of" have been explicated by this Court in the following cases. In Ashrafi v. State of Uttar Pradesh, a two judge Bench of this Court held that conviction under Section 3(2)(v) of the SC & ST Act cannot be sustained because the prosecution could not prove that the rape was committed only on the ground that the woman belonged to the SC & ST community. This Court speaking through Justice R Banumathi held:
"9. The evidence and materials on record do not show that the Appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can be pressed into service only if it is proved that the rape has been committed on the ground that PW-3 Phoola Devi belonged to Scheduled Caste community. In the absence of evidence proving intention of the Appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the Appellant Under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained." (emphasis added)
61. In another judgment of this Court in Khuman Singh v. State of MP, Justice R Banumathi speaking for this Court held:
FIR No. 398/2006 State vs. Sanjay Tomar etc. 111/129 "As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar"-Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."
'(emphasis supplied)
62. In the above two extracts, this Court has interpreted Section 3(2)(v) to mean that the offence should have been committed "only on the ground that the victim was a member of the Scheduled Caste." The correctness of this exposition. Is debatable. The statutory provision does not utilize the expression "only on the ground". Reading the expression "only" would be to add a restriction which is not found in the statute. The statute undoubtedly uses the words "on the ground' but the juxtaposition of "the" before "ground" does not invariably mean that the offence ought to have been committed only on that ground. To read the provision in that manner will dilute a statutory provision which is meant to safeguard the Scheduled Castes and Scheduled Tribes against acts of violence which pose a threat to their dignity. As we have emphasized before in the judgment, an intersectional lens enables us to view oppression as a sum of disadvantage resulting from multiple marginalized identities. To deny the protection of Section 3 (2) (v) on the premise that the crime was not committed against an SC & ST person solely on the ground of their caste identity is to deny how social inequalities function in a cumulative fashion. It is to render the experiences of the most marginalized invisible. It is to grant impunity to perpetrators who on account of their privileged social status feel entitled to commit atrocities against socially and economically vulnerable communities. This is not to say that there is no requirement to establish a causal link between the harm suffered and the ground, but it is to recognize FIR No. 398/2006 State vs. Sanjay Tomar etc. 112/129 that how a person was treated or impacted was a result of interaction of multiple grounds or identities. A true reading of Section 3(2)(v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence. In the view which we ultimately take, a reference of these decisions to a larger bench in this case is unnecessary. We keep that open and the debate alive for a later date and case.
65. The issue as to whether the offence was committed against a person on the ground that such person is a member of a SC or ST or such property belongs to such member is to be established by the prosecution on the basis of the evidence at the trial. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of offence - whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model.
66. It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words "on the ground of" under Section 3(2) (v) have been substituted with "knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere FIR No. 398/2006 State vs. Sanjay Tomar etc. 113/129 knowledge is sufficient to sustain a conviction. Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows:
"8. Presumption as to offences. - In a prosecution for an offence under this Chapter, if it is proved that
(a) the accused rendered [any financial assistance in relation to the offences committed by a person accused of], or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence;
(b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object.
[(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.]"
67. The Parliament Standing Committee Report on Atrocities Against Women and Children has observed that, "high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration" and recommends inclusion of provisions of SC & ST Act while registering cases of gendered violence against women from SC & ST communities53. However, as we have noted, one of the ways in which offences against SC & ST women fall through the cracks is due to the evidentiary burden that becomes almost impossible to meet in cases of intersectional oppression. This is especially the case when courts tend to FIR No. 398/2006 State vs. Sanjay Tomar etc. 114/129 read the requirement of "on the ground" under Section 3(2)(v) as "only on the ground of". The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these.
68. However, since Section 3(2) (v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside.
(i) A sentence of imprisonment for life should be imposed for the offence under Section 376(1); and
(ii) A sentence of imprisonment for life would have to be imposed for the offence under Section 3(2)(v) of the SC and ST Act.
120. Not only the Hon'ble Supreme court but also the Hon'ble High Court of Delhi has also dealt with this section and has held Rameez @ Ramish Ahmed v. The State of NCT of Delhi, 2018 SCC Online Del. 8584 as under:
21.We do agree with the appellant's contention that conviction with the aid of Section 3 (2)(v) of the SC/ST Act cannot be sustained. It is true that the prosecutrix belonged to SC community. No credible evidence has, however, come on record that the sexual assault upon the prosecutrix was due to the factum of her belonging to Scheduled Caste or Scheduled Tribe. Under Section 3 (2)(v) of the Act, it is sine-qua-non to establish that the victim is a person who belongs to Scheduled Caste or Scheduled Tribes and that the offence under Penal Code, 1860 was committed against her on the basis of such a person belonging to Scheduled Caste or Scheduled Tribe. In the FIR No. 398/2006 State vs. Sanjay Tomar etc. 115/129 absence of such ingredients, no conviction under Section 3 (2)(v) of the Act arises.
In view of the above said law, it stands proved that the prosecution is supposed to and rather duty bound to prove that the victim not only belonged to the schedule caste / tribe but also the offence was committed against him for this reason alone. Even this section was amended in the year 2016, but this case is prior to this amendment so this case has to be decided under pre-amended Act.
121. In the present case, prosecution has proved by the testimonies of PW1 and PW6 that deceased got married with Laxmi Tomar against the wishes of her family members and they were not accepting this marriage, as deceased belonged to a lower Schedule Caste-Jatav sub-caste. This fact has not been reverted by the accused persons in any manner and rather no particular cross examination has been conducted on this aspect. On the other hand, deceased also filed multiple complaints against the accused persons and this fact is vigilant by the contents of such complaints that deceased was being tortured because he had solemnized this marriage with the sister/daughter of the accused persons who belonged to a higher caste and they were opposing this marriage on account of difference of caste. Even deceased also filed a Writ Petition (Habeas Corpus) against accused persons, in which, this fact was mainly highlighted and the court proceedings have also supported that Laxmi Tomar was under pressure to stay with them. Even during the examination of the PW6, he has also deposed that his son was killed because he dared to get married with Laxmi Tomar despite belonging to a lower caste. IO has also deposed the similar fact. As such, by the testimonies of the PWs, it stands proved that the deceased was killed because he refused to bow down before the accused to end his marriage despite belonging to a lower caste. The caste of the deceased has already proved by his caste certificate and also by the testimony of official witness appeared to prove the caste certificate. As such, it stands proved that FIR No. 398/2006 State vs. Sanjay Tomar etc. 116/129 the deceased was murdered by the accused persons just being belonged to SC community which was the main reason of this offence.
122. This offence was committed on 14/11/2006 which was much prior to the last amendment in Section 3 of the SC/ST (POA) Act, 1989 which was in the year 2016. As per pre-amended section, prosecution was supposed to prove that the murder of Krishan Kumar was committed "only on the ground that he belonged to Scheduled Caste Community" which has been duly proved by the prosecution. In fact, prior knowledge of the accused regarding the caste of the victim is material to commit this offence which has been duly proved by the PWs. This prior knowledge of accused persons regarding the caste of deceased is well established by the direct evidence of the prosecution witnesses as well as circumstances.
123. Testimonies of PW1 Sarjan Singh and PW6 Chander Bhan have proved that all the accused knew the caste of the deceased and they did not accept this marriage and committed the murder of Krishan Kumar. Even the circumstances have also proved that all the accused persons were well aware about the caste of the deceased and did not accept this marriage on account of his caste only and hatched this conspiracy to eliminate him and ultimately eliminated.
124. The third set of evidence regarding the knowledge of caste of the deceased is documentary evidence in the form of Writ Petition filed by the deceased. Even the order dated 03/01/2006 in the abovesaid petition, which is Ex.PW35/G, has also proved that accused persons were posing threats to the deceased and this fact was also brought into the notice of Hon'ble High Court and police protection was granted to deceased to escort to his home. Further a complaint made by Laxmi Tomar to the police and has also categorically proved that she was apprehending of her murder as FIR No. 398/2006 State vs. Sanjay Tomar etc. 117/129 well as deceased on account of this inter-caste marriage. As such, all such evidence and circumstances have proved that the deceased was murdered only because he was a member of schedule caste community. Accused could not digest this insult and eliminated him.
125. The Hon'ble Supreme Court has already held in Patan Jamal Vali (supra) case that it is not necessary that such facts related to caste should be deposed in evidence by witnesses and material available on record to prove this fact is sufficient, which is very well present in this case. The ingredients of Section 3 (2) (v) of SC/ST (POA) Act, 1989 stand proved. Even the disclosure statements of all accused have also be corroborated this fact which may be used to corroborate against each other in view of Section 30 of Evidence Act being their confession. Even the evidence related to this fact is unrebutted during the statements of accused u/s 313 CrPC and they have not tendered any explanation to this fact except stating that it is incorrect, but in what manner, nothing is explained.
126. An elaborate discussion of circumstances to prove conspiracy to commit the murder of deceased by accused persons has already been done and all the accused persons were part of this criminal conspiracy. The abovesaid discussion has also proved that the murder of the deceased was only because he belonged to a lower caste and got married to Laxmi Tomar who belonged to higher caste and not otherwise. An application u/s 156(3) CrPC filed by the deceased has elaboration of this effect, which is again not denied by the accused persons and amounts to their admission of this fact. It has also proved their motive to kill him. A series of harassments to deceased as well as family members has fortified this aspect of caste angle to eliminate him. The offence committed by all the accused persons u/s 302 r/w 120B IPC was carrying a punishment more than 10 years, due to accused are liable for this offence u/s 3(2)(v) FIR No. 398/2006 State vs. Sanjay Tomar etc. 118/129 of SC/ST (POA) Act, 1989 and this offence stands proved against all of them.
127. Charge under section 27 of Arms Act: The next offence charged against accused Kuldeep Tomar is section 27 of Arms Act, 1959. To determine the involvement of the accused to this offence, it is necessary to go through legal provisions to this effect. Section 27 of Arms Act is connected to section 5/7 of the Arms Act and both the sections have to be read together to reach the conclusion as to whether accused has committed this offence or not. Before reaching to section 27, sections 5 and 7 have to be seen as under:
Section-5- Licence for manufacture, sale, etc., of arms and ammunition.--
(1) No person shall--
(a) [use, manufacture], sell, transfer, convert, repair, test or prove, or
(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearms or any other arms of such class or description as may be prescribed or any ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
(2) Notwithstanding anything contained in sub-section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act, or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition: Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be sold or transferred by any person unless--
(a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and
(b) a period of not less than forty-five days has expired after the giving of such information.] FIR No. 398/2006 State vs. Sanjay Tomar etc. 119/129
7. Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition.--No person shall--
(a) acquire, have in his possession or carry; or
(b) [use, manufacture], sell, transfer, convert, repair, test or prove; or
(c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf.
27. Punishment for using arms, etc.--
(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.] In view of the above said sections, it stands proved that to convict an accused u/s 27 of Arms Act, the criteria of section 5 and 7 of Arms Act have to be satisfied. In fact, violation of section 5/7 of Arms Act is punishable u/s 27 and ingredients of both sections must be satisfied.
128. This section 27 of Arms Act came into interpretation before the Hon'ble Supreme Court in case titled Deomuni Sharma v. State of Jharkhand, (2009) 16 SCC 80 and it is held as under:
25. There is no discussion regarding Section 27 of the Arms Act either in the FIR No. 398/2006 State vs. Sanjay Tomar etc. 120/129 judgment of the trial court or the High Court. No evidence is discussed as to how the user of the firearm can come within the mischief of Section 5 of the Arms Act. No such material was produced before us nor were we addressed on the issue by the learned counsel for the prosecution. Under such circumstances, we are not in a position to endorse the breach of Section 5 of the Arms Act. Again, it is not the case of the prosecution that this appellant did not have the licence for the rifle that he is alleged to have used by firing in the air.
26. For inviting conviction under Section 27 of the Arms Act, it has to be proved that the firearm has been used in contravention of Section 5 or Section 7 of the Arms Act. Since it was a licensed gun, there was no question of Section 7 coming in. Insofar as Section 5 is concerned, we do not think that an act on the part of the accused in firing in the air to scare the aggressors would come within the mischief of Section 5(1) of the Arms Act. Therefore, the appellant is liable to be acquitted even of the offence under Section 27 of the Arms Act.
129. In view of the above said case law, it stands proved that the use or misuse of licensee weapon is not punishable u/s 27 of Arms Act. Admittedly, in this case, weapon of the offence recovered at the instance of accused Kuldeep Tomar from his official place, in the presence of PW32 Jai Pal Singh, was licensee and license Ex.PW31/A has been proved. In fact, there was no violation of section 5/7 of Arms Act to prove the involvement of the accused to this offence, due to offence u/s 27 of Arms Act is not made out against him.
130. However, it is not disputed that a licensee weapon cannot be used for killing of an innocent person and purpose of issuance of such licensee weapon cannot be so. Though the terms of the license have not been proved by the prosecution, yet the use of weapon for unlawful purpose for killing is definitely misuse of the terms of the license. Section 30 of Arms Act deals with the situation where there is a violation of FIR No. 398/2006 State vs. Sanjay Tomar etc. 121/129 the terms of the license but no punishment has prescribed. Section 30 is as under:
30. Punishment for contravention of licence or rule.--Whoever contravenes any condition of a licence or any provision of this Act or any rule made thereunder, for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to [six months], or with fine which may extend to [two thousand] rupees, or with both.
131. In view of this provision, it stands proved that such cases where violation of license is found, but no specific punishment has provided for such misuse, violator may be punished under this provision. However, issue arises as to whether accused may be punished for this offence without framing a formal charge or not? Admittedly, accused Kuldeep Tomar has been charged under section 27 of Arms Act which prescribes a minimum punishment of 3 years which is extendable upto 7 years, whereas Section 30 prescribes a punishment of 6 months or fine of Rs. 2 thousand only. In fact, subsequent offence is definitely a lesser offence than previous one and may be considered for an alternative section. Earlier section 27 of Arms Act had covered such cases where holder of a license of weapon misused it, but after the amendment in section 27 in the year 1988, accused can definitely escape himself from the mischief of section 27 despite misusing the terms of license. Such cases of illegal use of licensee weapons are not covered now under any class of offence prescribed under Arms Act. Section 30 is the only residuary section which may make the accused liable for misusing of his licensee weapon to kill an innocent and accused Kuldeep Tomar is also covered by this section.
132. It is not disputed that an accused may be convicted for an alternative offence, if he is not covered under the provision for which he has been charged, provided his conviction must not result into miscarriage/ failure of justice. The proposition is well defined by Section 222 of Cr.PC which has laid down that an accused may be FIR No. 398/2006 State vs. Sanjay Tomar etc. 122/129 convicted for a lesser offence without framing of a formal charge. Section 222 Cr.P.C is as under:
Section - 222. When offence proved included in offence charged.
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. Illustrations
(a) A is charged, under section 407 of the Indian Penal Code (45 of 1860), with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said section 406.
(b) A is charged, under section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code.
133. Perusal of the above said section would show that Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several FIR No. 398/2006 State vs. Sanjay Tomar etc. 123/129 particulars". The section permits the court to convict the accused "of the minor offence, though he was not charged with it". Sub-section (2) deals with a similar, but slightly different situation where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."
134. Now the issue arises as to what is the minor offence for which accused may be convicted without framing of a formal charge. The term 'minor offence' came into interpretation before the Hon'ble Supreme Court of India in case tiled Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 and it is held that;
16. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence.
135. However, this conviction under minor offence without formal charge is with a caveat that this conviction should not result into 'failure of justice' and what is that 'failure of justice' has been further defined in Para 23 & 24 of the above said judgment as under:
23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments FIR No. 398/2006 State vs. Sanjay Tomar etc. 124/129 Ltd. v. Deptt. of the Environment [(1977) 1 All ER 813 : 1978 AC 359 : (1977) 2 WLR 450 (HL)] ). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.
24. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-
explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.
As such, with the help of the above said section, accused can be convicted for lesser offence or cognate offences. Now the issue arises as to what are those conditions which have to be fulfilled to convict an accused for a lesser offence and what may be considered such lesser offence.
136. The ingredients of Section 222(2) have been interpreted by the Hon'ble High Court of Delhi in case titled Tej Singh v. State, (2014) 6 HCC (Del) 436 : 2014 SCC OnLine Del 785 and the observation of the Hon'ble Court is as under:
8. It is not permissible in law to punish the accused for a less grave offence if the ingredients of the less grave offence are completely different and distinct from the grave offence with which he has been charged. In other words, the accused should have been charged with a grave offence which would take within its ambit and scope the ingredients of a less grave offence. Usually, the offence of grave nature includes in itself the essentials of a lesser, but cognate offence. In the normal course of events, the question of grave or less grave offence would arise in relation to the offences falling in the same clause. For instance, there are classes of offences like offences against human body, offences against property and offences relating to cheating, misappropriation, FIR No. 398/2006 State vs. Sanjay Tomar etc. 125/129 forgery, etc. If a person has been charged for instance under Section 302 IPC, he can be convicted for offence punishable under Section 304 of the Penal Code since the two offences are cognate offences and the ingredients of the offence under Section 304 IPC are included in the offence under Section 302 thereof. Similarly, if a person has been charged say under Section 325 IPC for causing grievous hurt to a person he can be convicted under Section 323 thereof for causing simple hurt. But where the grave offence and the less grave offence fall in different classes, it would be difficult to say that a person charged with a grave offence falling in one class can be convicted for a less grave offence which falls in some other class.
The offences punishable under Sections 299 to 377 of the Code fall in Chapter XVI of IPC, under the class "Of Offences Affecting the Human Body"
and there is further sub-classification of the offences affecting the human body. On the other hand, the offence punishable under Section 420 IPC falls in Chapter XVII of the Code under the class "Of Offences Against Property".
Therefore, an offence against property such as cheating cannot be considered to be less grave offence qua the offence punishable under Section 302 of the Penal Code which falls in an altogether different class, for the purpose of conviction with the aid of Section 222 of the Code of Criminal Procedure.
9. The expression "cognate offences" indicate similarity and common essential features between the offences and they are primarily based on difference of degree. The lesser offence is stated to be related to a greater offence when it shares several of the elements of the greater offence and is of the same class or category. Therefore, where the offences are cognate offences with commonality in their features and evidence is produced which would justify conviction for a cognate but less grave offence, the court would be entitled to punish the accused for the less grave offence since no prejudice is suffered by him on account of such conviction.
In fact, in view of the above said law, it stands proved that the accused can be convicted for the lesser offence u/s 30 of Arms Act without framing of a formal charge in lieu of similar category of offence related to Arms, if the main charge is not proved.
137. In the present case, it has been duly proved that the accused Kuldeep Tomar used his license pistol to kill the deceased and FSL report has duly proved that this weapon was used to kill Krishan Kumar. The ocular evidence of PW1 Sarjan Kumar has also proved this fact to prove the mode and manner of killing of the deceased by FIR No. 398/2006 State vs. Sanjay Tomar etc. 126/129 the accused. PW5 has also supported it. The bullet leads recovered from the dead body have also matched with the distinct marks of this weapon to prove the use of this weapon during this incident. Police officials and independent witnesses have proved the seizure of the weapon and its license which was in the name of accused itself and he was the license holder. He was under obligation to stop the misuse of his weapon but he himself used it for illegal purpose and is definitely liable u/s 30 of Arms Act.
138. Accused Kuldeep Tomar not only used this weapon to kill deceased Krishan Kumar but also tried to kill witness / PW1 Sarjan Singh and this fact has already been proved by PW1 and duly corroborated by PW5 Ranjeet Kumar. It is again misuse of this weapon to commit an offence u/s 307/34 IPC, which again made him liable for this offence. In fact, prosecution has proved this offence against the accused beyond doubt. As such, accused Kuldeep Tomar is guilty u/s 30 in lieu of section 27 of Arms Act.
139. Keeping in view the facts and circumstances of the case, I am of the considered opinion that the prosecution has successfully proved the offences against the accused persons and all the accused persons are hereby convicted as under:
i. Kuldeep Tomar is hereby convicted for the offence u/s 120B IPC for hatching a criminal Conspiracy, u/s 302 r/w 120B IPC for murder of Krishan Kumar under a criminal conspiracy, u/s 307/34 IPC for attempting to commit murder of Sarjan Singh, u/s 3(2)(v) of SC/ST (POA) Act, 1989 r/w 120B IPC for committing the murder of Krishan Kumar who belonged to Scheduled Caste community and Section 30 of Arms Act, 1958.
ii. Sanjay Tomar is hereby convicted for the offence u/s 120B IPC for hatching criminal Conspiracy, u/s 302 r/w 120B IPC for murder of Krishan Kumar under a FIR No. 398/2006 State vs. Sanjay Tomar etc. 127/129 criminal conspiracy, u/s 307/34 IPC for attempting to commit murder of Sarjan Singh and u/s 3(2)(v) of SC/ST (POA) Act, 1989 r/w 120B for committing the murder of Krishan Kumar who belonged to Scheduled Caste community.
iii. Pradeep Tomar is hereby convicted for the offence u/s 120B IPC for hatching criminal Conspiracy, u/s 302 r/w 120B IPC for murder of Krishan Kumar under a criminal conspiracy, u/s 307/34 IPC for attempting to commit murder of Sarjan Singh, u/s 3(2)(v) of SC/ST (POA) Act, 1989 r/w 120B for committing the murder of Krishan Kumar who belonged to Scheduled Caste community.
iv. Ram Bharose is hereby convicted for the offence u/s 120B IPC for hatching criminal Conspiracy, u/s 302 r/w 120B IPC for murder of Krishan Kumar under a criminal conspiracy and u/s 3(2)(v) of SC/ST (POA) Act, 1989 r/w 120B for hatching the conspiracy to commit the murder of Krishan Kumar who belonged to Scheduled Caste community. However, he is acquitted u/s 307 r/w 120B IPC.
v. Mithlesh is hereby convicted for the offences u/s 120B IPC for hatching criminal Conspiracy, u/s 302 r/w 120B IPC for murder of Krishan Kumar under a criminal conspiracy and u/s 3(2)(v) of SC/ST (POA) Act, 1989 r/w 120B for hatching the conspiracy to commit the murder of Krishan Kumar who belonged to Scheduled Caste community. However, she is acquitted u/s 307 r/w 120B IPC vi. Neeraj is hereby convicted for the offences u/s 120B IPC for hatching criminal Conspiracy, u/s 302 r/w 120B IPC for murder of Krishan Kumar under a criminal conspiracy and u/s 3(2)(v) of SC/ST (POA) Act, 1989 r/w 120B IPC for hatching the conspiracy to commit the murder of Krishan Kumar who belonged to Scheduled Caste community. However, he is acquitted u/s 307 r/w 120B IPC.
All the above said accused persons convicted accordingly.
FIR No. 398/2006 State vs. Sanjay Tomar etc. 128/129
140. Bail Bonds of all accused cancelled. Surety discharged. All the accused persons are directed to be taken into custody.
Announced in open court (Devender Kumar)
today on 02.03.2022 Additional Sessions Judge-02, NE /
Special Judge, SC/ST (POA) Act (NE)
Karkardooma Courts, Delhi
FIR No. 398/2006 State vs. Sanjay Tomar etc. 129/129