Delhi District Court
Birju Singh @ Birju @ Biru Singh vs State on 10 September, 2015
THE COURT OF SH. NARESH KUMAR MALHOTRA, ADDITIONAL
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.A. No.29/2015.
ID No. 02401R0283762015
10.09.2015.
IN THE MATTER OF:
Birju Singh @ Birju @ Biru Singh,
S/o Sh. Sarvan Kumar,
resident of Village Chhatauni,
PS Paras Pur, P.O. Mohna,
District Gonda, U.P.
At present:
R/o H. No. 1201/B, Sita Ram Ka Makan,
Gali No. 13, Near MCD Primary School,
Prem Nagar, Patel Nagar, Delhi.
....... Appellant.
Versus.
STATE.
....... Respondent.
Date of Institution : 30.05.2015
Date of arguments : 01.09.2015
Date of Judgment : 10.09.2015.
JUDGEMENT
1. This is an appeal under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 against the judgment dated 29.04.2015 passed by Sh. Vishal Singh, Ld. Principal Magistrate, Delhi in FIR No. CA No. 29/15. Page No1/18 267/10, vide which the JCL Biru Singh is held involved in commission of offence u/s. 302/34 IPC and order dated 07.05.2015, vide which the JCL Beeru Singh is ordered to be kept at Special Home (Majnu Ka Tila) for one year from today subject to review. The Superintendent Special Home (Majnu Ka Tila) was directed to provide intensive counselling to the JCL and to file his individual care plan.
2. Aggrieved by the judgment dated 29.04.2015, the appellant has filed the present appeal on the ground that the Ld. Principal Magistrate erred both in law and fact by holding the JCL is involved in the commission of offence under Section 302/34 IPC. Ld. Principal Magistrate failed to explain how and on what basis the JCL shared a common intention with the adult associate. Ld. Principal Magistrate failed to appreciate the fact that the JCL cannot have alleged common intention with the adult associate as he was not present in the first tussle. Therefore, it cannot be said that JCL had motive or intention to murder the deceased. The JCL was resident of the ground floor of the house near the gali where occurrence took place. The JCL did not cause any injury to the deceased. The killing of the deceased was the individual act/motive of the adult accused. There is no direct participation of the JCL in alleged murder of the deceased. The ld. Principal Magistrate has failed to appreciate the contradictions in the statement of PW2 that JCL brought knife from his house for murdering the deceased but at the same time CA No. 29/15. Page No. 2/18 PW2 admits that he did not see JCL entering the house nor PW2 could answer what clothes the juvenile was wearing at the time of commission of offence. Ld. Principal Magistrate erred both in law and fact by relying on the statement of PW2 and not relying any other reports of investigation. Ld. Principal Magistrate erred in law by sending the Juvenile to the Special Home (Majnu Ka Tila) for one year in contravention of Section 15(3) of the Juvenile Justice (Care and Protection of Children) Act, 2000. The Act of sending the JCL to the special home as provided to the proviso to subsection (3) of Section 15 is permissible only when the board receives a report from the probation officer that JCL has not been of good behaviour during a period of supervision or that the fit institution is no longer able or willing to ensure the good behaviour and well being of the JCL. It is prayed that order dated 29.04.2015 passed by the Ld. Principal Magistrate, Juvenile Justice Board I where the juvenile was held guilty of murdering the victim Kade Deen for having common intention with adult associate and the appellant was ordered to be kept at Special Home (Majnu Ka Tila) for one year be set aside.
3. In brief the case of the prosecution is that on 28.11.2010 at about 5:00 PM, at Main Prem Nagar Road, Opposite H. No. 2101/B, Gali No. 14, Near MCD School, Prem Nagar, Delhi, JCL Biru Singh @ Birju in furtherance of his common intention with adult associate, murdered victim Kade Deen by intentionally stabbing him with knife.
CA No. 29/15. Page No3/18
The above mentioned case was registered on the statement of son of the deceased and he made statement to the police that at about 5:00 PM he was talking with Ravi at his house. In the meantime Manish @ Ganja came from behind and he gave a leg blow on his back. Manish @ Ganja had given leg blow to him without any reason and due to fear he went from there and on the way his father met him and he told this fact to his father. His father asked Manish @ Ganja as to why he had given beating to Akash. There was scuffle between father of the complainant and Manish @ Ganja. The complainant further stated that his father felt sorry to Manish and went to his work. In the meantime, Manish @ Ganja remained standing in the gali and father of the complainant intimated to the police by dialing 100 number with a apprehension that Manish @ Ganja again might not raise the quarrel. Due to this reason there was quarrel between Manish @ Ganja and father of the complainant and again scuffle started. The complainant tried to intervene. In the meantime, Biru, who is residing on the ground floor in the building where the complainant is residing and fast friend of Manish @ Ganja came and on the asking of Manish @ Ganja he brought a knife from his room and tried to give blow on the back of his father. The complainant tried to intervene and knife from the hands of JCL fell on the ground and thereafter, Manish @ Ganja on seeing the occasion took out the knife and gave 3/4 blows on the abdomen of the father of the complainant. It is also mentioned by the complainant that his father fell on the ground and he gave intimation to the CA No. 29/15. Page No. 4/18 police from PCO.
4. The investigation of the case was carried out and disclosure statement of the JCL was recorded. Manish @ Ganja could not be arrested. Perusal of the file reveals that charge u/s. 302/34 IPC was framed by ld. ASJ FTC (Central), Delhi on 30.05.2011 to which JCL pleaded not guilty and claimed trial. The appellant was declared juvenile by Ld. ASJFTC (Central), Delhi vide order dated 13.01.2012 and he was ordered to be produced before the concerned Juvenile Justice Board.
5. During the course of inquiry, total six witnesses were examined.
6. PW1 ASI Muneem Dutt has deposed that on 28.11.2010 , at about 5:15 PM, a PCR call regarding quarrel near H. No. 2103 was received and he proved DD No. 21A as Ex. PW1/A. This witness also deposed that on the same day at about 7:00 PM, he also received information from RML Hospital regarding death of deceased Kade Deen Singh and recorded DD No. 22A, Ex. PW1/B. This witness further deposed regarding receiving of rukka at 10:30 PM from Inspection Pawan Singh Rana for registration of FIR in the present case and proved copy of FIR vide Ex. PW1/C. He deposed that after endorsement, the FIR was sent to Inspector Pawan Singh Rana. CA No. 29/15. Page No5/18
7. PW2 Akash is the son of the deceased Kade Deen and eye witness to the incident. This witness deposed that on 28.11.2010, at about 5:30 PM, when he was talking with Ravi regarding his salary, adult offender namely Manish @ Ganja came from behind and kicked him without any reason due to which he started crying. He stated that his father came downstairs and asked him the reason for crying. He told him that Manish had hit him. He stated that when his father asked Manish the reason for kicking, hot arguments and scuffle started between them. He went upstairs to inform his mother and when he returned the fight had ended. This witness stated that Manish was standing at the corner of the gali and his father was going through the gali. This witness stated that his father came back and called at 100 number. This witness deposed that Manish had seen his father dialing at 100 number and they again started quarreling. This witness deposed that the JCL, who was friend of Manish and who used to live in the same building at ground floor was also standing there. This witness stated that on asking of Manish, JCL brought a knife from his house and stabbed his father from behind. He stated that knife fell down from the hands of JCL and Manish immediately picked up and stabbed his father on his trunk. He stated that local residents gathered at the spot and Manish and JCL fled from there. This witness deposed that victim was removed to hospital by local residents. Police recorded his statement Ex. PW2/A and he showed the spot and narrated the incident to the police. This witness correctly identified the JCL CA No. 29/15. Page No. 6/18 and also identified the clothes worn by deceased Kade Deen at the time of incident.
8. PW3 Dr. B.N. Mishra, Medical Officer, DDU Hospital has deposed that on 02.12.2010 he conducted the postmortem examination of deceased Kade Deen and postmortem report is proved as Ex. PW3/A. This witness opined the cause of death due to hemorrhagic shock caused by penetrating injuries to multiple vital organs (lung, live etc.) by sharp edged weapon like knife etc. This witness deposed that all the injuries were ante mortem in nature and of same duration. This witness also gave subsequent opinion regarding cut marks present on the clothes of deceased in connection with injuries observed on the body of deceased about consistency of the same and proved document Ex. PW3/B in this regard.
9. PW4 Raju Yadav has deposed that on 28.11.2010, at about 5:00 PM, on receipt of information from victim Kade Deen regarding quarrel near his house, he immediately rushed to the spot and saw that Manish @ Ganja and JCL Biru, who used to live at the ground floor in the same building in which Kade Deen lived, were quarreling with Kade Deen. This witness deposed that son and wife of Kade Deen were also present there. He stated that he pacified the dispute and came back to his friend Darshan Singh. This witness stated that Akash, son of Kade Deen came running there and told CA No. 29/15. Page No7/18 them that Manish @ Ganja and JCL Biru had stabbed his father with knife. This witness deposed that he and Darshan Singh rushed to the spot and saw that blood was oozing from the abdomen of Kade Deen. This witness deposed that police was called at the spot and Kade Deen was taken to RML Hospital, where he was declared dead by the doctors. He stated that he narrated entire incident to the police at the spot.
10. PW5 Jasbir Singh had deposed that he did not remember the date month and year of the incident, however, around three years ago in the evening time when he came back after urination, he saw one injured person lying near his shop at 2101/B, Gali No. 1314, Prem Nagar, Delhi. This witness deposed that son of injured was standing near him and was calling police at 100 number. This witness stated that he did not see who assaulted the injured.
11. PW6 IO Inspector Pawan Singh Rana deposed that on 28.11.2010, at about 5:00 PM, a PCR call was received vide DD No. 21A, Ex. PW6/A, regarding quarrel at Prem Nagar, Delhi and the same was marked to SI Ganesh Yadav, who along with one Constable reached to the spot and found injured Kade Deen Singh with stab injuries on his back and abdomen. This witness deposed about reaching the spot and shifting of victim at RML hospital by SI Ganesh, where the victim was declared as brought dead. This CA No. 29/15. Page No. 8/18 witness deposed that he photographed the spot and collected blood samples and earth control sample. This witness further deposed that site plan was prepared Ex. PW6/D and recorded statement of Master Akash in the presence of two public witnesses namely Darshan Singh and Raju Yadav. This witness deposed that JCL Biru Singh was arrested on 08.12.2010.
12. After closing of P.E, statement of JCL u/s. 281 Cr.P.C recorded and JCL pleaded false implication. He did not examine any witness in his defence.
13. I have heard the ld. Counsel for the appellant and the ld. Addl. PP for the State and perused the records very carefully. Counsel for the appellant had argued on the lines of grounds taken by the appellant in the appeal. It is contended by ld. Counsel for the appellant that appellant was only standing there. PW2 also stated that JCL was present in the gali and there was no prior motive to hit the deceased. PW2 could not tell the description of knife. There was no prior enimity between the JCL and the deceased. PW2 fail to tell the colour of clothes which JCL was wearing at the time of incident.
On the other hand, ld. Chief PP for the State has argued that there is no infirmity or illegality in the judgment dated 29.04.2015. The ld. Principle Magistrate has passed the judgment after taking into consideration all the facts and circumstances of the case and had rightly taken into CA No. 29/15. Page No9/18 consideration the statement of PW2. It is prayed that the appeal be dismissed.
14. Now, I am dealing with the contentions of ld. Counsel for the appellant one by one.
15. PW2 Akash is the son of the deceased deposed that on on 28.11.2010, at about 5:30 PM, he was taking with Ravi regarding salary outside building in which he was residing. Manish @ Ganja came from behind and kicked him without any reason. He started crying, his father was coming downstairs from the house and asked him the reason as to why he was crying. His father asked Manish why he had kicked him. Hot arguments developed between them and scuffling started. This witness deposed that he went up stairs to inform his mother and when returned there was end to fighting. Manish was standing at corner of gali and his father was going through the gali. However, his father returned and called at 100 number. His father returned to see if Manish was again assaulting him or not. Manish had seen his father calling at 100 number and fighting again started between them.
This witness in clear terms correctly identified the JCL. PW2 has also deposed that JCL is fast friend of Manish, who was also standing there. This witness deposed that JCL was also residing in the same building at ground floor. This witness in clear terms stated that Manish directed JCL to bring knife and assault his father and JCL immediately obeyed the CA No. 29/15. Page No. 10/18 command of Manish, brought a knife from his house and stabbed his father from behind. In the incident knife fell from the hands of the JCL, Manish immediately took up the same and attacked his father on his trunk. This witness deposed that his father was removed to hospital by local residents.
It is admitted fact that JCL was residing in the same building at ground floor. Thus, there is no dispute about the identity of JCL. PW2 in clear terms had deposed that Manish directed JCL to bring knife and to assault his father and JCL immediately obeyed the command of Manish, brought a knife from his house and stabbed his father from behind. Thus, on the command of Manish @ Ganja, JCL immediately obeyed the command and brought knife and hit on the back of father of the complainant. I am of the view that on the command of Manish @ Ganja, JCL immediately obeyed the command and brought knife from his room and stabbed the father of the complainant. I am of the view that there was common intention on the part of JCL along with Manish @ Ganja to commit murder of the deceased. Thus, this contention carries no force.
If, we peruse the postmortem report of the deceased, the deceased received as many as five injuries. The injuries are abrasion of size 1.0 cm x 1.2 cm present on the left knee, an incisedstab wound of size 3.4 cm x 1.2 cm x deep to chest cavity, an incised stab of size 3.5 cm x 1.3 cm x deep to abdominal cavity on right hypochondrial region, an incised stab wound of size 3.4 cm x 1.2 cm x deep to abdominal cavity present on the CA No. 29/15. Page No11/18 right lumber region, an incised stab wound of size 3.5cm x 1.3 cm x deep to abdominal cavity present on the mid left lateral lumber region. The ocular version of the PW2 is corroborated with the medical evidence. PW2 stated that Manish @ Ganja gave 3/4 blows on the abdomen of the deceased. Perusal of the postmortem report of the deceased shows that deceased received three injuries on his abdomen.
16. It is vehemently contended by ld. Counsel for the appellant/ JCL that juvenile was not present when Akash was firstly hit by Manish @ Ganja. It is not case of the prosecution that when the complainant was hit by Manish @ Ganja firstly at that time PW2 was present. As per the deposition of PW2 he after receiving injury, left the place and on the way he met his father i.e. deceased and he narrated the fact of giving leg blow by Manish @ Ganja. When the father of the complainant returned and called at 100 number, his father returned to see if Manish was again assaulting him or not. Manish had seen his father calling at 100 number and retorted if his father could done anything to Manish by calling the police and fighting again started between them. Manish directed JCL to bring knife and assault his father and JCL immediately obeyed the command of Manish, brought a knife from his house and stabbed his father from behind. If JCL was not present when Manish had given leg blow on his back, then it is not helpful to the JCL and this is not the case of the prosecution that JCL was present when Manish gave leg blow to CA No. 29/15. Page No. 12/18 Akash. Thus, this contention carries no force.
17. It is contended by ld. Counsel for the JCL that PW2 is not able to tell as to what cloths juvenile was wearing at the time of incident.
I fail to appreciate this contention of ld. Counsel for the JCL as how the PW2 was able to tell the clothes which was worn by the JCL at the time of incident. The date of incident is 28.11.2010 and statement of PW2 was recorded on 17.04.2012 i.e. after a gap of one year and four months. I am of the view that if PW2 is not able to tell the clothes which was worn by JCL at the time of incident it is not helpful to the appellant. Moreover, nothing fruitful was extracted during the cross examination of PW2. PW2 in clear terms stated that his father was lying on the street and police had come to the spot within half an hour to one hour and his mother was also present there. Thus, from the testimony of PW2 it is clear that PW2 was present at the spot. No suggestion was given to the PW2 that he was not present at the time of incident. Only suggestion was given that juvenile neither brought the knife nor attacked the deceased and neither participated in the incident. Moreover, the Juvenile has not denied his presence. No reason has been given by the JCL as to why PW2 will falsely implicate him and will exonerate the real culprits.
18. PW4 Raju Yadav has deposed that on 28.11.2010 at 5:00 PM CA No. 29/15. Page No13/18 Kade Deen called at his phone that a quarrel had taken placed near his house. He immediately rushed to the spot and saw that Manish @ Ganja and JCL Viru, were quarreling with Kade Deen. This witness also deposed that Akash came there running and told them that Manish @ Ganja and JCL Viru had stabbed Kude Deen with knife. This witness also deposed that he and Darshan Singh rushed to the spot. This witness in cross examination deposed that he reached at the spot within five minutes after receiving call from Kude Deen that Manish @ Ganja and Viru were quarreling with him. This witness also stated that quarrel was taken place on the road in front of the house of JCL Viru. I am of the view that the fact that Akash came running and told the fact to PW4 that Manish @ Ganja and JCL Viru had stabbed Kude Deen with knife is admissible under Section 6 of the Indian Evidence Act.
19. Testimony of PW4 also remained unshattered during cross examination. Counsel for the JCL is not able to shatter the testimony of PW4 in any manner. During cross examination this witness also stated that when he came for the first time on call of Kude Deen the dispute was pacified and he left the spot leaving both the parties at the spot itself. This witness also stated that it took 5 minutes to reach the house of Darshan Singh from the spot and Akash came to him just after 23 minutes of his reaching to Darshan Singh and Akash made call at 100 number. Thus, presence of PW4 at the spot cannot be doubted.
CA No. 29/15. Page No. 14/18
20. PW5 Jasbir Singh, who stated that on the day of incident in the evening he went for urination in a nearby public toilet and when he came back, he saw one man lying injured on the road near by shop. This witness also deposed that son of injured was standing near him and was calling the police at 100 number. Though this witness did not tell as to who assaulted the injured but he deposed that son of the injured was standing near him and he made call at 100 number. I am of the view that this statement of PW5 is also admissible.
21. In the present case the handle of the knife was recovered at the instance of the JCL and ld. Principal Magistrate has rightly held that presence of PW2 is established and it clearly proved that JCL Biru Singh brought knife from his home at behest of Manish and attempted to stab Kade Deen with knife. PW3 Dr. B.N. Mishra also gave opinion that deceased received five injuries i.e. three on abdomen, one on chest and one on knee and this witness also opined that all the injuries were ante mortem in nature and were individually as well as collectively sufficient to cause death in ordinary course of nature.
22. It is contended by ld. Counsel for the appellant that ld. Principal Magistrate erred in law by sending the Juvenile to the Special Home (Majnu CA No. 29/15. Page No15/18 Ka Tila) for one year in contravention of Section 15(3) of the Juvenile Justice (Care and Protection of Children) Act, 2000.
I have perused Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which reads as under:
15. Order that may be passed regarding juvenile (1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit, :
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and wellbeing of the juvenile or any period not exceeding three years.
(f) direct the juvenile to be released on probation of good conduct and CA No. 29/15. Page No. 16/18 placed under the care of any fit institution for the good behaviour and well being of the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home for a period of three years;
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.
Subsection (3) of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 reads as under: (3) Where an order under clause (d), clause (e) or clause (f) of subsection (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law.
I am of the view that as per subsection (3) of the Juvenile Justice (Care and Protection of Children) Act, 2000, the juvenile in conflict with law can only be remained under the supervision of a probation officer if the order is passed under clause (d), clause (e) or clause (f) of subsection (1). The CA No. 29/15. Page No17/18 order directing the juvenile to be sent to a special home is mentioned in clause
(g) of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Thus, this contention carries no force.
23. In view of the above discussions, I am of the view that ld. Principal Magistrate has already taken lenient view and ordered that JCL Biru Singh be kept at Special Home (Majnu ka Tila) for one year from the date of judgment subject to review. I am of the view that in the present case Kade Deen was murdered by Manish @ Ganja along with JCL Biru Singh with common intention. I do not find any infirmity or illegality in the judgment dated 29.04.2015 and order dated 07.05.2015 passed by Ld. Principal Magistrate, Juvenile Justice BoardI, Delhi. The appeal filed by the appellant is without any merits and same is hereby dismissed.
Copy of judgment be supplied to the appellant free of cost. Copy of judgment be sent to the Ld. Principal Magistrate, Juvenile Justice BoardI along with record.
Appeal file be consigned to record room, after necessary compliance.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA)
COURT ON : 10.09.2015. ASJ5 (West), THC, Delhi.
CA No. 29/15. Page No. 18/18