Delhi District Court
State vs . : 1) Pankaj @ Sandeep @ Baccha on 24 February, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 483/17
FIR No. : 382/16
U/s : 302/307/324/323/341/452/34 IPC
P.S. : Jahangir Puri
State Vs. : 1) Pankaj @ Sandeep @ Baccha
S/o Sh. Sita Ram
R/o Jh.No.A 162, ITI Jhuggi,
Jahangir Puri, Delhi.
Offence complained of : 302/307/324/323/341/452/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 26.07.2017
Date of Judgment : 24.02.2018
JUDGMENT
1. On 03.07.2016 at about 10:30 pm Jeet Kumar along with his friend Vijay were returning after answering the call of nature followed by Smt. Guddi mother of Vijay. When they reached near the Khatta, Saddaq, Suresh and Kishan stopped them and said, "Tum dono bade dada bantey hain, aaj tumhari dada giri nikal detain hain tatha kaam tamaam kar detain hain". In the meanwhile Sandeep, Monu and Islam also came there and started assaulting Vijay with the knives. Saddaq, Suresh and Kishan also took out the knives and started assaulting them. Jeet and Vijay started running but State Vs. Pankaj @ Sandeep SC No.483/17 :: 1 ::
Vijay fell down on the ground. Saddaq hit on the foot of Vijay, Suresh and Kishan also assaulted him with the knife. Jeet Kumar ran and reached the Jhuggi of Beena Devi situated on the upper floor. He bolted the door from inside Saddaq, Suresh, Kishan climbed the jhuggi. Saddaq broke open the door of the jhuggi giving brick blows and assaulted him with the knife but he saved himself and the knife blow landed on the finger of his right hand. Suresh and Kishan also entered the Jhuggi and assaulted him on his head, hand and legs. In the meanwhile Sandeep, Sonu, Islam also climbed on the jhuggi from the other side and they also assaulted him with the knives. Beena Devi (Mausi of Jeet Kumar) raised alarm, people started gathering there. All the accused persons waving their arms in the air and extending threat "hat jao jaan se maar denge" ran away from there. Abhishek tried to stop them but Saddaq hit on his shoulder with the knife which was like sword and they all fled away. Jeet Kumar also told that on second July 2016 he had some altercation with Munni Lal S/o Shiv Pujan, but the same was settled. On this statement of Jeet Kumar the FIR was registered for the offences punishable u/s 341/307/324/452 r/w 34 of IPC. During treatment Vijay Kumar succumbed to the injuries, on 17.09.2016 in LNJP hospital. Thereafter, section 302 IPC was added. All the accused persons except Pankaj @ State Vs. Pankaj @ Sandeep SC No.483/17 :: 2 ::
Sandeep @ Bachha were apprehended but no recovery could be effected. After completion of investigation charge sheet against them was filed. They were tried in Sessions case No. 59365/16 and were held guilty and convicted vide order dated.13.11.2017. They were sentenced vide order dated.18.11.2017. Accused Pankaj @ Sandeep @ Bachha was arrested later on. The charge sheet against him was filed. Ld. MM after complying with the provisions of Section 207 Cr.PC committed the case to the Sessions Court as the offences punishable u/s 302 & 307 IPC are exclusively triable by the Sessions Court.
2. Accused was charged for the offences punishable under sections 341/34, 302/34, 307/34, 323/34, 324/34 & 455/34 IPC. Accused pleaded not guilty & claimed trial. Thereafter the case was fixed for prosecution evidence.
3. Smt. Guddi was examined as PW-1. She deposed that on 03.07.2016 at about 10:00 or 10:30 pm she along with her son Vijay and his friend Jeet was coming back from the Sulabh Shauchalya situated in their locality i.e. Jahangir Puri. It was drizzling. Vijay and Jeet were going ahead of her. They were stopped by Saddaq and Kishan carrying knives in their hands and also Suresh who was carrying a sword. At the same time Islam, Sandeep and Sonu also joined them. Islam, Sandeep and Sonu were also carrying weapons in State Vs. Pankaj @ Sandeep SC No.483/17 :: 3 ::
their hands. All the accused persons attacked his son Vijay and Jeet. Jeet managed to run from there. Vijay was assaulted by the above named accused persons with knife and sword. She raised alarm on which accused persons started following Jeet. Hearing her cries Muni Lal reached there. Witness has correctly identified accused Pankaj @ Sandeep @ Baccha as one of the assailants. She along with her brother and daughter Vandana removed injured Vijay to BJRM Hospital. After sometime Jeet was also brought to the same hospital in injured condition completely drenched in blood. On inquiry she came to know that Jeet had entered the Jhuggie of his mausi Beena and there all the accused persons inflicted injuries upon him with knives and swords.
4. Her son Vijay was referred to LNJP hospital. She got her son discharged from LNJP hospital because she felt that his treatment was not properly done. After discharge her son was admitted in a private hospital in Rohini. Her son was operated upon and thereafter discharged. One day the condition of her son was very serious and therefore she took her son to the said private hospital. She was adviced to take him to RML hospital as there was no ICU facility in that hospital. She took her son to RML hospital where he was admitted and lateron expired. She identified the dead body of her son and after post mortem received the same. State Vs. Pankaj @ Sandeep SC No.483/17 :: 4 ::
5. During cross-examination she stated that police recorded her statement on the day of incident at the police station. She was confronted with her statement where it is not so mentioned and that it was drizzling and that she raised alarm. There is one jhuggie between her house and house of Jeet. There were many persons present on the spot. Police did not record statement of public persons who were present there. The incident continued for 10 to 15 minutes. It was dark as it was drizzling. However, there was some light and as the accused persons were of the same locality, she was knowing them and recognized the assailants including the accused. She admitted that there was no animosity between her son and the accused persons. She denied the suggestion that Pankaj was not present there on the relevant date and time as there was an externment order against him passed in the year 2015. She denied the suggestion that accused was present in his village at Ajamgarh at that time or that he has been falsely implicated. Police did not record the statement of her daughter or her brother Muni Lal. Police even did not seize her blood stained clothes. She admitted that she refreshed her memory through IO before deposing in the court. She denied the suggestion that accused was pointed out to her by the IO.
6. Saligram was examined as PW-2. He deposed that State Vs. Pankaj @ Sandeep SC No.483/17 :: 5 ::
about one year back in the summer days at about 10:00 or 10:30 pm he was present in his house. One boy aged about 10 years came to his house and told that his son Vijay had been stabbed and is lying injured near the khatta. He found his son Vijay in injured condition his wife and brother in law Muni Lal were there. They removed Vijay to BJRM hospital.
From there he was taken to LNJP hospital. His son was treated for two weeks in LNJP hospital. There was no improvement in the condition. The leg of his son became blue and doctor warned that his leg may have to be amputated. They took Vijay to private hospital where he was treated after treatment in private hospital they took their son to their house. One day the condition of his son deteriorated, they again went to the private hospital but he was adviced to go to RML hospital where his son was admitted. His son expired in the hospital. He identified the body of his son in the hospital on 18.09.2016. His statement in this regard is Ex.PW8/A. He also handed over the documents regarding treatment of her son Vijay to the police, which were seized by the police vide seizure memo Ex.PW8/A. Lateron he came to know that Sandeep @ Baccha was also one of the assailant.
7. He was cross-examined by Addl.PP wherein he denied the suggestion that he had also seen all the accused persons including Sandeep @ Baccha chasing Jeet or that State Vs. Pankaj @ Sandeep SC No.483/17 :: 6 ::
he told these facts to the police in his statement Ex.PW8/C. Witness was confronted with his earlier statement. He denied the suggestion that he had seen Sandeep @ Pankaj @ Baccha stabbing Jeet. He identified Sandeep @ Pankaj @ Baccha present in the court as he is residing in the same locality. He denied the suggestion that he was not informed by any boy or that he had not reached the spot or taken his son to the hospital.
8. Amar Kumar was examined as PW-3. He deposed that on 03.07.2016 at about 10:30 pm he was present at his house and taking dinner. At that time one boy came to his house and informed that his brother Jeet and his friend Vijay had quarrel with some boys. He came outside and saw Saddaq, Sandeep, Suresh running, Suresh was carrying sword, Sandeep and Saddaq were carrying knives in their hands. He also saw Islam and Kishan who were also having knives in their hands. He saw his brother Jeet in injured condition. He inquired from his brother who told that he had been stabbed in the house of his mausi. He correctly identified Sandeep.
9. He was cross-examined by Ld. Addl. PP where he admitted that he saw his brother Jeet running in the street followed by Saddaq, Sandeep and Suresh carrying knives and sword. His brother entered the jhuggie of Mausi Veena. State Vs. Pankaj @ Sandeep SC No.483/17 :: 7 ::
Jeet bolted the door from inside. Sonu, Islam and Kishan also came there with knives in their hands. They all broke the door of the jhuggie and caused injuries with knives and swords on the body of his brother in order to kill him. He stated that he has forgotten these facts and now recollect the same. He had given this statement in the court earlier also.
10. During cross-examination by the Ld. Counsel for accused he stated that he is not able to recollect the name of the boy who came to his house and informed him about the incident. Police never made inquiries from that boy or recorded his statement. The accused were at a distance of about 10 steps away from him when he saw them running. He did not make any call at 100 number when he saw the accused persons chasing his brother. Vol. Lateron Chandan made the call. He did not move forward to save Jeet as his mother caught hold of his hand because the accused were having knives. He did not tell this fact to the police. There was no previous animosity between Jeet and accused persons. No person was present at the house of his mausi Beena. The house of his mausi is 30 steps away from his Jhuggie. Jhuggie of Veena was lying open at that time. He denied the suggestion that he is deposing falsely or that he had not seen accused persons chasing his brother Jeet. He denied the suggestion that it was dark at that time. It was State Vs. Pankaj @ Sandeep SC No.483/17 :: 8 ::
drizzling and light was there. He had not gone through his statement u/s 161 Cr.PC before deposing in the court. He denied the suggestion that Sandeep was not there at that time or there was an externment order against Sandeep. He denied the suggestion that Sandeep was in his village at Ajamgarh on that date.
11. Smt. Beena was examined as PW-4. She deposed that on 03.07.2016 at about 10:30 or 11:00 pm she was taking meal at ground floor of her house. At that time Jeet son of her sister Bimla came running and went to the first floor of the house. He bolted the same from inside. At the same time Saddaq, Suresh, Sandeep, Sonu, Islam and Kishan also reached her house following Jeet. They were carrying knives and sword. They all followed Jeet to the first floor and broke open the door of the first floor. She was alone in the house at that time. She also followed them. They all attacked Jeet with knives and sword and caused injuries on his person. She intervened to save Jeet and pleaded not to cause injuries to him and said "Babu chhod do maar jayega". The accused Sandeep @ Baccha caught her neck and abused her by saying that "agar jayada bolegi to chaku tujhe ghoop doonga". After causing injuries to Jeet all the above named accused persons ran away warning the weapons in their hands. The family members of Jeet and other public State Vs. Pankaj @ Sandeep SC No.483/17 :: 9 ::
persons also reached there. Jeet was bleeding and was unconscious. They removed Jeet to BJRM Hospital. The accused persons also damaged her house and the property lying in her house. She identified accused Pradeep correctly.
12. During cross-examination she was confronted with her statement where it was not found mentioned that she intervened to save Jeet and pleaded them not to cause injuries to Jeet and said "Babu Chhod do maar jayega" on which accused caught hold her neck and said "agar jayada bolegi to chaku tujhe ghoop doonga". She was also confronted with her statement where it was not found mentioned that her house and the articles were also damaged by the accused persons. She did not make a call to the police. The door of the room on first floor was broken within 4-5 minutes. Her house is situated 4-5 houses away from the house of Jeet. She did not call any person from the house of Jeet. She stated that she started shouting and mother of Jeet also reached there. The neighbours did not come to her house as they closed their doors. The accused persons threatened everybody and therefore, no body dared to come out. The mother of Jeet reached when the accused had already ran away. Police had also taken the photographs of her house. Police asked her to wash the room. She said that IO met her outside the court and read over her State Vs. Pankaj @ Sandeep SC No.483/17 :: 10 ::
statement to her. She denied the suggestion that no such incident had taken place in her presence and that she had not witnessed the incident. She denied the suggestion that accused Sandeep was not in the area of PS: Jahangir Puri as there was an externment order against him passed in 2015.
13. Ct.Vinod was examined as PW-5. He deposed that on the intervening night of 03 rd or 4th July 2016 he was posted at PS: Jahangir Puri. On receipt of DD No.62A regarding quarrel at 51 T-huts, K-block Jahangir Puri, he along with ASI Ram Chander reached there. They came to know that injured had already been removed to BJRM hospital. They reached BJRM hospital where IO collected MLC of Sushila, Vijay, Jeet and Abhishek. ASI Ram Chander recorded the statement of Jeet Kumar S/o Sh. Ramesh Mehto and made his endorsement. ASI Ram Chander prepared rukka and handed over the same to him at 3:00 am for registration of FIR. He went to police station and presented the rukka to duty officer who got registered FIR in computer through computer operator. After registration of FIR duty officer handed over him the original rukka and copy of FIR. He came back on the spot and handed over the original rukka and copy of FIR to ASI Ram Chander. ASI Ram Chander prepared site plan at the instance of Jeet kumar and State Vs. Pankaj @ Sandeep SC No.483/17 :: 11 ::
recorded statement of witnesses. They went in search of accused persons but they were not found in their houses. They also accompanied ASI Ram Chander to LNJP hospital where ASI Ram Chander recorded statement of injured Vijay Kumar.
14. During cross-examination by the Amicus he stated that many public persons were present on the spot when they reached there. IO did not record statement of any person on the spot when they reached there. They remained at the spot for 10 to 15 minutes. They reached the hospital on the motorcycle of ASI Ram Chander. In the hospital IO met Jeet, Sushila and Abhishek. He does not know what is the relation between Jeet and Sushila. He denied the suggestion that statement of Jeet was not recorded in his presence or that he had not taken the rukka to the police station.
15. Chandan was examined as PW-6. He deposed that on 03.07.2016 at about 10:00 or 10:30 pm he along with his friend Pawan and Pintoo were standing in the gali at the corner near the shop of Paan, biri, cigarette. He saw Jeet running in the street followed by Saddaq, Sandeep @ Baccha, Suresh was carrying sword. Sandeep and Saddaq were carrying knives in their hands. They were followed by Sonu, Islam and Kishan. They were also carrying weapons. Jeet entered the house of his mausi Veena and went to the State Vs. Pankaj @ Sandeep SC No.483/17 :: 12 ::
first floor and bolted the door. They also reached there the accused persons attacked Jeet and caused injuries with weapons in their hands. After causing injury to Jeet all the accused persons ran away with weapons in their hands. He reached first floor of jhuggie of Beena. Jeet was injured having stab injuries on various parts of the body. Jeet was bleeding he along with beena and other family members reached BJRM hospital where he was medically examined. In the hospital they came to know that accused persons had also stabbed Vijay. Vijay was also brought to the hospital but he was referred to another hospital. Earlier he identified the other accused persons and this time he identified Sandeep @ Baccha present in the court correctly.
16. During cross-examination he stated that statements of Pawan and Pinto were not recorded in his presence. He had seen Jeet from a distance of 3-4 steps firstly running in the gali. He did not make any call to the police. He also did not intervene to save Jeet. He was standing in the gali outside the house of Beena at a distance of about 10-12 steps from the place of incident. He did not raise any alarm, when the accused were present in the jhuggie of Beena. He raised noise when accused ran away. No neighbourer came forward to save Jeet. There are 20 to 25 Jhuggies in between house of Jeet and Beena. He did not go to house of Jeet for calling State Vs. Pankaj @ Sandeep SC No.483/17 :: 13 ::
his family members. The family members of Jeet reached there of their own. He does not know if Pintoo and Pawan also reached at the place of incident. The incident took place for half an hour from the time he saw accused persons chasing Jeet and when they left. He denied the suggestion that he had not witnessed the incident or that he was not present there at that time. He denied the suggestion that accused Sandeep was not present in Delhi on the day of incident.
17. Dr. Mukesh Mandal was examined as PW-7. On 03.07.16 he was working as CMO at BJRM hospital. On that day he examined Vijay, Sushila and Jeet vide MLC's No.117417, 117416 & 117418 respectively. He proved those MLCs as Ex.PW17/A, Ex.PW17/B and Ex.PW17/C. The final opinion on the nature of injuries on the MLC of Jeet was given by Senior Resident surgery. He referred the patient for further management to higher centre. MLC of Abhishek was prepared by Dr. Monika Goel who was on duty with him. He identified her signatures. The MLC of Abhishek was proved as Ex.PW 17/D.
18. During cross-examination he stated that names of the assailants are not mentioned in the MLC. He also admitted that there was no injury on the vital part of patients.
19. Inspector Manohar Lal was examined as PW-8. He State Vs. Pankaj @ Sandeep SC No.483/17 :: 14 ::
proved the scaled site plan as Ex.PW7/A.
20. HC Izaz Ali was examined as PW-9. He was working as duty officer on 17.09.2016. At 4:16 pm he received information from wireless operator on 17.09.2016 that K-
block Jahangir Puri near Navin Model School opposite mother dairy "40-50 logo ne motorcycle ke saath jaam kar diya hai, karan na malum" he recorded DD No.46A in this regard. He proved the copy of the same as Ex.PW2/A. This DD was assigned to SI Sandeep.
21. During cross-examination he denied the suggestion that DD is ante dated and ante timed.
22. ASI Sikander was examined as PW-10. On 04.07.2016 he was working as duty officer. On that day at about 03:10 am Ct. Vinod Kumar came with a rukka sent by ASI Ram Chander on the basis of which he got recorded the FIR, copy of which is Ex.PW6/A. He made endorsement on the rukka which is Ex.PW6/B. The certificate u/s 65B Evidence Act is Ex.PW6/C. He handed over the copy of FIR and original rukka to Ct. Vinod Kumar to hand over the same to ASI Ram Chander for further investigation. On 03.07.2016 HC Dinesh was working as duty officer and at about 11:24 pm HC Dinesh received information from wireless operator regarding quarrel at 51 T-huts, K-block ITI Jahangir Puri. DD No.62A, copy of which is Ex.PW62/D was recorded in this State Vs. Pankaj @ Sandeep SC No.483/17 :: 15 ::
regard.
23. ASI Ram Chander was informed telephonically about this DD and for taking necessary action. On 03.07.2016 at 11:28 pm HC Dinesh also received information from wireless operator about quarrel at H.No.319 K-block ITI Jahangir Puri, Delhi. On this information DD No.63A Ex.PW6/E was recorded. HC Dinesh telephonically informed HC Partap to take necessary action. At 11:29 pm HC Dinesh received information from wireless operator regarding quarrel near Kudey Daan ke khatte ke pass, near ITI Jahangir Puri. On this information DD No.64A Ex.PW6/F was recorded. ASI Ram Chander was instructed on telephone to take necessary action. At 11:38 pm HC Dinesh received information from wireless operator regarding quarrel at A-575, K-block Jahangir Puri Jhuggie. On this information DD No.65A exhibit PW6/G was recorded. HC Pratap was directed to take necessary action.
24. During cross-examination he denied the suggestion that the DD entries and FIR were ante dated and ante timed.
25. Ct. Naresh Kumar was examined as PW-11. He deposed that on 17.09.2016 he was in the beat No.2, K-
Block Jahangir Puri. At about 4:15 pm on receipt of information that public persons had gathered on the main road K-Block, Jahangir Puri he reached there. Other police State Vs. Pankaj @ Sandeep SC No.483/17 :: 16 ::
staff including SI Sandeep and Ct. Ravi were already there. The dead body of Vijay Kumar S/o Saligram was found lying on the road. Many public persons were present who had stopped the flow of traffic. He came to know that about 2 ½ months ago Vijay Kumar had been stabbed and killed by Islam, Sonu, Saddaq, Sandeep, Suresh and Kishan. Inspector Radhey Shyam and other senior police officials reached at the spot and pacified the public persons who had stopped the traffic. The dead body was removed to BJRM hospital by him and other staff. SI Sandeep prepared application for preserving the dead body in the mortuary. On 18.09.2016 Inspector Radhey Shyam reached the mortuary and prepared the documents for post mortem. The dead body was identified by Saligram and Ram Lalak. After post mortem the dead body was handed over to the relatives.
26. During cross-examination by the defence he stated that in his presence IO did not record the statement of any public person on 17.09.2016. He admitted that the dead body of Vijay was placed on the road. He does not know at which place Vijay had expired. No photograph of dead body of Vijay were taken before post mortem. He denied the suggestion that post mortem was not conducted in his presence.
27. Ct. Raju was examined as PW12. On 03.07.2016 he was posted in CPCR PHQ at extension no.129. On that day State Vs. Pankaj @ Sandeep SC No.483/17 :: 17 ::
at 23.28:10 hrs. an information was received from Mobile No.8010360920 that "Kudey daan ke khattey ke pass, ITI Jahangir Puri, quarrel". He fed this information in PCR Form Ex.PW21/C and dispatched the same 23:28:52 hrs. The testimony of this witness has gone unchallenged and uncontroverted.
28. SI Devender Kumar was examined as PW-13. He was working as Nodal officer in CPCR PHQ. He generated PCR forms, copies of which are Ex.PW19/A, Ex.PW21/A, Ex.PW21/B and Ex.PW21/C regarding the information received on 03.07.2016. He proved the certificate u/s 65B Evidence Act as Ex.PW21/D.
29. Ikram S/o Sh. Babu Khan was examined as PW-14.
He deposed that on 03.07.2016 at around 10:30 or 10:45 pm he was present at his jhuggi and taking meal. He heard some noise in the street. A lady came to him and asked his mobile phone. He gave his mobile phone to that lady bearing No.8010360920 and 9873565254. Police also called on his mobile phone and inquired from him and he told these facts to the police also. The testimony of this witness has gone unchallenged and uncontroverted.
30. Dalip was examined as PW-15. He deposed that on 03.07.2016 at about 10:30 or 10:45 pm he was washing his hands outside his Jhuggie. He saw Jeet running and entering State Vs. Pankaj @ Sandeep SC No.483/17 :: 18 ::
the jhuggie of his Mausi Beena who reside in his neighbouring jhuggi. He also saw that Jeet was followed by 5-6 boys having knives and swords. They also entered the jhuggie of Beena. He immediately made a call at 100 number from his mobile No.9654590677. Later on he came to know that Jeet had expired.
31. During cross-examination he stated that he cannot identify the boys whom he had seen running towards the jhuggie of Mausi Beena.
32. HC Monu Yadav was examined as PW-16. On
04.07.2016 he was working as photographer in mobile crime team. On receipt of call he along with SI Parveen Kumar and Ct. Sandeep went to A-568, ITI, K-block, Jahangir Puri, Delhi. Police officials of PS: Jahangir Puri and SI Parveen Kumar met them there. SI Parveen Kumar inspected the scene of crime. He took 6 photographs of the scene of crime from different angles with his digital camera. The photographs are Ex.PW28/A1 to A6. The CD of the photographs is Ex.PW28/B. The certificate u/s 65B is Ex.PW28/C. The testimony of the witness has gone unchallenged and uncontroverted.
33. Sh. Muni Lal was examined as PW-17. He stated that in the last year prior to this incident his sons Dharambir and Shankar had quarrelled with Jeet @ Kariya on the issue of State Vs. Pankaj @ Sandeep SC No.483/17 :: 19 ::
easing out of the dog in front of house of Jeet. The neighbours and respectables of the locality intervened and the matter was resolved and compromised. The testimony of this witness has gone unchallenged and uncontroverted.
34. Smt. Rinki was examined as PW-18. She deposed that on 03.07.2016 she was present in her house. At about 10:30 or 10:45 pm she heard the noise of quarrel in the gali. She made a call at 100 number from the mobile phone number of which she did not remember. In answer to a leading question put by Ld. APP, she admitted that she made the call from mobile phone No.8375904428. The testimony of this witness has also gone unchallanged and uncontroverted.
35. Ct. Ravi Kant was examined as PW-19. He deposed that on 23.05.2017 he was posted at PS: Keshav Puram. He along with HC Jaspal Yadav were searching for proclaimed offenders. They left the police station vide DD No.48B and reached village Bhalswa near Laxmi Narayan Mandir secret informer met them and pointed out accused Pankaj @ Sandeep @ Baccha. He was apprehended and arrested at 1:30 pm vide arrest memo Ex.PW19/A. His personal search was conducted vide 19/B. He correctly identified the accused Sandeep.
36. During cross-examination he stated that he does not remember at what time they left the police station, however, it State Vs. Pankaj @ Sandeep SC No.483/17 :: 20 ::
was morning hours. They were on motorcycle. He does not remember at what time secret informer met them. IO did not reduce the secret information into writing. IO also did not inform the senior police officials regarding apprehension of proclaimed offender and the secret information. The secret informer pointed out the accused from a distance of about 500 meters. After pointing out the secret informer left the spot. The distance between the place of arrest and PS:
Keshav Puram is about 4 to 5 kms. No police official was called from the local police station Jahangir Puri. IO requested public persons to join the proceedings but none agreed. IO might have recorded the reasons disclosed by the public persons for Non-joining. Pujari of Laxmi Narain Mandir was also requested to join the proceedings, but he refused. He cannot tell the names and addresses of the public persons who refused to join the investigation. He also cannot tell the name of the Pujari of Laxmi Narayan Mandir. IO was having order declaring accused as Proclaimed Offender. They remained on the spot for 10-15 minutes. He denied the suggestion that accused was not arrested in the manner and from the place as deposed by him. He denied the suggestion that accused was lifted from his native village from Distt. Ajamgarh.
37. HC Jaspal Yadav was examined as PW-20. He fully State Vs. Pankaj @ Sandeep SC No.483/17 :: 21 ::
corroborated the testimony of PW-19. He also deposed that he made DD No.19A Ex.PW20/A and prepared kalandra u/s
41./1(c) Cr.PC Ex.PW20/B. He got accused medically examined and produced him in the court on the same day.
Information was also given to PS: Jahangir Puri and PS:Mahendra Park with regard to the arrest of accused.
38. During cross-examination he stated that they left the police station at about 11:30 am. Copy of DD No.48B have not been placed on record. The distance between police station and place of secret information is about 5 to 6 kms. He did not record the secret information on any paper. He did not inform the senior officials with regard to the secret information and apprehension of the proclaimed offender. He also did not inform the local police station from the area of which accused was apprehended. He did not call any person from Laxmi Narayan Mandir to join the investigation. The secret informer pointed out the accused from a distance of about 400 meters. The secret informer left after pointing out the accused. They remained on the spot for about 15 to 20 minutes. He denied the suggestion that accused was out of Delhi since 2015 due to externment order or that accused was lifted from his native village. He denied the suggestion that accused has been falsely implicated in this case.
39. ASI Ram Chander was examined as PW-21. He State Vs. Pankaj @ Sandeep SC No.483/17 :: 22 ::
deposed that on the intervening night of 3 /4 of July 2016 he was posted at PS: Jahangir Puri. On that day on receipt of DD No.62A Ex.PW6/D he along with Ct. Vinod reached ITI K- block near Khatta. They came to know that injured had already been removed to hospital. They reached BJRM hospital where Sushila wife of Amar Singh, Vijay Son of Saligram, Jeet son of Sh. Ramesh and Abhishek son of Shiv Kumar were found admitted. No eye witness was found in the hospital and on the spot. He recorded the statement of Jeet Kumar Ex.PW31/A. He made endorsement on the same Ex.PW31/B and handed over the rukka to Ct. Vinod Kumar. Ct. Vinod went to police station and came back at 4:30 am. Ct. Vinod handed over to him original rukka and copy of FIR. He prepared the site plan Ex.PW31/C at the instance of Jeet. Crime team was called. SI Praveen Kumar inspected the scene of crime and gave his report Ex.PW31/D. The photographer took the photographs.
40. During cross-examination he stated that he received DD No.62A at about 11:30 pm. The distance between police station and ITI, K-block is about half kilometer. He did not find any eye witness on the spot. He remained there for about one and half hour. He reached BJRM hospital on foot. Relatives of Vijay and Jeet met him in the hospital. It took him half an hour in recording the statement of Jeet Kumar. State Vs. Pankaj @ Sandeep SC No.483/17 :: 23 ::
He did not record the statement of any other person. He admitted that he did not obtain the signatures of Jeet on the site plan. He denied the suggestion that he did not visit the spot as well as BJRM hospital. He also denied the suggestion that he did not record the statement of Jeet Kumar in the manner as deposed by him or that all the proceedings were conducted in the police station.
41. Smt. Sushila was examined as PW-22. She stated that she is illiterate and does not remember the date which was many months ago. At about 10 or 11 pm she was standing outside her house. Her son had gone out of the house to play in the gali. She heard the noise of public persons and noticed that quarrel was going on between many public persons. She sustained injury on her head as some brick hit her. She does not know who inflicted the said injury to her. She was taken to BJRM hospital by her son and was medically examined. The testimony of this witness has gone unchallenged and uncontroverted.
42. Inspector Radhey Shyam was examined as PW-23. He deposed that on 05.08.2016 he received the file for further investigation. None of the accused had been apprehended till that date. No exhibits were found deposited in the malkhana. On 07.08.2016 he along with Ct. Ashok and Ct. Shri Bhagwan went to K-Block Jhuggies, Jahangir State Vs. Pankaj @ Sandeep SC No.483/17 :: 24 ::
Puri behind ITI and arrested Islam S/o Sh. Hassan Mohd. Khan. On 17.09.2016 he received the information from duty officer that witness Vijay had expired. The body was taken to BJRM hospital and post mortem got conducted. After post mortem the dead body was handed over to the relatives.
43. On 20.09.2016 Inspector Manohar Lal was taken to the scene of crime where he took measurements and rough notes for preparing scaled site plan. On 18.10.2016 he came to know that accused Kalim and Sonu are in J/C in case FIR No:1011/16. They were arrested in this case. They went to village Lakshman Pur Jaat, Ghonda from where accused Suresh was arrested.
44. On 28.10.2016 he along with Ct. Ashok and Ct. Shri Bhagwan left the police station in search of accused persons at ITI chowk from where Kishan was arrested. Thereafter, he prepared the charge sheet against them and filed the same.
45. On 25.12.2016 duty officer PS: Jahangir Puri received information that Jeet Kumar has expired in the are of PS:
Mahendra Park. Case FIR No.598/16 was registered in PS:
Mahendra Park with regard to murder of Jeet Kumar. On 08.02.2017 accused Saddaq Hussain was arrested and he prepared supplementary charge sheet.
46. On 18.04.2017 accused Sandeep @ Baccha @ Pankaj was declared proclaimed Offender. On 23.05.2017 he State Vs. Pankaj @ Sandeep SC No.483/17 :: 25 ::
received information from PS: Keshav Puram that accused Sandeep @ Pankaj @ Bachha has been arrested in Kalandra DD No.19A PS: Keshav Puram. He recorded statement of HC Jai Pal and HC Ravi of PS: Keshav Puram and also collected the kalandra. On 24.05.2017 accused was produced in the court. He arrested the accused vide arrest memo Ex.PW23/A. Accused made the disclosure statement Ex.PW23/B. He also obtained the police custody remand of the accused. On 25.05.2017 accused was taken out of the lockup. Accused led them to the bushes situated behind BJRM hospital Jahangir Puri, but no knife could be recovered. The memo in this regard was prepared which is Ex.PW23/C. Accused also pointed out the place of occurrence vide memo Ex.PW23/D. DD No.36B vide which the information regarding arrest was received is Ex.PW23/E. He prepared the charge sheet against accused Pankaj and filed the same.
47. During cross-examination he stated that no photograph of the dead body were taken before the same were sent to mortuary for post mortem.
48. He reached the court at about 4 pm on 23.05.2017. The police officials who apprehended accused in the kalandra met him in the court but accused had already been sent to J/C on that day. He admitted that there was an State Vs. Pankaj @ Sandeep SC No.483/17 :: 26 ::
externment order against accused Sandeep @ Baccha but he does not know if the externment order was passed in October 2015 and was effective on the day he was arrested. He denied the suggestion that accused was not in Delhi till he was arrested or on the day of incident. The public witnesses told that they had seen the accused. On 25.05.2017 DD entry was made when they left with the accused for investigation but he does not remember the number. The distance between the police station and where the knife was searched is about 500 meters. They reached there on foot. Public persons was called to join in the investigation but none agreed. No written notice was given to the public persons who refused to join the investigation. No videography or photography was done at that time when the search of the knife was made. They remained there for about half an hour. He admitted that scene of crime was in his knowledge before accused pointed out the same. He denied the suggestion that investigation has not been fairly conducted.
49. Sh. Abhishek was examined as PW-24. He deposed that on 03.07.2016 at about 10:00 or 10:30 pm he was standing outside his house in the street. At that time one boy came and informed that Vijay and Jeet are beaten by Suresh, Kishan, Saddaq, Islam, Sonu and Sandeep. While State Vs. Pankaj @ Sandeep SC No.483/17 :: 27 ::
he was going in the street he saw Jeet entering the Gali. He also noticed Suresh having sword and Sandeep, Kishan, Sonu, Islam and Saddaq carrying knives and chasing Jeet. He turned to his back side and started running in the gali. Sandeep is present in the court today and correctly identified. Accused Suresh gave the blow of sword on the upper backside of his shoulder. He escaped to the another gali and accused persons including Sandeep kept on chasing Jeet. He hid himself under the staircase of one Jhuggi and came out when the accused persons had went away. He saw Jeet coming out of the Jhuggie of Beena in injured condition. Jeet was removed to the hospital by the public persons and he also went to BJRM hospital. Police made inquiries from him and recorded his statement. He also came to know that the accused persons including Sandeep had also stabbed Vijay.
50. During cross-examination he stated that his statement was recorded by the police but he does not remember the date. He was confronted with his statement where it was not mentioned that he hid himself under the stair case of one Jhuggi. He had not seen Jeet coming out of the Jhuggi of his Mausi Veena in injured condition. He saw Jeet in injured condition in the hospital. He cannot tell the name of the boy who told him about the incident on that day. Police had not recorded the statement of that boy. He had not seen that boy State Vs. Pankaj @ Sandeep SC No.483/17 :: 28 ::
earlier to the incident and even after the incident. He saw the accused persons from a distance of about 10 steps. He did not make any call at 100 number. The house of Jeet is situated near the place where he stood in the Gali. He did not raise any noise. He cannot tell the number of the Jhuggi in the stair case of which he hid himself. He remained there for about 10 minutes. He admitted that there was an externment order passed against Sandeep. He denied the suggestion that Sandeep was not in Delhi at the time of incident due to externment order. He denied the suggestion that he had not seen Sandeep on the day of incident or that Sandeep was at his native village at Distt. Ajamgarh.
51. Thereafter, prosecution evidence was closed.
52. Statement of accused was recorded wherein he denied the entire evidence against him and stated that he has been falsely implicated. He was not in Delhi at the time due to the externment order and was in his native village in Distt. Ajamgarh UP and had never come to Delhi till his apprehension by police official of PS:Keshav Puram from his village. He wished to lead evidence in defence and thereafter, case was fixed for defence evidence.
53. Ct. Atul was examined as DW-1. He proved the externment order passed on 24.09.2015 against Pankaj @ Sandeep S/o Sh. Sita Ram i.e. the accused herein. He was State Vs. Pankaj @ Sandeep SC No.483/17 :: 29 ::
permitted to attend the court in National capital territory of Delhi on all the dates of hearing of all cases pending against him in the court. The copy of the externment order has been proved as ExDW1/A.
54. At this stage it was realized that Dr. Anshul Saxen who conducted the post mortem on the dead body had not been examined. Dr. Anshul Saxena was called and was examined as PW-25. He deposed that on 18.09.2016 he conducted the post mortem on the body of Vijay S/o Sh. Salikram aged 19 years male. There were five external injuries on the body which he detailed in the post mortem report. The deceased died due to septicemia. He proved the post mortem report as Ex.PW23/A.
55. During cross-examination he stated that the external injuries mentioned in the post mortem report are not on vital part of the body however, he cannot accurately opined as to the vital part with regard to internal injuries that might have been caused earlier as the patient died on 17.09.2016. He stated that it is unlikely that the patient would have survived with amputation of left foot as there were other injuries present over the body. In reply to a court question he stated that the septicemia resulted due to the injuries caused on the person of deceased and not due to any negligence in treatment. Thereafter, evidence was closed. Statement of State Vs. Pankaj @ Sandeep SC No.483/17 :: 30 ::
accused was recorded again u/s 313 CrPC wherein he denied the evidence. He wished to lead evidence in defence. The case was again fixed for defence evidence.
56. Sh.Kapil Dev was examined as DW-2. He deposed that Pankaj is his nephew. In may 2016 his father fell ill and since then Pankaj started living with him in his village. Sandeep stayed with him in his village upto 21.05.2017 when Delhi police apprehended him.
57. During cross-examination by the Ld. APP he deposed that he is not aware if there was any externment order against his nephew Sandeep. He had not filed any complaint with any authority till date that Sandeep was apprehended from his village. He also did not make a call at 100 number.
58. During cross examination the witness stated that he is not aware if the accused has complied with the externment order Ex.DW1/A.
59. Thereafter the defence evidence was closed and case was fixed for final arguments.
60. I have heard Ld. Addl. PP for the State, Ld. Amicus Curiae for the accused and perused the record.
61. Ld. APP for the State submitted that this case is based upon the account of eye witnesses. Incident started near Khatta, ITI on the main road jhuggies when Vijay and Jeet were returning after answering call of nature followed by State Vs. Pankaj @ Sandeep SC No.483/17 :: 31 ::
Guddi mother of Vijay. Guddi has been examined as PW-1 she has fully supported prosecution case and deposed that on 03.07.2016 her son Vijay alongwith his friend Jeet were returning after answering call of nature from Sulabh Shauchalya, it was drizzling, her son and Jeet were going ahead of her. It was 10:00 / 10:30 pm when Saddaq, Kishan and Suresh stopped Vijay and Jeet. She also deposed that Saddaq and Kishan were armed with knives and Suresh was having sword. Accused Islam, Sandeep and Sonu also joined them with weapons in their hands. Ld. APP submitted that all these accused persons are residents of the same Jhuggie area. She stated that they all attacked on her son Vijay and his friend Jeet. Vijay sustained injury and fell down. Jeet escaped and ran away. She had correctly identified Sandeep @ Pankaj as one of the assailant. She removed her son to hospital where he remained admitted for 2 - 2 ½ months and died. Ld. APP submitted that she is the only witness to the incident and other witness was Jeet but he had also been murdered in the area of PS: Mahendra Park and the FIR No.598/16 was registered in this regard in Mahendra Park where again Saddaq, Sandeep and other persons are accused.
62. Ld. APP submitted that Guddi Devi has stood through the test of cross-examination and there is nothing on record State Vs. Pankaj @ Sandeep SC No.483/17 :: 32 ::
to disbelieve her or that she had any reason to depose falsely against accused persons. Rather she has stated that there was no animosity between her son and accused. Ld. APP submitted that Vijay died after 2½ months of commission of offence in LNJP hospital. On 17.09.2016 post mortem on his body was conducted and report has been proved as Ex.PW23/A where the doctor opined the cause of death as septicemia. The complete record of treatment has been proved on record which was seized by the police vide memo Ex.PW8/B. Ld. APP submitted that the septicemia has occurred due to injuries caused on his person and hence these injuries only resulted into death and the offence u/s 302 IPC is made out. Ld. APP in support of prosecution case relied upon Judgments cited as Sucha Singh vs. State of Punjab, AIR 2003 SC 3617 wherein Supreme Court has held as under:
22. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra [1974(1) SCR 489 (492-493)] :
".......The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principle or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to State Vs. Pankaj @ Sandeep SC No.483/17 :: 33 ::
embrace every hunch, hesitancy and degree of doubt......."
".....The evil of acquitting a guilty person light- heartedly as a learned author Claville Willians in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless........"
".........a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent..."
63. 23. The position was again illuminating highlighted in State of U.P. v. Krishna Gopal (AIR 1988 SC 2154). Similar view was also expressed in Gangadhar Behera and ors. v.
State of Orissa (2002(7) Supreme 276).
24. So far as inaction of PWs 9 and 10 in not coming to rescue of deceased is concerned, it has been noted by the trial Court and the High Court that both of them were unarmed and bare handed and the accused persons were armed with deadly weapons. How a person would react in a situation like this cannot be encompassed by any rigid formula. It would depend on many factors, like in the present case where witnesses are unarmed, but the assailants are armed with deadly weapons. In a given case instinct of self-preservation can be the dominant instinct. That being the position, their inaction in not coming to rescue of the deceased cannot be a ground for discarding their evidence."
The Supreme Court in the case titled State of Rajasthan v. Arjun Singh, (2011) 9 SCC 115 held that:
"17. Finally, learned senior counsel for the accused pointed out that inasmuch as Himmat Raj Singh died after 35 days due to septicemia, the Courts below are not justified in convicting the accused persons for an offence under Section 302 Indian Penal Code for his death. Considering the medical evidence that Himmat Raj Singh sustained 7 gun State Vs. Pankaj @ Sandeep SC No.483/17 :: 34 ::
shot injuries which were sufficient to cause death in the ordinary course, we are satisfied that the death of Himmat Raj Singh undoubtedly falls within the ambit of 302 Indian Penal Code."
Ld. App has also relied upon the judgment cited as Vineet Kumar Chauhan v. State of U.P.,AIR 2008 SC 780 wherein it was held that:
"13. Insofar as the testimonies of P.W.1 and P.W.2, the two star witnesses of the prosecution, are concerned, from the impugned judgment, it is manifest that the High Court, on analysis of their statements, has found these to be trustworthy. The High Court has observed that testimony of these two natural witnesses is of sterling character with no holes whatsoever. Based on this evidence, the High Court has found that it was the appellant who had opened fire from the revolver from his door, one of which had hit the victim, who had come to close the main door of her house. Nothing has been shown to us so as to warrant interference with the said finding recorded by the High Court. Therefore, in the context of this unimpeachable evidence, it stands proved that the appellant had gone to the house of the deceased; some unsavoury incident took place there; he returned to his house in a huff; took out the revolver of his father and fired shots towards the house of the deceased; one of the bullets hit the deceased and the same proved to be fatal. Having bestowed our anxious consideration to the evidence on record, in particular the testimony of P.W.1 and P.W. 2, we are of the opinion that the High Court was correct in coming to the conclusion that the appellant was responsible for causing the fatal injury to the deceased. We are also in agreement with the High Court that though as per the post-mortem report the deceased died of septicemia and toxemia because of bedsores, the basic cause of her death was the bullet injury caused to her by the appellant."
Ld. APP has also relied upon the judgment cited as Jahangir Khan v. State (NCT of Delhi), 2016 (233) DLT 1 wherein it was held that:
"25. Testimony of PW-20 SI Ramesh Kumar would show that the seized articles were sent to FSL for opinion. The opinion was received being Ex.PW- State Vs. Pankaj @ Sandeep SC No.483/17 :: 35 ::
20/H. Although as per the opinion, human blood was found on the clothes, the earth control had AB Group which matched with the blood group of the deceased whose underwear also had AB blood Group and so did the blood stains were. Other than that, although human blood was found on the article, but there was no reaction and the result was inconclusive. The submission of the learned counsel for the appellants that the deceased had not died on account of injuries but on account of septicemia, in our view, is without any force as PW-11 Dr. Komal Singh had opined that the septicemia shock was caused by the wounds sustained seven days back. We find that there is no infirmity in the judgment of the Trial Court on the order of sentence with respect to the appellants Firasat Ali and Shah Nawaz."
64. Ld. APP submitted that the accused along with his co-
accused persons also attacked Jeet. The witness Abhishek PW-24, saw the accused persons chasing Jeet who was running in the street. Abhishek identified all the accused persons. He also said that Suresh was having sword and all other accused were having knives and he was also hit on his shoulder with the sword by Suresh. The MLC of Abhishek has been proved on record as PW17/D wherein the doctor has opined the nature of injury as simple. Ld. APP submitted that he is one of the injured who received injury in this case. His testimony carries much more weight. According to him all the accused persons were chasing Jeet and when he was hit he hide himself in the stair case of one Jhuggie. When he came out he saw his brother Jeet in injured condition coming out of jhuggi of his Mausi Beena. Ld. APP submitted that other witness Amar Kumar PW-3, also fully corroborated State Vs. Pankaj @ Sandeep SC No.483/17 :: 36 ::
testimony of PW-24. He deposed that his brother Jeet entered Jhuggi of his Mausi and bolted the door. Accused persons broke open the door and caused injuries on the person of Jeet and thereafter, fled away. He also said that he had seen accused persons following his brother. He has also identified accused Sandeep correctly. This testimony of PW-3 is further corroborated by testimony of PW-6 Chandan and PW-4 Beena in whose jhuggie the accused persons attacked Jeet. Ld. APP submitted that all the witnesses have correctly identified the accused. They are consistent and corroborated each other that they all including Sandeep @ Pankaj attacked Jeet and after attacking him they left. There is one more witness Dalip though he is not able to identify accused persons but still his testimony is very important as he says that this incident has taken place and also that Jeet was followed by 5-6 persons having knives and swords. The most important fact is that Jeet Kumar ran inside the Jhuggie of his mausi Beena PW-4 and accused persons also ran towards jhuggie of Ms. Beena. Ld. APP submitted that all these accused persons entered the jhuggie of Beena as deposed by PW-4 and PW-6 and PW-3. They inflicted multiple injuries on the person of Jeet. As per the MLC there was six injuries on the person of Jeet caused by sharp object which corroborates the ocular evidence of PW-24, PW-3, PW-6 and State Vs. Pankaj @ Sandeep SC No.483/17 :: 37 ::
PW-4. Ld. APP submitted that the MLC of Jeet has been proved on record as Ex.PW17/C. As the injuries have been inflicted with sharp edged weapon i.e. knives and sword as deposed by PW-4, PW-3, PW-6 and PW-4 on the various parts that shows that they had intention and knowledge that by inflicting multiple injuries with sharp edged weapon they would cause his death. All of them shall be held guilty for the offence punishable u/s 307 IPC. The accused also entered the Jhuggi of PW4 at night by breaking open the door and was also armed with knife at that time. Therefore, he has also committed the offence punishable under section 455/34 IPC. He along with his co-accused also obstructed the way of Vijay & Jeet near Khatta & did not allow them to move hence he has also committed the offence of wrongful restrain punishable u/s 341/34 IPC.
65. Ld. APP submitted that in this case motive has not been proved the witnesses have specifically stated that they are not able to find out why the accused persons including the present accused inflicted injuries on the person of Vijay and Jeet but in view of the evidence of the eye witnesses who fully corroborated each other not proving the motive is immaterial. Ld. APP in support of his arguments relied upon Judgment cited as Sucha Singh v. State of Punjab, AIR 2003 SC 3617 wherein it was held that:
State Vs. Pankaj @ Sandeep SC No.483/17 :: 38 ::
"12. Coming to the contention relating to the motive, it is not in dispute that Raghuraj Singh and Himmat Raj Singh died due to gun shot injuries. The reliable eye-witnesses have stated that there was previous enmity between them and litigation was going on between the accused-
Karan Singh and the complainant. Even in the absence of motive, in view of the assertion of eye- witnesses, particularly, Raj Singh, (PW-2), coupled with the medical evidence as seen from Exs. P1- P4, by the Doctor (PW-1), the case of the prosecution cannot be thrown out. In a catena of decisions, this Court has held that motive for doing a criminal act is generally a difficult area for the prosecution to prove since one cannot normally be seen into the mind of another. Motive is the emotion which impels a man to do a particular act. Even in the absence of specific evidence as to motive, in view of the fact that in the case on hand, two persons have been killed and one sustained injuries due to fire arms, the case of the prosecution cannot be thrown out on this ground."
66. Ld. APP further submitted that in this case no public person came forward to save the injured from the accused persons including the present accused as they had fear in mind and accused persons were also armed with knives and sword. Ld. APP submitted that fear is natural as lateron accused persons had murdered eye witnesses Jeet who witnessed the murder of Vijay and the FIR No:598/16 was registered at PS: Mahendra Park in this regard. Ld. APP submitted that the accused persons were six and they used the force, they were also armed with weapons i.e. knives and sword a deadly weapons attacked the persons i.e. Vijay, Jeet and Abhishek. They had given stab injuries to Jeet and Vijay and also caused injuries on the person of Abhishek. Ld. State Vs. Pankaj @ Sandeep SC No.483/17 :: 39 ::
Addl. PP submitted that all the witnesses are reliable and trustworthy. They have stood through the test of cross- examination. There is nothing on record to show that they had any reason to depose falsely against accused. The onus which was on prosecution has been fully discharged. It is prayed that accused be held guilty & convicted.
67. Ld. Defence counsel submitted that it is a false case. All the witnesses examined are interested witnesses. No independent witness has been joined. Accused was not present in Delhi and was in his village Ajamgarh. There was an externment order passed against him which is proved on record as Ex.DW1/A. Due to that externment order he started living with his uncle Kapil Dev in his village. Kapil Dev has been examined as DW-2. He has also deposed before the court that in May 2015 his father fell ill at that time Sandeep @ Pankaj came to the village and lived with him till the police apprehended him. Ld. Counsel submitted that as accused was not present here, therefore, there is no question of his committing the offence.
68. Ld. Counsel further submitted that the father of deceased Vijay Kumar i.e. Sh. Saligram PW-2, had not supported the prosecution case. The other witnesses Guddi examined as PW-1 was not present on the spot and has been introduced lateron in order to make out the case State Vs. Pankaj @ Sandeep SC No.483/17 :: 40 ::
against the accused persons. The accused is resident of the same jhuggie cluster, therefore they were also known to each other. She also stated that she has not seen the faces of the assailants on the spot as it was dark. Hence, the identification of accused by PW1 cannot be relied. According to Guddi there were many persons on the spot at that time but no public witness has been examined, which creates doubt about the truthfulness of the story of prosecution. According to her when she raised alarm Muni Lal came there and they removed the injured Vijay to the hospital but Muni Lal had also not been examined. Guddi is interested witness being mother of Vijay and hence no reliance on her statement can be placed. Ld. Counsel submitted that the injuries on the person of Vijay were also not on Vital parts as deposed by PW-23. The death is also after 2½ month of the incident that also due to septicemia which clearly shows that the death is not direct result of injuries caused on the person of accused but due to the negligence of doctors in providing treatment to Vijay and then the parents not taking care of injured. Ld. Counsel submitted that the onus was on the prosecution to prove that accused caused death of Vijay which the prosecution has failed.
69. Ld. Counsel further submitted that so far as the injury on the person of Jeet are concerned there is only one State Vs. Pankaj @ Sandeep SC No.483/17 :: 41 ::
independent witness examined that is PW-15 Dalip but he has not supported the prosecution case nor identified the accused as assailant who caused injuries on person of Jeet. All other witnesses PW-1, PW-3, PW4, PW6 and PW-24 are relatives of Jeet and are interested witnesses. They also does not know who inflicted injuries on the person of Jeet and in what manner. Ld. Counsel submitted that even the injuries on the person of Jeet were simple and hence no case u/s 307 IPC is made out. Similarly injuries on the person of Abhishek PW-24 is simple.
70. Sushila PW-22 does not say anything that any of the accused caused injury on her person. Beena, Abhishek, Pawan and Guddi allege that they removed injured to hospital and their clothes were also stained with blood but their blood stained clothes were not seized by the IO which again creates doubt about the truthfulness of the story of prosecution and also whether they were present on the spot as deposed by them.
71. Ld. Counsel further submitted that in the case of murder motive remains important but in present case prosecution has failed to show that the accused has any motive to murder Vijay or cause injury on the person of Jeet. Ld. Counsel submitted that in the absence of motive, non joining of independent witnesses despite the fact that many State Vs. Pankaj @ Sandeep SC No.483/17 :: 42 ::
public persons were present and the only public witness Dalip examined as PW-15 has not supported the prosecution case, the benefit be given to the accused persons and they be acquitted.
72. After hearing the arguments and going through the record I found that so far as PW-1 is concerned she is the mother of Vijay. Though Ld. Counsel alleged that she was not present there, but in her lengthy cross-examination by the defence no dent could be caused on the credibility of the witness. She has not only identified the accused but alos stated that he was armed with knife and they all attacked his son as well as Jeet. There is nothing on record that she is an interested witnesses or has any reason to depose falsely against the accused. Merely because she is the mother of the deceased does not make her an interested witness. She also stated that after assaulting her son accused Sandeep along with his co-accused started chasing Jeet. This testimony of PW-1 finds corroboration from the testimony of PW-3 Amar Kumar, PW-6 Chandan and PW-24 Abhishek. They also stated that accused was chasing Jeet along with his co-accused armed with knife. They all finds corroboration from the testimony of independent witness Dalip examined as PW-15 who deposed that he saw Jeet running and entering the Jhuggi of Beena, who was followed by 5-6 State Vs. Pankaj @ Sandeep SC No.483/17 :: 43 ::
persons armed with sword and knives and they also went towards the house of Beena PW-4. No doubt Dalip failed to identify those 5-6 persons whom he saw chasing Jeet. But the other 3 witnesses PW-3, PW-6 and PW-24 specifically stated that those 5-6 persons were Islam, Kishan, Suresh, Kalim, Saddaq and Sandeep. Sandeep is the present accused facing trial. Therefore, this testimony of PW-15 Dalip further strengthen the story that Jeet in order to save himself was running followed by the accused and his associates. Jeet entered the house of Beena as deposed by these witnesses corroborated by Beena examined as PW-4. The present accused along with co-accused broke open the door of the room situated on the first floor of Jhuggi of Beena. They all were armed with weapons at that time and assaulted Jeet. All the witnesses examined i.e. PW-3, PW-6, PW-24 fully supported the prosecution case that accused Sandeep was armed with knife while chasing. Beena also deposed that all the accused persons assaulted Jeet with knives and sword carried out by them. This testimony of Beena finds corroboration from the medical evidence i.e. MLC of Jeet according to MLC of Jeet Ex.PW17/C there was six injuries on the person of Jeet. All the witnesses examined stood through the test of cross-examination. There is also nothing on record to show that they have any reason to depose State Vs. Pankaj @ Sandeep SC No.483/17 :: 44 ::
falsely against the accused. It has already come on record that there was no animosity between deceased Vijay, injured Jeet and the accused or their family members. All the witnesses are some how related to the deceased or the injured but their testimony cannot be said to be an interested witness merely on this ground. Reliance in this regard can be placed on the judgment cited as Bur Singh Vs. State of Punjab, AIR 2009 SC 157, wherein it was held that:
"6. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established.
Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. The reliance can also be placed on the judgment cited as Dalip Singh and Ors. v. The State of Punjab, (AIR 1953 SC 364) wherein it has been held that:
"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 relation 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 State Vs. Pankaj @ Sandeep SC No.483/17 :: 45 ::
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 generalization. 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."
The testimony of eyewitnesses also cannot be discarded merely on the ground that they did not make any effort to save the victim as held by the Supreme Court in case cited as Sucha Singh v. State of Punjab, AIR 2003 SC 3617 "20. As observed by this Court in State of Rajasthan v. Teja Ram and ors., AIR 1999 Supreme Court 1776 : 1999(2) RCR(Crl.) 285 (SC) the over-insistence on witnesses having no relation with the victims often results in criminal justice going away (awry ?). When any incident happens in a dwelling house or nearby the most natural witnesses would be the inmates of that house. It would be unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 Supreme Court 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar State Vs. Pankaj @ Sandeep SC No.483/17 :: 46 ::
Srivastava, AIR 1992 Supreme Court 840 :
1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 Supreme Court 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
73. Keeping in view the testimony of all the witnesses i.e. PW-1 Guddi, PW-3 Amar Kumar, PW-4 Beena, PW-6 Chandan, PW-15 Dalip and PW-24 Abhishek. It is clear that accused Sandeep along with his co-accused assaulted Vijay due to which he died and he also caused injuries with sharp edged weapon on the person of Jeet. There is also statement of Abhishek that he was assaulted with the sword of Suresh due to which he sustained injury on his shoulder.
The MLC of Abhishek has been proved on record as Ex.PW17/D. The doctor has opined the nature of injury as simple and infact there was only an abrasion. There is no State Vs. Pankaj @ Sandeep SC No.483/17 :: 47 ::
evidence on record that injury was caused on the person of Abhishek by any sharp edged weapon. The onus was on the prosecution to prove this fact but prosecution has not been able to establish. Though PW-24 deposed that he was attacked by sword but the same is not corroborated by the medical evidence. Hence, in my opinion section 324 IPC is not attracted. As simple injury has been caused therefore, offence punishable u/s 323 r/w 34 IPC is only attracted.
74. Ld. Counsel has also argued that Vijay had not died due to injuries and died due to septicemia only. Record shows that Vijay died after 2 ½ months of sustaining injury.
PW-25 doctor has specifically stated that septicemia in this case has occurred due to injury on the person of Vijay and not due to any negligence in the treatment of taking care of the deceased. Therefore, it is clear that the death is due to the injuries caused on the person of Vijay and not due to any negligence in treatment. The opinion is clear that septicemia set in due to the injuries. Keeping in view this fact coupled with the Judgment of Hon'ble Supreme Court cited as Vineet Kumar Vs. State of U.P. AIR 2008 SC 780 and Jahir Khan Vs. State of NCT of Delhi 2016 Vol.233 DLT Page-1.
75. So far as the injury on the person of Jeet are concerned no doubt the injury on the person of Jeet are opined to be simple by the doctor but there are multiple State Vs. Pankaj @ Sandeep SC No.483/17 :: 48 ::
injuries caused with dangerous weapons i.e. sword and knives and from this fact itself it can be inferred that they not only had the intention but also the knowledge that by causing multiple injuries with these dangerous weapon on the person of Jeet they would cause his death. When the accused herein along with his co-accused entered the jhuggi of Beena, they were armed and also when they broke open the door of the jhuggi of Beena. It has also come in the testimony of PW-1 that accused along with his co-accused obstructed the way of Vijay and Jeet when they were going back from the public toilet and did not allow them to proceed in the direction in which they were having right to move. As discussed above all the witnesses are reliable and I found no reason to disbelieve or discredit their testimonies.
76. Ld. Counsel has also made submission that PW-1 had not seen the faces of the accused persons and therefore, no reliance can be placed on her testimony. I have gone through the statement of PW-1 she has specifically stated that as the accused persons were already known to her as they reside in the same jhuggi cluster, therefore, she recognized them and I do not find any fault in identification by PW-1 of the accused as section 9 Evidence Act does not require the identification on the basis of face only. It can also be on the basis of neck of the aspect. i.e. the body movement, gait, sound and other State Vs. Pankaj @ Sandeep SC No.483/17 :: 49 ::
body structure. Keeping in view all these facts in my opinion this contention has no merits.
77. Accused has also taken the plea of alibi that on the day of incident i.e. 03.07.2016 accused was in village with DW2 due to externment order. Defence has also examined DW-1 and DW-2. DW-1 proved and placed on record copy of externment order. In my opinion merely by externment order it does not mean that he was not in Delhi when all the eye witnesses examined specifically stated that accused was also involved and was present. Accused alleged that he was residing with his uncle Kapil Dev. Kapil Dev has also appeared in the witness box as PW-2 he stated that accused came to reside with him in May 2015 and continued to reside with him till police apprehended him from the village but he also does not say that on that particular day he was with him in the village. It is settled law that plea of alibi is to be proved and established like a fact which the defence has pleaded. Keeping in view the above discussion in my opinion the plea of alibi is not proved and established. Therefore no benefit can be given to the accused on this account.
78. Ld. Defence counsel submitted that Muni Lal, who according to PW-1 reached there on her raising alarm has not been examined and for that an adverse inference be drawn. I found that according to PW-1 Muni Lal reached State Vs. Pankaj @ Sandeep SC No.483/17 :: 50 ::
there only after the assailants had already fled away after causing injury to Vijay. Muni Lal is not witness of the incident. He only assisted PW-1 in removing Vijay to the hospital. Under the circumstances non examination of Muni Lal who assisted PW-1 in shifting Vijay to the hospital is not fatal as other witness i.e. PW-1 Guddi on this aspect had already been examined.
79. Ld. Defence counsel also contended that prosecution has failed to prove the motive. I fully agree with the defence counsel that prosecution has failed to establish motive in this case. The witnesses, when questioned, specifically stated that there was no animosity between the accused and the deceased and injured. It is well settled law that absence of motive does not help the accused persons if there is direct evidence pointing and establishing the guilt of the accused as laid down by the Hon'ble Supreme Court in the case titled as Prem Kumar Vs. State of Bihar, (1995) 3 SCC 228 & Dharnidhar Vs. State of U.P., (2010) 7 SCC 759. In view of the law settled by the Hon'ble Supreme Court in my opinion simply because prosecution has failed to prove motive for commission of offence the benefit cannot be given to accused when otherwise there is strong direct evidence against him.
80. In view of the above discussion as prosecution has State Vs. Pankaj @ Sandeep SC No.483/17 :: 51 ::
fully discharged its onus and proved guilt of the accused, I therefore, hold him guilty and convict him for the offence punishable u/s 302 r/w 34 IPC, 307 r/w 34 IPC, 341 r/w 34, 323 r/w 34 & 455 r/w 34 IPC. Accused is acquitted for the offence punishable u/s 324 r/w 34 IPC.
81. Let convict be heard on the quantum of sentence on Digitally signed by VIRENDER 26.02.2018. KUMAR VIRENDER KUMAR BANSAL Date: 2018.02.24 BANSAL 16:26:20 +0530 Announced in the open court (VIRENDER KUMAR BANSAL) today on 24.02.2018 ASJ/Pilot Court/North District Rohini Courts/New Delhi.
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