Delhi District Court
State vs Vinod @ Suraj @ Mota on 26 November, 2011
IN THE COURT OF DR. SUDHIR KUMAR JAIN; ADDITIONAL
SESSIONS JUDGE01 (OUTER), ROHINI, DELHI
Sessions Case No: 152/11
FIR No : 21/08
Police Station : Rohini
U/s : 302/34 IPC
State
Versus
1. Vinod @ Suraj @ Mota
S/o Shri Shiv Charan,
R/o K2/39, Lal Qtr.,
Sector4, Rohini, Delhi.
2. Dany @ Ravi,
S/o Shri Gopal,
R/o C1/10, Lal Qtr.,
Sector4, Rohini, Delhi.
3. Vinod @ Ratania,
S/o Shri Prem Singh,
R/o P1/40, Lal Qtr.,
Sector4, Rohini, Delhi.
4. Vicky,
S/o Shri Ramji Lal,
R/o A1/10, Lal Qtr.,
State V Vinod
FIR no. 21/08
PS Rohini Page No. 1 of 33
Sector4, Rohini, Delhi. ... Accused
Date of Institution : 25.04.2008
Date of Decision: 26.11.2011
JUDGMENT
Suman and Sunil were residing at K Block, Lal Janta DDA Flats, Vijay Vihar, Delhi. Babli is one of the cousin of Suman. Babli was residing at RBlock, Lal Janta DDA Flats, Vijay Vihar, Delhi. Babli was not well and due to this reason Sunil, Suman along with Deepak on 9.1.08 had gone to the house of Babli. Suman was preparing food in the kitchen. Ravi came upstairs and call Sunil by staing that Vicky, Vinod @ Suraj @ Mota and Vinod @ Ratania were calling Sunil down stairs. Sunil initially refused to go down stairs as he had a quarrel with Vinod @ Suraj @ Mota on previous occasions but on the insistence of Ravi, he had gone down stairs. Sunil was attached by Vinod @ Suraj @ Mota, Vinod @ Ratania, Dany @ Ravi and Ravi and they inflicted blows from a bear bottle, bricks etc. Sunil ran towards nalla to save himself but Vicky stopped him and thereafter he was again beaten by the said persons. The police was informed.
2. HC Raj Kumar and Ct. Balwan Singh posted at Police Post Vijay State V Vinod FIR no. 21/08 PS Rohini Page No. 2 of 33 Vihar were on patrolling duty and after receipt of information that some boys were beating one boy on road from Vijay Vihar to Sultanpuri near Shamshan ghat and also stabbed him near Shamshan Ghat reached there but none was found at the informed place. They returned back and reached near IBlock, Lal Qtr., Vijay Vihar at the corner of Som Bazar Road. They saw that 23 boys who were standing their hide themselves after seeing the police personals. Sunil was found lying there in injured condition. ASI Sudama Sharma and Ct. Bhuwan Chand after receipt of DD no.38 also reached there. Sunil in injured condition was removed to BSA Hospital. ASI Sudama went to BSA Hospital and obtained the MLC of Sunil who was declared unfit for statement due to head injuries. Sunil was referred to RML Hospital. ASI Sudama made endorsement on DD no.38A and sent Ct. Bhuwan for registration of FIR . FIR bearing no. 21/08 u/s 307 IPC was got registered. ASI Sudama also went to the hospital where the statement of Suman, wife of Sunil was recorded. The exhibits were collected. ASI Sudama collected other formalities of investigation.
3. Sunil (hereinafter referred to as "the deceased") had expired on 12.1.08. The information was transmitted vide DD no.6. Inspector Raj State V Vinod FIR no. 21/08 PS Rohini Page No. 3 of 33 Singh also reached at RML Hopsital and was assigned with the further investigation. The dead body was removed to SGM Hospital for post mortem. The post mortem was conducted by Dr. V.K. Jha who opined the cause of death as comma as a result of head injuries consequent to blunt force diverted upon head by other party.
4. Inspector Raj Singh during the investigation seized exhibits, arrested Vinod @ Suraj @ Mota on 16.108, Dany @ Ravi on 10.2.08, Vinod @ Ratania on 15.2.08 and Vicky on 4.3.08. Ravi could not be arrested. Inspector Raj Singh after completion of investigation charge sheeted the accused for the offence u/s 302/34 IPC. The charge sheet was submitted before the court of concerned Metropolitan Magistrate. The accused Vinod @ Suraj @ Mota, Dany @ Ravi, Vinod @ Ratania and Vicky were put to trial.
5. The accused were supplied with the copies of charge sheet along with annexed documents in compliance of Section 207 Cr.P.C. The case was committed to the court of Sessions vide committal order dated 21.4.08 and thereafter assigned to Sessions court for trial in accordance with law.
6. The charge for the offence punishable u/s 302/34 IPC was framed against accused Vinod @ Suraj @ Mota, Dany @ Ravi, Vinod @ Ratania State V Vinod FIR no. 21/08 PS Rohini Page No. 4 of 33 and Vicky on the allegations that on 9.1.08 at Shamshan Ghat Road, Lal Quarters, Vijay Vihar, PhaseII, Delhi within the jurisdiction of PS Rohini all of them in furtherance of their common intention along with Ravi (since not arrested) committed the murder of the deceased. The accused pleaded not guilty and claimed trial.
7. The prosecution examined Suman as PW1; Sanjay as PW2; Shravan as PW3; Santosh as PW4; Deepak as PW5; HC Randhir Singh as PW6; Babli as PW7; Ram Sahai as PW8; SI Manohar Lal as PW9; HC Raj Kumar as PW10; Dr. Bhavana Jain as PW11; Ct. Bhuvan as PW12; SI Mahabir Singh as PW13; Dr.V.K. Jha as PW14; HC Raghubir Singh as PW15; ASI Sudama Sharma as PW16; Ct. Dilbagh Singh as PW17; HC Ram Narayan Singh as PW18; Ct. Mohd. Qasim as PW19; HC Shiv Kumar as PW20; Sanjay Mehndiratta as PW21; HC Prahlad Singh as PW22; HC Baljeet Singh as PW23; HC Ashok Kumar as PW24; HC Jagdish as PW25; Inspector Raj Singh as PW26; and Dr. Humam Nisar as PW27.
PW1 Suman was the wife of the deceased and one of the eye witness. PW2 Sanjay participated in the investigation on 16.1.08 at the time of recovery of broken bottle of bear at the instance of the accused State V Vinod FIR no. 21/08 PS Rohini Page No. 5 of 33 Vinod @ Suraj @ Mota. PW3 Shravan took the photographs of the spot at the instance of ASI Sudama Sharma. PW4 Santosh, brother of the deceased, is also one of the eye witness. PW5 Deepak accompanied the deceased and Suman to the house of Babli on 9.1.08 and also one of the eye witness. PW6 HC Randhir Singh being the duty officer got registered the FIR on the basis of rukka sent by ASI Sudama Sharma. PW7 Babli is one of the relative of PW1 Suman. PW8 Ram Sahai is the father of the deceased. PW9 SI Manohar Lal being the draftsman prepared the scaled site plan. PW10 HC Raj Kumar on the intervening night of 9/10.1.08 was on patrolling duty and reached I Block, Lal Qtr., Vijay Vihar on the corner of Som Bazar Road where the deceased was lying in injured condition. PW11 Dr. Bhavana Jain on 9.1.08 medically examined the deceased when he was brought to BSA Hospital. PW16 ASI Sudama Sharma and PW12 Ct. Bhuvan after receipt of DD no.38 went to the place at the corner of Som Bazar, Lal Qtr., I Block, Vijay Vihar where the deceased was lying in injured condition and thereafter they removed the deceased in injured condition to the hospital. PW16 ASI Sudama Sharma also prepared rukka and conducted the initial investigation. PW13 SI Mahabir Singh and PW23 HC Baljeet Singh on State V Vinod FIR no. 21/08 PS Rohini Page No. 6 of 33 16.1.08 participated in the investigation at the time of arrest of the accused Vinod @ Suraj @ Mota and also at the time of recovery of broken bear bottle stated to be used in the commission of offence at the instance of accused Vinod @ Suraj @ Mota and also in the recovery of blood stained clothes which were worn by accused Vinod @ Suraj @ Mota at the time of commission of offence. PW14 Dr.V.K. Jha conducted the post mortem on the dead body of the deceased on 12.1.08. PW15 HC Raghubir Singh recorded the information regarding the incident in PCR form. PW17 Ct. Dilbagh Singh recorded the DD no.38A. PW18 HC Ram Narayan Singh took the exhibits from MHC (M) for seeking opinion of Dr. V.K. Jha regarding the weapon of offence. PW19 Ct. Mohd. Qasim participated in the investigation at the time of post mortem on the dead body of the deceased on 12.1.08. PW20 HC Shiv Kumar participated in the investigation at the time of arrest of accused Dany @ Ravi and on 4.3.08 at the time of arrest of accused Vicky. PW21 Sanjay Mehndiratta on 9.1.08 being the Assistant Ambulance Officer in CATS removed the injured to BSA Hospital. PW22 HC Prahlad Singh recorded the DD no.6. PW24 HC Ashok Kumar participated in the investigation at the time of arrest of accused Vinod @ Ravi on 15.2.08 and also on 22.2.08 deposited the State V Vinod FIR no. 21/08 PS Rohini Page No. 7 of 33 exhibits at FSL Rohini. PW25 HC Jagdish being the MHC (M) was entrusted with the case property. PW26 Inspector Raj Singh being the Investigating Officer conducted the investigation. PW27 Dr. Humam Nisar prepared the death summary of the deceased.
8. The prosecution proved the pointing out memo of the place of occurrence prepared at the instance of the accused Vinod @ Suraj @ Mota as ExPW2/A; seizure memo of one broken bear bottle as ExPW2/B; site plan of the place of recovery of broken bear bottle as ExPW2/C; seizure memo of clothes stated to be worn by the accused Vinod @ Suraj @ Mota as ExPW2/D; site plan of the place of occurrence as ExPW2/E; photographs and negatives taken by PW3 Shravan as ExPW3/A and ExPW3/B; computerized copy of FIR as ExPW6/A; endorsement on rukka as ExPW6/B; seizure memo of clothes of the deceased collected after medical examination of RML Hospital as ExPW8/A; identification memo of dead body of the deceased executed by PW8 Ram Sahai as ExPW8/B; receipt of dead body of the deceased executed after post mortem as ExPW8/C; scaled site plan as ExPW9/A; MLC of the deceased as ExPW11/A; seizure memo of the pieces of glass collected from the spot as ExPW12/A; disclosure statement of the accused Vinod @ Suraj @ Mota as ExPW13/A and his arrest and personal search memos as ExPW13/B State V Vinod FIR no. 21/08 PS Rohini Page No. 8 of 33 and ExPW13/C; Post Mortem Report as ExPW14/A; inquest papers as ExPW14/B1 to ExPW14/B8; PCR Form as ExPW15/A; Rukka as ExPW16/A; statement of PW Suman recorded by PW16 ASI Sudama Sharma as ExPW16/B; DD no.6 as ExPW16/D; seizure memo of exhibits collected after post mortem of the dead body of the deceased as ExPW16/E; DD no.38 as ExPW16/A; arrest memo, personal search memo and disclosure statement of the accused Dany @ Ravi as ExPW20/A, ExPW20/B and ExPW20/C; pointing out memo of place of incident prepared at the instance of accused Dany @ Ravi as ExPW20/D; arrest memo, personal search memo and disclosure statement of the accused Vicky as ExPW20/E, ExPW2/F and ExPW20/G; pointing out memo of place of incident prepared at the instance of the accused Vicky as ExPW20/H; photocopy of the call for calling CATS Ambulance as ExPW21/A; arrest memo, personal search memo and disclosure statement of the accused Vinod @ Ratania as ExPW23/A, ExPW23/B and ExPW23/C; pointing out memo of place of occurrence prepared at the instance of the accused Vinod @ Ratania as ExPW23/D; relevant entries in register no.19 and photocopies of road certificate as ExPW25/A to ExPW25/F; death report of the deceased as ExPW26/A; application State V Vinod FIR no. 21/08 PS Rohini Page No. 9 of 33 moved by PW26 Inspector Raj Singh for seeking the opinion of weapon of offence as ExPW26/B; seizure memo of photographs taken by PW3 Shravan as ExPW26/C; PCR Form as ExPW26/D; FSL report as ExPX, ExPY and ExPZ. PWs also identified the exhibits collected during the investigation. The prosecution evidence was closed vide order dated 18.7.2011.
9. The respective statements of accused Vinod @ Suraj @ Mota, Dany @ Ravi, Vinod @ Ratania and Vicky are recorded u/s 313 Cr.P.C. wherein they pleaded innocence and denied the incriminating evidence. The accused preferred to lead defence evidence and examined Om Parkash as DW1. The defence evidence was closed vide order dated 12.9.2011.
10. Shri R.A. Yadav, APP for the State and Shri A.P. Singh, Advocate for the accused heard. The defence counsel also submitted the written arguments. Record perused.
11. APP argued that the prosecution has proved its case by leading appropriate evidences to prove that the accused in furtherance of their common intention along with Ravi who could not be arrested committed murder of the deceased on 9.1.08. APP relied upon the testimony of PW4 Santosh brother of the deceased, PW16 ASI Sudama Sharma who State V Vinod FIR no. 21/08 PS Rohini Page No. 10 of 33 conducted initial investigation, and Investigating Officer PW26 Inspector Raj Singh. APP relied on FSL Reports ExPX to ExPZ, and Post Mortem Report ExPW14/A. The defence counsel argued that the material witnesses examined by the prosecution have turned hostile and the accused could not be convicted solely on the basis of testimony of PW4 Satish which is also full of contradictions and argued that the accused are liable to be acquitted.
12. What is reflecting from the quality and quantity of evidence led by the prosecution that on 9.1.08 the deceased along with PW1 Suman and PW5 Deepak had gone to the house of PW7 Babli who is one of the relative of PW1 Suman and from the house of PW7 Babli the deceased was called down stairs by Ravi who could not be arrested and when the deceased came down then all the accused along with Ravi (who could not be arrested) committed the murder of the deceased by inflicting injuries from broken bear bottle etc. The prosecution to prove its case has examined eye witnesses which are PW1 Suman, PW4 Santosh, PW5 Deepak and PW7 Babli who turned hostile and did not support the case of the prosecution. PW4 Santosh who is one of the brother of the deceased State V Vinod FIR no. 21/08 PS Rohini Page No. 11 of 33 has supported the case of the prosecution. PW1 Suman deposed that she was preparing meal in the house of PW7 Babli then suddenly heard a noise of the children who were shouting that "Sunil Bhai Ki Ladai Ho Rahi Hai Neeche". PW1 Suman further deposed that she went down stairs and saw crowd and thereafter she went to police station for lodging the report but was informed that the police have already been sent to the spot. PW1 Suman also deposed about the removing of the deceased to the hospital and where the deceased in injured condition has expired. PW1 Suman deposed that she did not see as to who were quarreling with the deceased nor she knew as to who caused injuries to the deceased. PW1 Suman was cross examined at length by the APP but during the cross examination PW1 Suman only admitted that PW5 Deepak, one of the friend of the deceased, had also accompanied to them to the house of PW1 Babli and after seeing the entire incident she had gone to police station Vijay Vihar and called her father in law PW8 Ram Sahai. PW1 Suman denied all the suggestions given by the APP regarding the incident. The testimony of PW1 Suman, however, proved that on the day of incident, she had gone to the house of PW7 Babli along with the deceased and PW5 Deepak and at the ground floor the deceased had quarreled with some one.
13. PW5 Deepak turned hostile and did not support the case of the State V Vinod FIR no. 21/08 PS Rohini Page No. 12 of 33 prosecution. PW5 Deepak deposed that on the day of incident, he along with the deceased and PW1 Suman had gone to the house of PW7 Babli and found all the accused were present in the locality and were consuming bear. As per the testimony of PW5 Deepak, the deceased was also with them but the PW5 Deepak had left as he was not in the habit of drinking. PW5 Deepak subsequently came to know that a quarrel took place and due to this reason, he came back at the spot and thereafter the deceased was removed to hospital where he died subsequently. PW5 Deepak deposed that he cannot depose about who has caused the injuries to the deceased. PW5 Deepak also cross examined by the APP and during the cross examination admitted that he had gone to the house of the deceased on 9.1.08 but denied the suggestions given by the APP relating to the incident and how the injuries were inflicted by the accused persons. PW7 Babli also turned hostile but admitted that the deceased had a big quarrel with some of the boys of the area. PW7 Babli deposed that she did not know who had beaten the deceased as he did not see them. PW7 Babli was cross examined by APP and during cross examination denied the suggestions given by the APP relating to the incident. What is reflecting from the testimony of PW7 Babli that the deceased and the PW1 Suman State V Vinod FIR no. 21/08 PS Rohini Page No. 13 of 33 on the day of incident had came to her house and after some time the deceased had a quarrel with some boys of the area. Although the PW1 Suman, PW5 Deepak and PW7 Babli have turned hostile but their respective testimonies proved that i) on 9.1.08 the deceased along with PW1 and PW5 Deepak had gone to the house of PW7 Babli situated in Lal Quarter in the area of Vijay Vihar, Rohini; ii) the accused Vinod @ Suraj @ Mota, Dany @ Ravi, Vinod @ Ratania and Vicky were present in the locality and were consuming bear; iii) the deceased had a quarrel with some boys of the area.
14. PW4 Santosh supported the case of the prosecution. PW4 Santosh used to drive auto rickshaw and on the day of incident after dropping a passenger at Rithala was coming back at about 8.30 pm and reached near the house of the deceased situated at K Block, Lal Janta DDA Flats, Vijay Vihar but the premises was found locked. Thereafter PW4 Santosh deposed that when he reached to the house of PW7 Babli then he saw that the accused Vinod @ Ratania, Dany @ Ravi, Vinod @ Suraj @ Mota and Vicky along with Ravi (who has not arrested) were beating the deceased with bricks and empty bear bottle. PW4 Santosh further deposed that the accused Vinod @ Suraj @ Mota was having bear bottle with which he was inflicting blows to the deceased and the remaining three State V Vinod FIR no. 21/08 PS Rohini Page No. 14 of 33 accused were beating him with bricks and fist blows. PW4 Santosh tried to intervene to save the deceased. As per the testimony of PW4 Santosh, PW1 Suman and PW5 Deepak also tried to save the deceased. PW4 Santosh deposed that due to the intervention the deceased had opportunity to escape and rushed towards the nalla by the side of Shamshan Ghat Road but from the front side the deceased was stopped by accused Vicky and thereafter the accused Vicky gave a blow with a bottle on the head of the deceased. As per the testimony of PW4 Santosh, the accused Vicky also uttered the word that he had settle the previous score with the deceased. PW4 Santosh removed the injured to the hospital and at RML Hospital the injured has expired. As per the prosecution, the PW4 Santosh also participated in the investigation at the time of preparation of site plan ExPW16/C, seizure of pieces of glass collected from the spot vide seizure memo ExPW12/A, but PW4 Santosh denied the said facts. PW4 Santosh also mentioned the day of incident as 9th day of fourth month of the year 2004. PW4 Santosh was cross examined by the defence counsel wherein deposed about the reporting of matter to the police regarding the previous enmity between the deceased and the accused.
15. The testimony of PW4 Santosh is required to be scrutinized with State V Vinod FIR no. 21/08 PS Rohini Page No. 15 of 33 great care and caution particularly when other witnesses i.e PW1 Suman, PW5 Deepak and PW7 Babli have turned hostile and did not support the case of the prosecution. PW4 Santosh also did not depose correctly about the date of incident. PW4 Santosh also did not depose about the preparation of site plan ExPW16/C and seizure memo of pieces of glass ExPW12/A.
16. Regarding the date of incident as 9.1.08 as already discussed that PW5 Deepak during cross examination conducted by the APP admitted that on 9.1.08 he along with the deceased and PW1 Suman had gone to the house of PW7 Babli. PW10 HC Raj Kumar also deposed that in the intervening night of 9/10.1.08 he was on patrolling duty along with Ct. Balwan Singh and after being informed about the incident on wireless at about 9 pm he reached near Shamshan ghat and from there he along with Ct. Balwan reached near I Block Lal Quarters, Vijay Vihar where they found one boy i.e the deceased was lying there in injured condition. The testimony of PW10 HC Raj Kumar also proved that the incident has happened on 9.1.08. The prosecution also examined two other material witnesses PW16 ASI Sudama Sharma and PW12 Ct. Bhuwan Chand who after receipt of DD no.38 reached at informed place and came to State V Vinod FIR no. 21/08 PS Rohini Page No. 16 of 33 know through PW10 HC Raj Kumar and Ct. Balwan Singh that the deceased in injured condition was lying near Som Bazar Road. As per their testimonies the incident occurred on 9.1.08. The DD no.38 ExPW16/A was also recorded by PW17 Ct. Dilbagh Singh on 9.1.08. The prosecution as such proved that the incident happened on 9.1.08. If the PW4 Santosh has mentioned the wrong date of incident in the deposition, it is not fatal to the case of the prosecution in the light of other evidences led by the prosecution.
17. As per the testimony of PW4 Santosh he reached at the spot at about 8.30 pm. The defence counsel argued that the testimony of PW4 Santosh appears to be the testimony of interested witness and cannot be relied upon and it is not proved that PW4 Santosh was present at the spot at the time of incident particularly when other eye witnesses turned hostile. It is correct that the eye witnesses PW1 Suman and PW5 Deepak already turned hostile and did not support the case of the prosecution but if the said witnesses turned hostile it does not mean that the testimony of PW4 Santosh cannot be relied upon . It is inspiring confidence and trustworthy. It is the quality of evidence which matters in criminal trial and not the quantity of evidence.
State V Vinod FIR no. 21/08 PS Rohini Page No. 17 of 33
18. PW16 ASI Sudama Sharma deposed about the receipt of DD no. 38 ExPW16/A at about 8.15 pm. PW10 HC Raj Kumar also deposed about the receipt of information on wireless at about 9 pm. The testimonies of PW10 HC Raj Kumar and PW16 ASI Sudama Sharma are corroborating the testimony of PW4 Santosh about the approximate time of the incident. PW16 ASI Sudama Sharma also brought the PW4 Santosh back to the spot which was identified by the PW4 Santosh. PW16 ASI Sudama Sharma prepared the site plan ExPW16/C at the instance of PW4 Santosh and also lifted the pieces of the glass from the spot vide seizure memo ExPW12/A in presence of PW4 Santosh. Although the PW4 Santosh did not admit the preparation of seizure memo ExPW12/A and site plan ExPW16/C by PW16 ASI Sudama Sharma in his present but the testimony of PW16 ASI Sudama Sharma cannot be rejected on this ground. PW16 ASI Sudama Sharma was also accompanied by PW12 Ct. Bhuwan who also corroborated the testimony of PW16 ASI Sudama Sharma. The testimony of PW4 Santosh also appearing to be natural and narrative of all facts as the said facts were witnessed by PW4 Santosh. Even the PW4 Santosh was not cross examined by the defence counsel regarding that PW4 was not present at State V Vinod FIR no. 21/08 PS Rohini Page No. 18 of 33 the spot at the time of incident. The testimony of PW4, after considering all facts and circumstance, can be safely relied upon even other eye witnesses turned hostile and did not support the case of the prosecution completely. The testimony of PW4 Santosh is natural, credible and narrative of all material facts. There is nothing in the cross examination of PW4 Santosh which can dilute the testimony of PW4. The testimony of PW4 Santosh proved the following facts : i. on the date and time of the incident the accused Vinod @ Suraj @ Mota, Dany @ Ravi, Vinod @ Ratania and Vicky along with Ravi (who could not be arrested) had beaten the deceased with bear bottle and bricks;
ii. The accused Vinod @ Suraj @ Mota has inflicted injuries by bear bottle while other accused inflicted blows; iii. due to intervention of PW1 Suman, PW4 Santosh, PW5 Deepak and PW7 Babli the deceased had run away towards nalla but again caught hold by the accused Vicky and thereafter the accused Vicky gave blow with the bottle on the head of the deceased.
19. As per the prosecution, the injuries were inflicted to the deceased by broken bear bottle. It is also reflected from the testimony of PW5 Deepak that the accused were consuming bear in the locality where the deceased had gone on the day and time of incident. The broken glass of the bear bottle were also seized vide seizure memo ExPW12/A by PW16 State V Vinod FIR no. 21/08 PS Rohini Page No. 19 of 33 ASI Sudama Sharma who conducted the initial investigation after receipt of DD no.38 ExPW16/A. This fact is corroborated by the testimony of PW12 Ct. Bhuwan Chand. It proves that the bear bottle was used mainly as weapon of offence.
20. PW26 Inspector Raj Singh was assigned with the investigation when the deceased has died on 12.8.08 at RML Hospital. PW26 Inspector Raj Singh on 16.1.08 arrested the accused Vinod @ Suraj @ Mota after being discharged from BSA Hospital vide arrest memo ExPW13/B and recorded his disclosure statement ExPW13/A. The pointing out memo ExPW2/A regarding the place of occurrence was also prepared at the instance of accused Vinod @ Suraj @ Mota. What is important that in pursuance of disclosure statement ExPW13/A the accused Vinod @ Suraj @ Mota got recovered one broken bear bottle from the drain pipe which was stated to be used in commission of offence and seized vide seizure memo ExPW2/B. The recovery of bear bottle ExP5 was effected in presence of PW2 Sanjay, brother of the deceased. PW2 Sanjay deposed that on 16.1.08 at about 7.30 pm he had gone to the house of PW7 Babli where he saw the accused Vinod @ Suraj @ Mota in the police custody. PW2 Sanjay has joined the investigation. PW2 Sanjay deposed that State V Vinod FIR no. 21/08 PS Rohini Page No. 20 of 33 accused Vinod @ Suraj @ Mota pointed towards the place of occurrence vide memo ExPW2/A and also pointed out one broken bottle of bear ExP5 which was picked from dry drain/nali and sealed in a cloth parcel and seized vide seizure memo ExPW2/B. The respective testimony of PW2 Sanjay, PW26 Inspector Raj Singh and PW13 SI Mahabir Singh who accompanied PW26 Inspector Raj Singh at that time proved that the broken bear bottle ExP5 having blood stains were recovered at the instance of accused Vinod @ Suraj @ Mota from a drain and was seized vide seizure memo ExPW2/B.
21. The prosecution to prove that the bear bottle ExP5 was used in inflicting the injuries to the deceased examined PW14 Dr. V.K. Jha who conducted the Post Mortem on the dead body of the deceased on 12.1.08. PW14 Dr. V.K. Jha after Post Mortem found following injuries on the dead body of the deceased : i. sutured wound on right pinnae.
ii. sutured wound on right ring finger and right middle finger in middle phalanges.
iii. sutured wound on forehead 3 in numbers.
iv. craniotomy wound over left parieto temporal region. v. healed abrasion on right leg on front of leg below right knee.
State V Vinod FIR no. 21/08 PS Rohini Page No. 21 of 33
22. PW14 Dr. V.K. Jha opined the cause of death as comma as a result of head injury consequent to blunt force diverted upon head by other party. The Post Mortem Report ExPW14/A as such corroborated the testimony of PW4 Santosh that the injuries were inflicted on the head of the deceased by the accused. All the injuries were opined to be ante mortem in nature. The injury no.4 was found to be sufficient to cause death in oridinary course of nature.
23. On 28.1.08 PW26 Inspector Raj Singh filed an application ExPW26/B for seeking subsequent opinion on the weapon of offence and vide opinion ExPw14/C, PW14 Dr.V.K. Jha opined that the injury no.1, 2, 3 and 5 as mentioned in Post Mortem Report ExPW14/A could have been caused by the bottle ExP5. The Post Mortem Report ExPW14/A and opinion ExPW14/C as such corroborated the testimony of PW4 Santosh that the injuries were inflicted by the bear bottle mainly on the head of the deceased and the bear bottle ExP5 recovered at the instance of the accused Vinod @ Suraj @ Mota on 16.1.08 ExP5 was the same bear bottle by which injuries were inflicted on the head of the deceased.
24. During the investigation, PW16 ASI Sudama Sharma seized the clothes ExP1 to ExP3 of the deceased soaked with blood vide seizure State V Vinod FIR no. 21/08 PS Rohini Page No. 22 of 33 memo ExPW8/A. PW26 Inspector Raj Singh also seized blood gauze piece vide seizure memo ExPW16/E. On 16.1.08 the blood stained clothes of the accused Vinod @ Suraj @ Mota ExP1 to ExP4 were also seized from his house bearing no.D1/19 Lal Quarter vide seizure memo ExPW2/D. The bear bottle ExP5 was having blood stains was also seized vide seizure memo ExPW2/B. The said exhibits were sent to FSL for examination. The said exhibits were examined by Ms. Shashi Bala, Sr.Scientific Assistant, FSL vide reports ExPX and ExPY on 4.9.09. As per report ExPX the blood was detected on the said exhibits. As per the serological report ExPY the species of origin of blood was human. The blood group of the deceased was 'O' as reflecting from the serological report in respect of blood stained gauze collected after the Post Mortem on the dead body of the deceased vide seizure memo ExPW16/E. The blood of O group was also found on the clothes of the accused Vinod @ Suraj @ Mota which were collected during the investigation and seized vide seizure memo ExP2/DX. It is not explained by the accused Vinod @ Suraj @ Mota how the blood of the deceased came on his clothes particularly when the prosecution has able to prove the recovery of blood stained clothes of the accused Vinod @ Suraj @ Mota from his residence. State V Vinod FIR no. 21/08 PS Rohini Page No. 23 of 33
25. Another important piece of evidence led by the prosecution is the forensic report dated 27.8.08 ExPZ prepared by Parshuram, Sr. Scientific Assistant (Physics), FSL Rohini. PW16 ASI Sudama Sharma seized the pieces of glass bottle from the spot after converting into a pulunda sealed with the seal of SS vide seizure memo ExPW12/A. The bottle ExP5 was also recovered at the instance of the accused Vinod @ Suraj @ Mota on 16.1.08 and seized vide seizure memo ExPW2/B. The broken bottle ExP5 and the pieces of glass collected from the spot by PW16 ASI Sudama Sharma were sent for analysis. Vide report ExPX it was opined that both are similar in respect of their relative density, thickness, refractive index, colour, texture, UV fluorescence and elemental profile. It also proved the authenticity of the plea of the prosecution that bottle ExP5 was used for the commission of offence.
26. The prosecution has also examined the police officials who either participated in the investigation or remained attached with the investigation and also proved the necessary documents prepared during the investigation. The respective testimonies of PWs examined by the prosecution are cogent and corroborating each other and there is nothing to disbelieve the testimonies of PWs examined by the prosecution in support State V Vinod FIR no. 21/08 PS Rohini Page No. 24 of 33 of its case particularly the testimony of PW4 Santosh whose testimony can be relied upon safely even the other eye witnesses have turned hostile. The prosecution has proved that at the time of incident all the accused were together and accused Vinod @ Suraj @ Mota inflicted the injuries to the deceased by using a bear bottle ExP5 and other accused also inflicted injuries. The prosecution has proved that on 1.9.08 at about 7.15 pm near Shamshan Ghat Road, Lal Quarters Vijay Vihar, PhaseII all the accused in furtherance of their common intention inflicted injuries to the deceased by using a bear bottle ExP5 and as a result of which the deceased has expired on 12.1.08.
27. Accordingly all the accused are convicted for offence u/s 302/34 IPC.
Announced in open court (Dr.Sudhir Kumar Jain) on 26.11.2011 ASJ01 (Outer) Rohini, Delhi. State V Vinod FIR no. 21/08 PS Rohini Page No. 25 of 33
IN THE COURT OF DR. SUDHIR KUMAR JAIN; ADDITIONAL SESSIONS JUDGE01 (OUTER), ROHINI, DELHI Sessions Case No: 152/11 FIR No : 21/08 Police Station : Rohini U/s : 302/34 IPC State Versus
1. Vinod @ Suraj @ Mota S/o Shri Shiv Charan, R/o K2/39, Lal Qtr., Sector4, Rohini, Delhi.
2. Dany @ Ravi, S/o Shri Gopal, R/o C1/10, Lal Qtr., Sector4, Rohini, Delhi.
3. Vinod @ Ratania, S/o Shri Prem Singh, R/o P1/40, Lal Qtr., Sector4, Rohini, Delhi.
4. Vicky, S/o Shri Ramji Lal, R/o A1/10, Lal Qtr., State V Vinod FIR no. 21/08 PS Rohini Page No. 26 of 33 Sector4, Rohini, Delhi. ... Convicts ORDER ON SENTENCE Shri R.A. Yadav, APP for the State and Shri A.P. Singh, Advocate for convicts Vinod @ Suraj @ Mota, Dany @ Ravi, Vinod @ Ratania and Vicky heard on quantum of sentence. Record perused.
2. The convict Vinod @ Suraj @ Mota is stated to be aged about 25 years, unmarried and was the sole bread earner of the family comprising of his father, younger brother and his mother has already been expired. The convict Vinod @ Ratania is stated to be aged about 24 years, unmarried and his family comprising mother and two sisters and his father has already been expired. The convict Vicky is stated to be aged about 23 years, unmarried and his family is comprising of parents and younger brother and sister. The convict Dany @ Ravi is stated to be aged about 23 years, unmarried and his family is comprising mother and three sisters and his father has already been expired. The convicts were stated to be the only bread earners for their families and were doing the petty business of selling maps and calenders. The antecedents of the convicts are stated to be clear. They are not the previous convicts. The convicts are stated to be in JC since 2008. Under these circumstances, the convicts and their State V Vinod FIR no. 21/08 PS Rohini Page No. 27 of 33 counsel prayed for a lenient view.
APP stated that the convicts have committed the murder of the deceased Sunil by inflicting blows by bear bottle ExP5 and did not allow him to run away from the spot. APP stated that under given facts and circumstances of the case and the manner in which the offence was committed, the convicts be awarded death penalty.
3. The nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts for awarding sentence. It is the duty of the court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
4. Section 302 IPC prescribed death or life imprisonment as a penalty for murder. The Indian Penal Code has under gone multi dimensional changes for the last three decades which indicates that the Parliament has taken note of contemporary criminological thought and movement. The Indian Penal Code reflects a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354 (3) Cr.P.C. It State V Vinod FIR no. 21/08 PS Rohini Page No. 28 of 33 indicates that reformation and rehabilitation of offenders and no deterrence, are now among the foremost objects of the administration of criminal justice in the country. Section 354(3) Cr.P.C. is a part of emerging picture of acceptance by the legislature of the new trends in criminology. The personality of a offender revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. The former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the sentence prescribed in the Section 302 IPC.
5. In case Machhi Singh V State of Punjab, AIR 1983 SC 957, the guidelines are laid down which are to be kept in view, considering the question whether the case belongs to the rarest of rare category. It was observed that the following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted:--
State V Vinod FIR no. 21/08 PS Rohini Page No. 29 of 33
a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
6. In case Bachan Singh V State of Punjab, AIR 1980 SC 898 it was observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
7. In case Machhi Singh, the guidelines were culled out which are to be applied to the facts of each individual case where the question of imposition of death sentence arises. The following preposition emerges from the Bachan Singh's case: i. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. ii. Before opting for the death penalty the circumstances of the 'offender' also required to be taken into consideration along with the circumstances of the 'crime'.
iii.Life imprisonment is the rule and death sentence is State V Vinod FIR no. 21/08 PS Rohini Page No. 30 of 33 an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
iv.A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
8. The convicts have committed the murder of the deceased by inflicting blows from a bear bottle. It was a preplanned murder as the deceased was called from the house of PW7 Babli by one of the convict down stairs where other convicts were waiting for the deceased. The deceased was not allowed by the convicts to save himself as due to the intervention of the family members when the deceased tried to run away from the spot, he was stopped by one of the convict. The multiple injuries were received by the deceased. The deceased was a young boy and having wife and a child. The convicts have deprived the family members of the State V Vinod FIR no. 21/08 PS Rohini Page No. 31 of 33 deceased from his love and affection. The convicts are aged about 25 years approximately and they have to share the responsibility of their respective family. The convicts belonged to the lower strata of the society and were doing petty business of selling maps and calenders. The convicts are stated to be the first offenders.
9. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option to award death penalty is exercised. The questions to be asked and answered :
(a) Is there something uncommon about the crime which renders sentence of life inadequate and calls for the death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speaks in favour of the offender?
10. After considering the totality of circumstances, the convicts Vinod @ Suraj @ Mota, Dany @ Ravi, Vinod @ Ratania and Vicky are sentenced to life imprisonment with the fine of Rs.10,000/ each in default six months SI for the offence u/s 302/34 IPC. The case property is State V Vinod FIR no. 21/08 PS Rohini Page No. 32 of 33 confiscated to the State. Benefit of Section 428 IPC be given to the convict. A copy of the judgment and order on sentence be supplied to the convicts free of cost. Committal warrants be issued. The file be consigned to the record room.
Announced in open court (Dr.Sudhir Kumar Jain) on 26.11.2011 ASJ01 (Outer) Rohini, Delhi. State V Vinod FIR no. 21/08 PS Rohini Page No. 33 of 33