Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 1 of 49 * HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on : 20.04.2009 Judgment delivered on: 24.04.2009 + Crl. Appeal No.439/2008 VED PRAKASH & ANR. ..... Appellants Through : Mr. Sandeep Sethi, Sr. Advocate with Mr. Anurag Jain, Advocate VERSUS STATE .....Respondent Through : Mr. Pawan Sharma, Advocate Crl. Appeal No.479/2008 NIRANJAN LAL ..... Appellant Through : Mr. F.Haq, Advocate VERSUS STATE .....Respondent Through : Mr. Pawan Sharma, Advocate Crl. Appeal No.480/2008 HIRA LAL @ TONI ..... Appellant Through : Mr. F.Haq, Advocate VERSUS STATE .....Respondent Through : Mr. Pawan Sharma, Advocate Crl. Appeal No.540/2008 HARI OM & ANR. ..... Appellants Through : Mr. Sandeep Garg, Advocate for Mr. Jagdish Dhawan, Advocate VERSUS STATE .....Respondent Through : Mr. Pawan Sharma, Advocate Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 2 of 49 CORAM :- HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes PRADEEP NANDRAJOG, J. 1. 11 accused namely: (i)Hira Lal @ Toni , (ii)Niranjan Lal, (iii)Shishpal all sons of Yaad Ram, (iv)Rakesh, (v)Bhupender, (vi)Hari Om all sons of Ramesh Chand, (vii)Ved Prakash, (viii)Dharmender, (ix)Kanchan Singh all sons of Shankar Lal, (x)Umaro S/o Munna Lal and (xi)Bal Kishan @ Bale were sent for trial and were charged as under:- “Firstly that on 13.8.95, at about 5:30 PM, at Main road, Pahari Dheeraj, near Om Sweet, Gali Barna, within the jurisdiction of Police Station Sadar Bazar, you all, in prosecution of your common object of assaulting Ram Swaroop, Hem Raj and Rajesh etc., were the members of unlawful assembly and were armed with deadly weapons, which were likely to cause death and thereby committed an offence punishable under Sec.148 r/w Sec. 149 of the IPC and within my cognizance. Secondly, that on the abovesaid date, time and place, you all, in prosecution of your common object of assaulting Ram Swaroop etc., caused the death of Hem Raj and thereby committed the offence of murder punishable under Sec. 302 r/w Sec. 149 of the IPC and within my cognizance. Thirdly, that on the abovesaid date, time and place, you all, in prosecution of your common object of Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 3 of 49 assaulting Ram Swaroop etc., caused dangerous injury to Rajesh with sharp object with such intention or knowledge and under such circumstances that if by that act you had caused the death of Rajesh, you would have been guilty of an offence of murder and thereby committed an offence punishable under Sec.307 r/w Sec.149 of the IPC and within my cognizance.” 2. Bal Kishan @ Bale expired during trial and hence the proceedings abated against him. 3. Vide impugned judgment dated 24.4.2008, accused Hira Lal, Niranjan Lal, Hari Om, Kanchan Singh, Bhupender, Ved Prakash, Rakesh and Dharmender have been convicted. Umrao and Shishpal have been acquitted. 4. Noting at the end of the trial that Kanchan Singh and Bhupender were juvenile, the learned Trial Judge has passed an order that a duplicate set of entire proceedings be prepared and placed before the Juvenile Justice Board so that appropriate order on sentence may be passed against said two accused. Qua the remaining 6 i.e. Hira Lal, Niranjan Lal, Hari Om, Ved Prakash, Rakesh and Dharmender, holding that since it was proved that they had committed offences punishable under Section 302/149 IPC and Section 307/149 IPC, it has been held that the said accused need not be convicted for the lesser offence i.e. the offence punishable under Section 148 IPC. 5. Vide order on sentence dated 25.4.2008, all six have been sentenced to undergo imprisonment for life and pay a fine Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 4 of 49 of Rs.10,000/- each; in default of payment of fine to undergo simple imprisonment for 4 months for the offence punishable under Section 302/149 IPC. They have been directed to undergo imprisonment for 10 years and pay a fine of Rs.10,000/- each; in default of payment of fine to undergo simple imprisonment for 4 months for the offence punishable under Section 307/149 IPC. Needless to state, the sentences have been directed to run concurrently. 6. The said 6 accused have filed the aforenoted 4 appeals. Ved Prakash and Dharmender have filed a joint appeal. Hari Om and Rakesh have filed a joint appeal. Niranjan and Hira Lal have filed individual appeals. 7. The process of the law commenced when DD No.11 Ex.PW-27/A was recorded on 13.8.1995 at 5:40 PM by the duty officer PS Sadar Bazar that a message has been received from the police control room that a fight had taken place in gali Barna, Pahari Dheeraj, Sadar Bazar. SI Kanwal Singh PW-27, accompanied by Const.Rishi Prakash PW-14, left for the spot and learnt that two injured persons had been removed to Hindu Rao Hospital and one had been removed to Ram Manohar Lohia Hosptial. SI Narender Singh PW-32 and HC Dhyan Singh PW-21 also reached the spot soon after. HC Dhyan Singh was left at the spot to guard the same. Inspector Kanwal Singh, SI Narender Singh and Const.Rishi Prakash left for Hindu Rao Hospital and Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 5 of 49 found Rajesh and Ram Swaroop admitted in the hospital; both having injuries. Whereas Rajesh was unfit for statement, Ram Swaroop was fit for statement and accordingly, SI Narender Singh PW-32, recorded the statement Ex.PW-4/A of Ram Swaroop, in which it was stated as under:- “Statement of Ram Swaroop, S/o Lila Ram, R/o House No.4161, Gali Barna, Sadar Bazar, Delhi aged 24 years. I reside with my family at the above mentioned address and sell betel leaves for a living. Yesterday evening Bobby had spoken ill of our sister-in-law for which our father had scolded them but no police report was lodged. Today, in the evening at about 5:30 PM I and my brother Hem Raj had fetched a TSR of Rajesh to drop our sister at her in-laws‟ house. We were standing near Om Sweets Shop while our sister along with the other women in the family was coming towards the auto when Toni, Bobby, Dharmender, Kanchan, Rakesh, Hari Om, Niranjan and Bhupender who are known to me as they reside in my colony came there one by one and Toni exhorted the others and said ‘inhe maro, ye bachkar na jaane paye, inke pita ne kal hamari bejatti ki hai’. Thereafter Niranjan and Hari Om caught hold of Hem Raj and Hira Lal stabbed him in the stomach. When I tried to move forward Toni hit me on my head from the rear end of the knife and Hari Om caught hold of me while Rakesh started hitting me with a hockey stick on my head and waist. Hari Om had hit me with an iron chain. Kanchan and Bhupender caught hold of TSR driver Rajesh while Bobby and Dharmender stabbed him in the waist and Rakesh hit him on the head and waist with a hockey stick. Hari Om hit Rajesh with the chain. That all the above mentioned accused persons ran away when I raised a hue and cry. All the accused persons entered into a conspiracy to make this life threatening attack on us. The incident was witnessed by many people who were standing there at the road. Let legal action be taken against the accused persons. We were brought to the hospital by a PCR Van. My statement has been read over to me and is correct.” Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 6 of 49 8. SI Naresh Kumar made an endorsement, Ex.PW-32/A, on the aforesaid statement of Ram Swaroop and handed over the same to Const.Mukesh Kumar PW-30 at 8:45 PM (a fact recorded in the endorsement Ex.PW-32/A) who took the same to the police station, where based on the statement, an FIR was registered. 9. At the hospital, the blood stained clothes of Rajesh were handed over by the doctor to SI Narender Singh who seized the same vide seizure memo Ex.PW-17/A. 10. Thereafter, SI Kanwal Singh and SI Narender Kumar went to Ram Manohar Lohia Hospital where they learnt that Hemraj was admitted in an injured condition and was unfit to make a statement. They collected the MLC Ex.PW-5/A of Hemraj. The doctor at Ram Manohar Lohia Hospital handed over the blood stained clothes of Hemraj to them, which they seized vide seizure memo Ex.PW-13/A. 11. Accused Kanchan and Bhupender were arrested the same day from Tikona Park, Idgah, Sadar Bazar at the instance of Jitender Kumar PW-22. On 14.8.1995, acting on a tip from an informer, accused Niranjan and Hari Om were arrested in the presence of Jitender Kumar from near the stairs at Sadar Bazar Railway Station and a cycle chain was recovered from the right side pocket of the pant of accused Hari Om, which was seized Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 7 of 49 vide seizure memo Ex.PW-27/F. 12. Hemraj expired the next day i.e. on 14.8.1995. The duty constable at the hospital informed the local police station of his death, which information was recorded vide DD No.7A. The offence of murder was added in the FIR and the investigation of the case was handed over to Inspector Mahender Singh Malik PW-31. He went to R.M.L.Hospital and seized the dead body of Hemraj and sent the same to Sabzi Mandi mortuary. 13. The post-mortem of the deceased was conducted on 14.8.1995 itself by Dr.L.K.Barua PW-6, at the Sabzi Mandi mortuary. The post-mortem report Ex.PW-6/A records the following injuries on the person of the deceased:- “One vertically placed midline stitched wound was seen in front of upper and middle abdomen of length 10 inches. Another stitched wound of length 1-2/3 inch seen four inches above the umbilicus. I have drawn the diagram of the wounds in my original PM report. No other external injury mark was seen on the body. Internal examination: The scalp, skull bones were entact and normal. The brain was pale. Neck structures were entact and normal. All chest organs were normal but pale. After opening the stitches of the wounds both the injuries were seen to be cleanly cut. The big midline stitched wound was operational, but the small one was the one that was the stab wound. After exploration the abdominal cavity the duodenum of intestine was found to be stitched. The pancreas and the liver were Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 8 of 49 seen to be stitched. These injuries were seen to be corresponding to the injury placed four inches above the umbilicus. The stomach was empty. All the abdominal organs and viscera was seen smeared with blood clots. The rectum and the urinary bladder were empty.” 14. The cause of death was opined to be the injury on the abdomen which was held to be sufficient to cause death in the ordinary course of nature. A sample blood of the deceased on a gauze was handed over by Dr.L.K.Barua to Inspector Mahender Singh, which was seized by him vide seizure memo Ex.PW-16/A. 15. In the meanwhile on 14.8.1995 the condition of Rajesh improved and his statement under Section 161 Cr.P.C. was recorded by Inspector Mahender Singh Malik. 16. Acting on secret information received on 15.8.1995, SI Mahender Singh Malik went to D-326, Nathu Colony, Nand Nagri, Delhi where 4 accused namely Hira Lal, Rakesh, Ved Prakash @ Bobby and Dharmender were arrested on the pointing out of the secret informer. The statements made by the four, on interrogation, i.e. Ex.PW-31/J, Ex.PW-31/K, Ex.PW-31/L and Ex.PW-31/M respectively, were recorded by SI Mahender Singh Malik. Accused Hira Lal stated that he can lead the police to the place where he had thrown the knife used by him. Thereafter, the accused led SI Mahender Singh to the Ladies Public Lavatory, Basti Ram Lal, Gali Barna, Sadar Bazar, Delhi and produced the knife Ex.P2 from a wall of the lavatory. The same was seized vide Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 9 of 49 seizure memo Ex.PW-31/N in the presence of two public witnesses namely Raj Kumar and Suresh Kumar. A sketch, Ex.PW-31/O, of the knife was prepared by SI Mahender Singh. Accused Rakesh Kumar disclosed that he can lead the police to the place where he had hidden a hockey stick used by him and thereafter in the presence of the aforenoted two public witnesses led SI Mahender Singh to his room on the first floor of House No. 4305, Gali Dharamshala, Basti Nand Ram, Gali Barna, Sadar Bazar, Delhi from where he got recovered a hockey stick Ex.P3 which was seized vide seizure memo Ex.PW-31/P 17. The remaining accused namely Shishpal, Umrao Singh and Bal Kishan were arrested on 19.9.1995, 1.11.1995 and 3.11.1995 respectively. 18. For record, it may be noted here that the prosecution had not relied upon any recoveries effected pursuant to the disclosure statements made by any other accused, save and except the recoveries effected from Hari Om when he was arrested and the recoveries effected pursuant to the statement made by Rakesh and Hira Lal. 19. The knife recovered pursuant to the disclosure statement of Hira Lal was sent to Dr.L.K.Barua PW-6, for opinion, as to whether the stab injury on Hemraj could be caused by the knife in question. He gave a report Ex.PW-6/C informing that the stab injury noted by him on the person of the deceased could Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 10 of 49 possibly be caused by the knife Ex.P2. 20. Rajesh was discharged from the hospital, as recorded in his MLC Ex.PW-9/C after 13 days i.e. on 26.8.1995. 21. On 11.9.1995 the knife Ex.P2, the blood stained clothes of the deceased and the blood sample of the deceased on a gauze, were sent to the FSL Malviya Nagar and the serologist opined, vide report Ex.PX, that human blood of group „A‟ was found on the knife and that the blood group of the deceased was „A‟. 22. In the course of investigation, Inspector Mahender Singh Malik PW-31, recorded the statements of Nirmal Kumar PW-2, Chandu Lal PW-11, Kanta Prasad PW-12 and Jitender PW- 22. It may be noted that Nirmal Kumar and Jitender are inhabitants of the area and are not related to either Rajesh, the injured TSR driver or Hemraj, the deceased nor to Ram Swaroop the third person who was injured. 23. All the accused persons were charged as aforenoted in para 1 above. Needless to state, the prosecution heavily relied upon eye witness account. 24. PW-1 Rajesh, the injured TSR driver who remained hospitalized for 13 days and whose presence at the spot was not in doubt, being an injured himself, turned hostile. He deposed that deceased Hemraj was his friend and that on 13.8.1995 at 5:30 PM he had parked his TSR at the corner of Gali Barna. Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 11 of 49 Hemraj requested him to drop his sister to the house of her in- laws. At that time 4-5 boys came and requested him to carry them. He refused. The boys forcibly occupied his TSR. One boy was armed with a knife and two were armed with hockey sticks. He called Hemraj, at which one boy stabbed Hemraj in the abdomen and that even he was given a knife blow and was hit with hockey sticks on his back and on his head. He stated that on receiving blows on his head he became unconscious and that he could not name the boys who had attacked him. He denied that any one out of the 11 accused who were present in Court (when he deposed on 23.7.1999) were present at the place of occurrence on 13.8.1995. 25. Rajesh PW-1 was declared hostile. He was cross examined by the learned APP, but nothing could be elicited from him during cross examination by the learned APP which needs to be noted by us except that he admitted that the accused were residents of the same locality in which he resided. In a nut shell, PW-1 is a completely hostile witness save and except he admits that Hemraj was injured at the spot at 5:30 PM on 13.8.1995 and even he received injuries at the spot at said time and on said day. 26. Nirmal Kumar PW-2 also turned hostile. He deposed that on the day of the occurrence he was on the way to his house and saw a crowd at the corner of Gali Barna and on Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 12 of 49 inquiry he was told that some boys had quarreled. He deposed that he does not know as to who quarreled and who received injuries. The witness was cross examined by the learned APP, but nothing could be elicited to support the case of the prosecution. In other words, PW-2 is a completely hostile witness. 27. Since extensive submissions were made during arguments in appeal pertaining to the deposition of PW-4 vis-à- vis the deposition of PW-12, in relation to the facts deposed to by them in examination in chief, we note the examination in chief of Ram Swaroop PW-4 in full. We shall likewise do so for Kanta Prasad PW-12. Ram Swaroop PW-4, stated in examination in chief as under:- “The occurrence of this case took place on 13.8.95. It was a day prior to 13.8.95. Some hot words were exchanged with regard to our bhabi with Tony etc. and my father had scold it them for it but we had not lodged a report, about it. On 13.8.95 at about 5:30 PM my sister Bhagwanti had to go to her in laws house so we hired a scooter of Raju who resides nearby and I along with my brother Puppy whose name is Hem Raj besides the Raju were standing near the three wheeler parked near Om Sweets at the corner of gali Barna Pahari Dhiraj. It was at that time that all the accused persons who were present in the court today namely Tony, Hari Om, Niranjan, Rakesh, Bobby, Dharmender, Kanchan and Bhupender came there one by one. All these accused persons are known to me since childhood and out of whom accused Tony and Niranjan resides in front of our house. After reaching near us accused Tony asked his companion to beat us as our father had insulted him. On hearing so accused Niranjan and Hari Om caught hold of my brother Hemraj and Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 13 of 49 accused Tony gave a knife injury in the stomach of my brother. When I caught hold of Tony from behind he gave a knife injury on my head with its back portion. Thereafter, accused Hari Om caught hold of me from behind and accused Rakesh assaulted me and caused injury on my person including on my head. I then saw accused Kanchan and Bhupender caught hold of the TSR driver Raju. And thereafter accused Bobby and Dharmender gave knife injury to TSR driver Raju and he sustained injury on his back. Thereafter accused Rakesh hit Raju with hockey and Hari Om accused caused injury to him and beat him with cycle chain. Thereafter accused Umrao, Shishpal and Balkishan also came there and they asked the accused person to beat us and we should not be able to escape. Thereafter the control room police van arrived when myself and Raju were removed to the hospital. Before our leaving the spot my brother Hemraj has been taken to the hospital but I do not remember how as to who removed him. The police recorded my statement which is Ex.PW- 4/A and bears my signature at point „A‟. I identify all the accused present in Court today.” 28. Chandu Lal PW-11 deposed inchoate facts, partially supporting the case of the prosecution. We are not noting his testimony, because the learned Trial Judge has not relied upon his testimony and learned counsel for the State conceded during arguments of the appeal that Chandu Lal‟s testimony may be excluded while considering the evidence against the accused. 29. Kanta Prasad PW-12, deposed as under, in examination in chief:- “On 13.8.95, at about 5/5:30 PM, I was present at my shop which is situated in Gali Barna, which was at a distance of about 40-50 spaces from the place of occurrence. Hem Raj deceased was my younger brother. It was about at that time when I saw my brother Ram Swaroop, Hem Raj going with the luggage of our sister Bhagwanti who was to go to her Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 14 of 49 in-laws. Rajesh who resides in our neighbourhood and is a TSR driver was standing with his three-wheeler outside the gali near Om Sweets shop. The Om Sweet Shop is on the one hand of the gali and the other corner is the Shyam Sweet shop. The scooter three- wheeler was standing towards Om Sweet shop and its driver Rajesh @Raju was also standing there. Ram Swaroop and Hem Raj stopped near the stationary three-wheeler. My sister Bhagwanti and Tulsa were coming in the gali to go to the matrimonial home. After 10/15 minutes I heard the noise of bachao- bachao and some other type from outside the gali. On hearing the noise I ran towards outside the gali. On reaching the spot that is outside the gali I saw that my deceased brother Hem Raj was held by Hari Om and Niranjan, accused who are present in Court today, and accused Tony who is also present in Court today was giving knife blows on the stomach of my brother Hem Raj. With the above mentioned accused persons named above accused Kanchan, Bhupinder, Bobby, Rakesh, Dharmender were also present there. Thereafter, Kanchan and Bhupinder caught hold of TSR driver Rajesh and Bobby and Rakesh were giving knife injury to Rajesh. Rajesh, TSR driver was assaulted by the above-mentioned accused persons as he was trying to save Hem Raj. As soon as Ram Swaroop tried to intervene and save Hem Raj, accused Tony from the reverse side of the knife caused injury on the head of Ram Swaroop. Ram Swaroop was also hit by Jitender by hockey. Again said it was not Jitender but it was Hari Om. The other accused persons were also having iron chain in their hand and had also given blows with the said chain to Ram Swaroop. After assaulting us the above-mentioned who are all present in court today ran away from the spot. Thereafter the PCR van came and they removed Rajesh and Ram Swaroop to the hospital, i.e., Bara Hindu Rao. My brother Hem Raj was removed to RML Hospital by my brother Chandu Lal and I also followed him. Jitender is my neighbour, he was also present and he also got admitted my brother Hem Raj in the hospital. Accused Umrao, Shishpal and Balkishan are also present in court today and I know them also as they reside in my gali. I gave my statement to the police first on 13.8.95. I again made statement to the police on 14.8.95 at the PS. I also named Umrao, Shishpal and Balkishan in my statement on 14.8.95 as Crl.A.Nos.439/08, 479/08, 480/08 & 540/08 Page 15 of 49 they were also standing at the time of occurrence near the spot and they were saying to the other accused persons “aaj inko mar do, jaane na payein”. At the time of occurrence on 13.8.95 when the other accused persons were assaulting us.” 30. Jitender PW-22 turned completely hostile. He disclaimed having told anything to the police. He disclaimed any recovery being effected in his presence. The other witness to the recoveries, namely Raj Kumar PW-3, also turned hostile and did not support any recovery which the prosecution sought to prove through him. 31. With reference to the testimonies of PW-4 and PW-12, the learned Trial Judge