Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 1 of 37 * IN THE HIGH COURT OF DELHI % Judgment reserved on :14.07.2009 Judgment delivered on: 28.07.2009 + CRL. APPEAL 962/2004 SUNIL …Appellant Through : Mr. Mukesh Kalia, Advocate Ms. Sumita Kapil, Advocate Mr. Girish Gupta, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 977/2004 SHRI KRISHAN …Appellant Through : Mr. Mukesh Kalia, Advocate Ms. Sumita Kapil, Advocate Mr. Girish Gupta, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 981/2004 RAVINDER …Appellant Through : Mr. Mukesh Kalia, Advocate Ms. Sumita Kapil, Advocate Mr. Girish Gupta, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 14/2005 VIJAY …Appellant Through : Mr. Mukesh Kalia, Advocate Ms. Sumita Kapil, Advocate Mr. Girish Gupta, Advocate Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 2 of 37 versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 61/2005 BABU RAM @ FAUJI …Appellant Through : Mr. Mukesh Kalia, Advocate Ms. Sumita Kapil, Advocate Mr. Girish Gupta, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. 1. The process of law was set into motion, when on 11.11.1998 at 4.05 P.M. an unknown person informed the Police Control Room that a quarrel was going on in front of H.No.286, Gali 300, D Block Jahangir Puri, and that a person was firing. Const. Vijay Rani PW-3, on duty at the police control room noted the said information in the PCR form marked A. The information was forwarded to PS Jahangir Puri, where Const. Runa Rathore PW-12, recorded DD. No. 51B, Ex.PW- 12/A. Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 3 of 37 2. Copy of DD No.51B was given to ASI Ram Niwas PW-32 for investigation. Accompanied by Const. Surender PW- 6 and Const. Sita Ram PW-5 he left for the spot and on reaching the spot saw a huge crowd gathered there. The situation was riotous. Insp. Sajjan Singh PW-56 the SHO PS Jahangir Puri also reached the spot in the mean time. 3. Before investigation could commence as to what had happened and who did what, the rioting crowd had to be contained. The crowd had surrounded house No.366 on Gali No.400 in D Block belonging to Babu Ram. The crowd was demanding that those who had fired be handed over to the crowd. Stones were even thrown at the police personnel who had reached. Additional police force had to be requisitioned and with the arrival of a large number of police personnel at the spot, due to the very presence of the police force, the situation cooled as the crowd melted away. 4. Inspector Sajjan Singh and ASI Ram Niwas learnt that many injured had been removed to LNJP Hospital. They proceeded to the hospital and collected 25 MLCs being Ex.PW- 18/A to Ex.PW-18/R and Ex.PW-47/A, Ex.PW-50/B to Ex.PW- 50/E, Ex.PW-51/A, Ex.PW-51/B, Ex.PW-53/A and Ex.PW-55/E of 27 injured persons who were admitted at the hospital. All of them had gun shot wounds. Anil Kumar a resident of House No.D-354 had been declared brought dead at the hospital. Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 4 of 37 Another injured victim Vijay resident of House No.D-431-432 was in a serious condition and he died in the hospital the same day at 9:20 PM. 5. Since the crowd was saying that appellant Babu Ram and other co-accused, who are all family members, had created the trouble and as per the crowd the target of the accused was the family of Lala Satpal and his neighbour and friend Mangat Ram, and since Mangat Ram who had received superficial pellet injuries was discharged from LNJP Hospital evidenced by his MLC Ex.PW-18/B, Insp.Sajjan Singh returned to the spot and went to House No.D-354, Jahangir Puri, the resident of Mangat Ram. He recorded the statement Ex.PW- 2/A of Mangat Ram as per which Mangat Ram stated that a quarrel was going on for the last 4 or 5 days between his neighbour Satpal who resides in House No.D-293/294, Jahangir Puri and another neighbour Shri Kishan a resident of House No.D-291, Jahangir Puri because each family was accusing the young male members of the other family of having teased a young daughter of their family and that Shri Kishan was a relative of the other accused. He disclosed that on the day of the incident i.e. 11.8.1998, at around 3:00 PM an altercation took place between Satpal and Shri Kishan. Anil Kumar, brother of Mangat Ram went to help Satpal and at that time Babu Ram and his son Ravinder joined the altercation and took Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 5 of 37 the side of Shri Kishan. Sunil, son of Shri Kishan was already present along with his father. The four, namely Shri Kishan, his son Sunil, Babu Ram and his son Ravinder, left threatening that they would teach a lesson to Satpal and his supporters. Soon thereafter Babu Ram, Shri Kishan, Ravinder and Sunil were seen on the roof of his house and on the instigation of Shri Kishan and Sunil, Babu Ram fired bullets at Anil and him i.e. Mangat Ram. Ravinder kept on instigating Babu Ram to keep on firing so that supporters of Satpal were killed. Babu Ram kept on firing indiscriminatingly on all and sundry at street No.300. 6. Making an endorsement under the statement Ex.PW-2/A, Inspector Sajjan Singh forwarded the same through Const.Surender for an FIR to be registered. 7. HC Suresh Kumar PW-19, the duty constable at PS Jahangir Puri received the rukka sent by Inspector Sajjan Singh at about 8:30 PM and on the basis of the statement Ex.PW-2/A registered FIR No.561/1998, Ex.PW-19/B under Sections 302/307/34 IPC. Simultaneously, with a gap of 40 minutes i.e. at 9:10 PM, the next FIR, being No.562/1998, Ex.PW-19/D3 was registered under Sections 147/148/149/186/332/352 IPC on the basis of a written statement of fact sent to the police station by ASI Baljit who was also posted at PS Jahangir Puri and was a part of the police team which reached the spot to control the Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 6 of 37 situation. In the said FIR it stands recorded that when the police personnel reached D Block Jahangir Puri they saw a crowd having surrounded the house of accused Babu Ram and some members of the crowd were pelting stones at the house of accused Babu Ram. 8. It is apparent that the slight day delay in the registration of the two FIRs i.e. Ex.PW-19/B and the FIR Ex.PW- 19/D3 is on account of the reasons noted above; namely, the police personnel having first brought the riotous situation under control and thereafter the SHO proceeding to LNJP Hospital and collecting 25 MLCs of the injured persons and thereafter returning to the spot and recording Mangat‟s statement. 9. As to how appellant Vijay became a suspect on 11.11.1998 is not known because no document has been proved at the trial which shows that on 11.11.1998 anybody named Vijay. But, on 11.11.1998 itself, at late night, all the appellants were arrested from the house of Babu Ram i.e. House No.D-366, Gali No.400, Jahangir Puri. Babu Ram made a statement Ex.PW-32/D in which he told that the gun with which he had fired as also live and used cartridges with him could be handed over by him as the same were in his house. Thereafter, Babu Ram handed over a single barrel gun and four live cartridges as also sixteen used cartridges to Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 7 of 37 Insp.Sajjan Singh, all of which were seized as recorded in the seizure memo Ex.PW-32/F. At the spot, with the help of complainant Mangat Ram and on the pointing out of Mangat Ram, Insp.Sajjan Singh prepared a rough site plan Ex.PW-56/A recording therein the location of House No.366, Gali No.400, D Block, Jahangir Puri i.e. the house of Babu Ram as also the location of House No.D-354, Gali No.300, Jahangir Puri i.e. the house of the complainant Mangat as also the location of House No.D-291 and House No.D-293/294, both on Gali No.300, Jahangir Puri, being the residence of Shri Kishan and Satpal respectively. He noted the spots where Anil and Vijay, the two young boys who were killed, were shot at; as also the spot where Mangat Ram was shot at. 10. The site plan to scale prepared subsequently by the draftsman Teerath Raj Singh PW-7 i.e. Ex.PW-7/A, reflects the rough site plan Ex.PW-56/A in a better and a clear manner inasmuch as the measurements have been recorded therein and thus we take the liberty, at this stage itself, to pen profile the site plan because the same is a very relevat piece of information while considering the evidence on record. 11. As per the two site plans, street No.400 and street No.300 in D Block Jahangir Puri, run parallel to each other along the west-eastern directions. Street No.400 is towards the north and street No.300 is towards the south. The width of Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 8 of 37 street No.400 is 16‟.6”. The width of street No.300 is 15‟.10”. The distance between the two streets is 47‟.8”. This distance between the two streets is not an empty space but consists of a row of houses having a depth of 23‟.10”. To make it clear, one row of houses being House No.361 to 368 have a depth of 23‟.10” and these houses abut street No.400. Back to back to these houses are a row of houses bearing No.353 to 359 with each house having a depth of 23‟.10”. These houses open towards street No.300. Opposite to the row of houses bearing No.353 to 359 on street No.300 are house Nos.298 to 293. It is apparent that the doors of house No.353 to 359 open in the southern direction on to street No.300 and the doors of house Nos.298 to 293 open towards the northern direction on to street No.300. On the site plan, the spots where Anil and Vijay were shot at have been marked 1 and 2. They are at a distance of 3‟.6” and 3‟ respectively from the boundary wall of house No.295 and house No.294. Spot where Mangat Ram was shot at is shown at point No.3 which is also at a distance of about 3‟ from the boundary wall of house No.297. The spot wherefrom Babu Ram is stated to have fired is shown as spot No.4 and is on the roof of house No.354 belonging to Mangat Ram. The site plan shows that house No.366 of Babu Ram is back to back with house No.355 of Ramesh Chand and house No.354 of Mangat Ram is adjacent to the house of Ramesh Chand towards the west of house of Ramesh Chand. The Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 9 of 37 location of house of Babu Ram, Ramesh Chand and Mangat Ram, may be graphically shown as under:- Street No.400 H.No.366 (Babu Ram) H.No.354 (Mangat Ram) H.No.355 (Ramesh Chand) (4) Street No.300 __________________________(3)__________________(1)______(2)_____ (NB: Spots 1, 2, 3 and 4 being the 4 spots described in the site plan as pen profiled above have been shown). 12. The dead bodies of Vijay Kumar and Anil Kumar were seized and sent to the mortuary where Dr.Anil Kumar PW-24 conducted the post-mortem of the two on 12.11.1998 and prepared the reports Ex.PW-24/A and Ex.PW-24/C as per which he noted that both of them had received multiple pellet injuries discharged by a smooth bored firearm fired from a distance range and the cause of death was haemorrhagic shock due to the resultant injuries. Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 10 of 37 13. We need not note the evidence pertaining to the ballistic expert qua the pellets recovered from the two dead bodies as also the used cartridges as also the gun recovered from appellant Babu Ram, for the reason Babu Ram has admitted having fired the shots which caused injuries to 23 persons and resulted in the death of two. Babu Ram claims to have acted in self-defence, when as per him, a crowd, baying for his blood and the blood of his family members, surrounded his house and attempted to break into his house to lynch his family members as also to set his house on fire. 14. It may be ntoed that the accused are related to each other as under:- A. The sister of accused Babu Ram is the wife of accused Shri Kishan. B. Accused Ravinder is the son of Babu Ram. C. Accused Sunil is the son of Shri Kishan. D. Accused Vijay is a distant relative of Shri Kishan. 15. The accused were charged with the offence of having murdered deceased Anil and Vijay and attempting to murder 25 persons who received pellet injuries when they were present on street No.300. The case of the prosecution was that an altercation took place between the family of Lala Satpal and Shri Kishan qua the teasing of the daughter of Satpal by the young male members of the family of the other. The accused intervened. The family of Shri Kishan left with the Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 11 of 37 accused to the house of Babu Ram and to vent vengeance against Lala Satpal and the neighbours who had supported Satpal; namely Mangat and Anil the brother of Mangat (who resided in House No.D-354, Gali No.300 Jahangir Puri), at the instigation and pointing out of the co-accused, Babu Ram fired 16 shots specifically targeting Mangat and his brother Anil as also Vijay who resided in House No.D-431/432, Jahangir Puri and probably sided with Lala Satpal. As per the prosecution Babu Lal fired on all and sundry in street No.300. 16. We note that the defence of accused Babu Ram was of self-defence and the defence of his family members and his house. The other accused claimed not to be present, much less having instigated Babu Ram to fire the shots. 17. In order to prove its case, the prosecution examined 56 witnesses. In order to prove the defence, the appellants examined 15 defence witnesses. 18. In view of the defence taken by the appellants and as noted above, we need not note the testimony of all the witnesses of the prosecution. We need to note the testimony of all those who received firearm injuries on the fateful day and those who claimed to be eye witnesses as also the testimony of the defence witnesses. 19. Mangat Ram PW-2 deposed that he was a resident of House No.D-354, Gali No.300, Jahangir Puri and on 11.11.1998 at about 3:00 PM he was outside his house. He Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 12 of 37 heard an altercation between Lala Satpal and accused Shri Kishan and Sunil son of Shri Kishan, pertaining to the daughter of Lala Satpal being teased by the young male members of the family of accused Shri Kishan. Accused Babu Ram and his son Ravinder came to the spot and participated in the altercation. The four i.e. Shri Kishan, his son Sunil, Babu Ram and his son Ravinder left the spot, threatening that Lala Satpal and his supporters would be taught a lesson. Soon thereafter, all the accused went to the roof of Babu Ram‟s house i.e. House No.D- 366, Gali No.400, Jahangir Puri and from there jumped onto the roof of his i.e. Mangat Ram‟s house, which was behind the house of Babu Ram. Accused Shri Kishan and accused Sunil exhorted Babu Ram to open fire and not spare Lala Satpal or anyone who supported him. Babu Ram was armed with a gun. Vijay and Ravinder were also on the roof. Babu Ram opened fire targeting Anil and Vijay. He i.e. Mangat also received a gun shot injury on his right leg. That due to indiscriminate firing many persons in street No.300 received gun shot injuries. The injured were removed to a hospital. His statement Ex.PW-2/A was recorded. 20. Ashok Kumar PW-8 deposed that on 11.11.1998 at about 3:00 PM he heard an altercation between family of Satpal and the accused Shri Kishan and his son Sunil. In the meantime, accused Babu Ram and his son accused Ravinder also joined. Thereafter, the four accused proceeded towards Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 13 of 37 the house of accused Babu Ram and on the way accused Vijay also joined them. All the accused went to the roof of house of Mangat Ram. Accused Babu Ram was having a gun in his hand from which he fired a shot in the air and shouted that they would not spare anyone. Accused Shri Kishan and Sunil told accused Babu Ram to fire at the persons at their instance and accused Ravinder and Vijay said that no supporter of Satpal should be spared that day. Thereafter accused Babu Ram fired bullets which hit the deceased Anil as also Mangat Ram. On being directed by accused Sunil and accused Ravinder, Babu Ram fired towards deceased Vijay and shot him. Afterwards, Babu Ram started firing indiscriminatingly as a result of which many persons received bullet injuries. 21. Kashmere Lal PW-9 deposed that an altercation took place between accused Shri Kishan and Sunil on the one side and Satpal on the other, pertaining to daughter of Satpal being teased by the family members of Shri Kishan and that Babu Ram and Ravinder joined in the altercation. Thereafter Babu Ram, Ravinder, Shri Kishan and Sunil went to the house of Babu Ram and soon thereafter all the accused were seen by him on the roof of house of Mangat Ram and that Babu Ram fired indiscriminatingly causing gun shot injuries to the deceased Anil and Vijay as also to many others. 22. Smt.Darshan PW-13 deposed that a dispute arose between accused Shri Kishan and Sunil on the one side and Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 14 of 37 Lala Satpal on the other. Babu Ram and his son Ravinder joined in the quarrel. Babu Ram, his son Ravinder accompanied by Shri Kishan and Sunil left the spot and were soon thereafter seen on the roof of the house of Babu Ram from where they jumped to the roof of the house of Mangat Ram. Accused Vijay also jumped onto the roof of the house of Mangat Ram. Accused Babu Ram was having a gun in his hand and all the other accused were directing him to fire at the persons at their instance. Accused Babu Ram started firing and hit Mangat Ram, Anil and also the son of her brother-in- law (devar) Vijay. Thereafter Babu Ram fired indiscriminately. She received bullet injuries on her left abdomen and buttocks. Her grand-son Tarun, grand-daughter and son Raj Kumar also received bullet injuries in the said firing. 23. Raj Kumar PW-14 deposed that an altercation took place between Lala Satpal and Shri Kishan in which Sunil, son of Shri Kishan participated, pertaining to daughter of Lala Satpal being teased by the male members of the family of Shri Kishan. Babu Ram and his son Ravinder also came to the street where the altercation was taking place. Babu Ram, Ravinder, Shri Kishan and Sunil left for the house of Babu Ram. Soon thereafter said 4 persons came to the roof of the house of Babu Ram and jumped to the roof of the house of Mangat Ram. Babu Ram had a gun in his hand. Soon thereafter Vijay also jumped from the roof of house of Babu Ram to the roof of Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 15 of 37 the house of Mangat Ram and accused Shri Kishan exhorted Babu Ram to fire on the persons he would point out. Accused Babu Ram started firing and as a result thereof many persons including his mother Darshana, his sister Anju Bala, his nephew Tarun, his niece Priya Rani including himself received bullet injuries. 24. Sushil Kumar PW-15 deposed that a quarrel took place between Lala Satpal and accused Shri Kishan and Sunil son of Shri Kishan. Babu Ram and his son Ravinder came to the street where the quarrel was going on. Babu Ram, Ravinder, Shri Kishan and Sunil left and reached the roof of the house of Babu Ram from where they jumped onto the roof of house of Mangat Ram. Babu Ram had a gun in his hand. Vijay was also present with them. Sunil and Shri Kishan exhorted Babu Ram to fire. The accused pointed towards Anil his i.e. Sushil‟s brother. Babu Ram fired a shot and injured his brother. At the pointing out of the accused towards Mangat, Babu Ram fired injuring Mangat. Babu Ram fired indiscriminately injuring not only Vijay but even others. 25. Shakeel Ahmed PW-17 deposed that on 11.11.1998 at about 3:00 PM he saw a crowd in Gali No.300. He noticed 4/5 people on the roof of a house, amongst whom, some were exhorting accused Babu Ram to fire from his gun. In the said firing from the gun, one bullet hit his left eye. On being cross- Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 16 of 37 examined, he stated that the crowd was running helter skelter and was pelting stones. 26. Baldev Ram PW-27 deposed that prior to 11.11.1998 Satpal residing in D block and accused Shri Kishan were quarreling over the teasing of the daughter of Satpal for 5-6 days. On 11.11.1998, again the quarrel irrupted between Shri Kishan and Satpal over the said issue. People gathered. In the meantime, Sunil son of the Shri Kishan, and Babu Ram along with his son Ravinder who were residing In Gali No.400 joined. The spat took an ugly turn. Accused Vijay also came there. Accused Shri Kishan asked Babu Ram to get his gun and teach a lesson to Satpal and his supporters. Thereafter the said five accused went towards Gali No.400. The accused went to the roof of house of Babu Ram and thereafter they went to the roof of house No.D-354 which belonged to deceased Anil (brother of Mangat Ram). The accused Babu Ram then started firing from his gun. The first victim who was fired at, at the pointing out of other accused, was Anil and thereafter accused Babu Ram fired indiscriminately due to which Mangat Ram received bullet injuries in his leg. His cousin brother, namely Vijay, also received gunshot injuries due to which he died in the hospital. 27. Anju PW-45 deposed that on 11.11.1998 at about 3:00 PM accused Babu Ram fired shots from his gun from the roof of his house in which her brothers namely Anil and Vijay Crl.A.Nos.962/04, 977/04, 981/04, 14/05 & 61/05 Page 17 of 37 were killed. She also received pellet injuries on her head and hand. That when Babu Ram fired the shots the other accused were on the roof. 28. We note that nothing of substance has been brought out in the cross examination of aforenoted witnesses save and except the fact that except for Shakeel Ahmed PW- 17 all other eye witnesses have admitted being related to each other and to the complainant Mangat Ram as also the deceased Anil and Vijay. The relationship may be summarized. Mangat Ram PW-2 is the brother of deceased Anil. Ashok Kumar PW-8 is the father of deceased Vijay. Kashmere Lal PW-9 is the uncle of deceased Vijay. The exact relationship of Anil and Vijay is not known but probably appear to be either cousins or co-brothers. Darshana PW-13 is the sister-in-law of Anil and Vijay. Sushil PW-15 is the brother of Mangat Ram PW-2. Baldev Ram PW-27 is son of Darshana PW- 13. Anju PW-45 states that she is the sister