STATE Vs. SURENDER

JUDGEMENT

(1.) DEATH Sentence Reference 5/2013 has been sent by the learned Additional Sessions Judge for confirmation of the death sentence awarded to Sunil and Sudhir. By Crl. Appeal No. 1219/2013 Appellants Sunil and Sudhir have challenged the judgment of conviction dated 31st July, 2013 convicting them for offence punishable under Sections 302/307/34 IPC and the order on sentence dated 27th August, 2013 awarding them sentence of death for offence under Sections 302/34 IPC. The appeal also challenges the conviction and sentence awarded to Sudhir for offences under Sections 25 and 27 Arms Act. By Crl. Appeal Nos. 1362/2013, 1463/2013, 1464/2013 and 345/2014 the Appellants Suresh, Surender, Raj Kumar and Sanjay have challenged the impugned judgment convicting them for offence punishable under Sections 302/307/34 IPC and sentence dated 27th August, 2013 directing them to undergo imprisonment for life.

(2.) LEARNED APP for the State has taken us through the evidence on record. The case of the prosecution unfolds from the statement of PW -3 Neeru, mother of the deceased Ex. PW3/1 on the basis of which FIR was registered. Neeru has stated that she had three daughters and one son. On 20th July, 2009 at 11.30 PM she and her daughter were standing outside their house when Sunil named goon and his younger brother Sudhir, who lived in the same locality, came there and created nuisance. They started passing lewd remarks and obscene gestures towards her daughter 'N'. She and her son Subhash came out and objected to their wrong doing. Her son told them to get away from in front of their house. Sunil and his brother while hurling abuses to them said that they would teach them a lesson shortly. About twenty minutes later, Sunil, Sudhir, Rajkumar @ Danny, Suresh@Phullu, Surender @ Sonu Punjabi came there. Sunil was carrying a baseball bat in his hand, Sudhir a knife, Sonu Punjabi iron rod and Phullu and Danny were having empty bottles of liquor in their hands. They started challenging her son Subhash. On seeing them her son ran away towards the street. They all ran after him saying "this bastard must be killed, he has challenged our hooliganism." They caught hold of her son in the street of Shiv Mandir. Sunil attacked her son with baseball bat on his head, Sonu Punjabi with iron rod and Phullu and Danny with empty bottles of liquor. Her son became unconscious and fell down. She and her daughter followed them while crying and shouting for help. Hearing their screams her nephew Naresh and neighbour Samir @ Kale followed them in order to intervene. The assailants also caught hold of her and her daughter. Sudhir stabbed Naresh with the knife he had been carrying and Sunil, Sonu Punjabi, Danny and Phullu also inflicted injuries on them. The empty bottles of liquor which Danny and Phullu were carrying in their hands were broken and their glass pieces got scattered in the street. In the scuffle Sunil fell on the glass pieces due to which he also sustained injuries. Thereafter Sunil and his accomplices ran from the spot leaving behind the baseball bat and iron rod etc. Sunil and his accomplices caused fatal injuries to her son while attacking them murderously with the common intention. The alleged incident took place around 12.00 in the night and the rukka was sent for the registration of the FIR at 2.15 AM on the intervening night of 21st July, 2009 and 22nd July, 2009.

(3.) LEARNED counsel for Sunil and Sudhir contends that a perusal of the PCR entries and the place of occurrence show that there were two distinct incidents. As per the first PCR call, the incident was allegedly at the house of the Complainant whereas the son of the Complainant died in front of Shiv Mandir. The gap between the two incidents shows that they were two distinct incidents and material facts have been concealed by the prosecution. Though it is the case of the prosecution that the deceased was given knife blows however, as per the postmortem report and the MLC there is no injury by knife on the deceased. Hence, the eye witnesses are planted witnesses. Neeru and 'N' reached the hospital later and thus they were not the eye witnesses. Further the factum of Sunil being admitted in the hospital was sought to be concealed by the prosecution. The Investigating Officer PW -28 Inspector Yashpal Singh has deposed falsely when he stated that he did not know as to where Sunil had gone. There is no explanation to the injuries on Sunil. From the MLC, it is clear that the injuries to Sunil were from knife. The finding of the learned Trial Court that Sunil got injured due to the fall on the glass pieces is unfounded as no blood stains were found on the glass pieces recovered. Though Sunil was fit for statement however, his statement was not recorded by the investigating officer. The plea of alibi of Sunil has not been considered by the learned Trial Court. The witnesses stated that all the accused ran away after the incident however, as per the MLC Sunil was admitted by ASI Rawal Singh in the hospital. Hence the version of the eye witnesses is incorrect. From the site plan and the seizure memo it is evident that four baseball bats were at the spot. This is contrary to the version of the eye witnesses. There are contradictions in the testimony of police witnesses. PW -21 Constable Rupesh has stated that the knife was blood stained however, Inspector Yashpal Singh stated that the knife was not blood stained. Though it is alleged that there was recovery at the instance of Sudhir however, his disclosure statement was recorded later on.