STATE NCT OF DELHI Vs. SATENDER

JUDGEMENT

(1.) THERE is delay of 18 days in filing of the application for leave to appeal and hence application for condonation of delay has been filed. However, before issuing notice on the said application, we have deemed it appropriate to examine the leave to appeal application on merits.

(2.) LEARNED Additional Public Prosecutor submits that there were two eye witnesses, namely, Usha Rani (PW -2) and Subhash Chand (PW -3), who have deposed and testified about presence of the respondents Satender and Manoj Kumar at the spot and their involvement. She submits that Subhash Chand (PW -3) was the injured eye witness and it does not make any difference that his statement was recorded on 4th April, 2005. It is further submitted that statement of Usha Rani (PW -2) was recorded on the next day of the occurrence i.e. 7 th March, 2005. It is stated that the ,,danda used by respondent Manoj Kumar was recovered and as per the CFSL report, it had blood of group A, which matched with the blood group of the deceased Sandeep.

(3.) TRIAL court has referred to the statement of Head Constable Madan Lal (PW -14) posted with PCR Romeo 53, who after receiving the call regarding quarrel, had reached the spot and had taken the deceased Sandeep, Subhash (PW -3) as well as accused Upender and Surender to the hospital. Trial court has referred to the testimony of Head Constable Prem Kumar (PW - 12), also attached to the said PCR and who had reached the spot immediately after occurrence. He has deposed that he met one lady Usha Rani (PW -2) and others at the spot and had spoken to them. Similarly, we have deposition of ASI Sriniwas (PW -26), who had reached the spot and recovered danda, saria, knife and churi from the spot and had taken photographs etc. ACP Rajeshwar (PW -28) who was the Investigating Officer had observed presence of weapons i.e. danda, saria, knife and a churi, which were found at that spot. The said weapons/articles were four in number. He had thereafter visited the hospital where the deceased Sandeep, Subhash Chand (PW -3) and two accused Upender and Surender were admitted. Statement of Surender, who was fit for statement, was recorded. He claims that the other three injured were declared unfit for statement. PW -28 had stated that Usha Rani (PW -2) expressed her inability to give any statement till Sandeep and Subhash were given proper treatment. ASI Sriniwas (PW -26) had stated that he had also visited hospital but Sandeep and Subhash were not in a condition to give statement. Usha Rani (PW -2) met them but would not reveal anything. PW -2 told them that she knew the persons who had quarrelled with the deceased Sandeep and Subhash Chand (PW -3), but till the injured were in a fit condition, she would not reveal facts. Thereafter, they proceeded to the spot, collected and seized the incriminating material and evidence. PW -26 had recorded in his diary that Usha Rani (PW -2) had refused to reveal anything about the incident till the injured were fit to make any statement.