PRAVEEN KUMAR AND ORS. Vs. STATE AND ORS.

JUDGEMENT

(1.) FIVE appellants Praveen Kumar @ Pappu @ Puran Saxena, Sita Ram, Azad @ Patiya, Bhutna and Mohd. Usman @ Churi impugn their conviction under Section 302 read with Section 34 of the Indian Penal Code, 1860 (IPC, for short) for having committed murder of one Jaggi at about 10 P.M. on 12th July, 2009, near Jhuggi No. A -93, Jailer Wala Bagh, Ashok Vihar, Phase -II, Delhi. The judgment under challenge dated 22nd December, 2012 arises from the charge -sheet filed in FIR No. 330/2009, police station Ashok Vihar.

(2.) BY order on sentence dated 12th February, 2013, the appellants have been sentenced to imprisonment for life for the offence under Section 302 read with Section 34 IPC. Fine of Rs.5,000/ - each has been imposed. In default, the appellants have to undergo simple imprisonment for six months. Benefit of Section 428 of the Code of Criminal Procedure, 1973 has been granted.

(3.) THE prosecution, in the present case, primarily relies upon the eye -witness account given by Hari Ram Saroj (PW1) and Lalmani Saroj (PW7), brother and father of the deceased Jaggi. PW -1, in his deposition recorded on 29th April, 2010, has averred that he was running a ration shop at Jailer Wala Bagh and his younger brother, the deceased Jaggi, used to work in his shop. On 12th July, 2009, when PW1 along with Lalmani Saroj (PW7), Angrahit Chaudhary (PW3) and the deceased Jaggi, were present in the shop, the five appellants, whom he correctly identified in the Court, came and started abusing them. Jaggi had protested and enquired from Praveen the reason for such behaviour. Praveen had then retorted and curtly stated that Jaggi claimed himself to be a social reformer. Jaggi pleaded that he had not made any such claim. Praveen was having a sword, Sita Ram was having a meat cutting knife, Bhutna was having an iron rod (saria), Usman was having a double -edged knife and Patia was having a knife. Bhutna gave a saria blow to Jaggi, who, in order to save himself, ran away from the spot, but was chased and overpowered near Jhuggi No.A -93, Jailer Wala Bagh. Hari Ram Saroj (PW1), Lalmani Saroj (PW7) and Angrahit Chaudhary (PW3) followed them. The appellant Praveen hit the deceased Jaggi with a sword and others, namely, Sita Ram, Usman, Patia and Bhutna gave blows with knives and saria. Jaggi fell down and became unconscious. The appellants fled away from the spot. PW -1 claimed that he did not intervene to save his brother Jaggi since he was frightened. However, he had protested loudly and people had gathered at the spot. Someone had informed the police, after which a PCR van reached the spot. Jaggi was rushed to Sunder Lal Jain Hospital in the PCR van. Hari Ram Saroj (PW1) had accompanied him to the hospital. Jaggi was declared as 'dead' in the hospital. Thereafter, the SHO and other police officers came to the hospital and statement of PW1 marked Ex.PW1/A was recorded. PW1 had thereupon accompanied the police officers to the place of occurrence, which was inspected. Blood was lifted from the spot with the help of cotton swabs. A blood -stained stone lying at the spot was chiseled and lifted. PW1 testified that in Ex.PW1/A, he had inadvertently failed to name Usman as he was shocked and frightened at that time. However, when the police came to the spot after about two hours, PW1 had given the name of Usman in his supplementary statement dated 13th July, 2009. PW1 knew the five appellants from before and much prior to the occurrence. PW1's examination -in -chief, as noticed above, was recorded on 29th April, 2010. PW1 was re -called and examined on 19th November, 2010, i.e. after more than seven months. On the said date, in his examination -in -chief, PW1 identified the sealed pulandas containing clothes of the deceased and various weapons of offence except the sword. The said sword was taken out from a pulanda bearing the seal of FSL. There was mud on the entire blade of the sword. In his cross -examination, PW -1 professed that the accused had inflicted 2 -3 saria blows on public persons, who had tried to save his brother. PW1 denied the suggestion that he had falsely implicated the appellant Usman in his supplementary statement. On his cross -examination by the counsel for the appellant Praveen, PW -1 accepted that he had signed his statement after going through its' contents. Thereafter, PW -1 professed that the police had pointed out towards the appellant Praveen when he had come to the Court for deposition on the last date of hearing. He did not have any business or other dealings and was not acquainted with the appellant Praveen, prior to the incident. Significantly, in the earlier portion of the cross -examination by the counsel for the appellant Praveen, PW -1 had stated that the appellant Praveen was residing in the Sawan Park area, but he could not tell the exact location or house number. The distance between PW -1's house and Sawan Park was about one kilometer, but he had never visited the house of Praveen. He deposed that Praveen was also known as Pappu. He did not know the name of Praveen's father but knew that he belonged to either Mainpuri or Etah (U.P.). In his re -examination by the Additional Public Prosecutor, PW -1 deposed that he had not known Praveen by face and had never seen him prior to the occurrence, in spite of being confronted with portion A to A of statement Ex.PW1/A, wherein it is recorded that Praveen was a criminal and was known to him very well since prior to the occurrence. He denied the suggestion that he was deposing falsely regarding identity of Praveen due to fear and pressure put up by the family members of Praveen or that he had been won over by them.