JITENDER ALIAS JEETU Vs. STATE OF DELHI

JUDGEMENT

(1.) Criminal Appeal No. 679 of 2004 seeks to challenge the judgment and order dated 28.2.2003 of the Additional Sessions Judge, Karkardooma Courts, Delhi, passed in Sessions Case No. 22/2000, arising out of FIR No. 142/2000, Police Station Khajoori Khas, whereby the learned Judge has held the appellant guilty for the offence punishable under Section 302 IPC while has acquitted Mukesh/accused No.2 who along with convicted accused was charged under Section 302/34 IPC. Further, by order of sentence dated 6.3.2003 the trial court has sentenced the appellant to undergo imprisonment for life and a fine of Rs.2,000/- and in default whereof further rigorous imprisonment for two months for the offence under Section 302 IPC.

(2.) Brief facts of the case, as have been noted by the learned Additional Sessions Judge in the impugned judgment, are :

(3.) Prosecution had sought to establish its case on examination of 21 witnesses. Of these, PW-2 and PW-4 are the so-called star witnesses. It is PW-2. Sanjay Kumar, who states that on 20.5.2000 he was working as a helper on a Chartered bus No.DL-IP-8662 and at about 6.45 p.m. while bus was proceeding from Nand Nagri for Ajmeri Gate, when it reached Yamuna Vihar Bus Stand, the bus slowed down as there was a traffic jam. In the meantime 5-6 persons boarded the bus from the front gate and sat on the separate seats in the bus. On enquiry, one of them replied that they would alight from the bus at some distance. This witness was sitting in the cabin of the bus which was being driven by Anil Anand. When the bus crossed the red light of Khajoori, driver of the bus noticed that somebody had opened the rear door of the bus and all the boys alighted. This witness further said that when he went to close the rear door of the bus, he noticed that one boy was bleeding. The boy got up and fell. This witness further states that he and driver removed the injured boy from the bus and laid him on the pavement. Injured person had also boarded the bus along with the other boys. Lots of people gathered and someone informed the Police. Witness goes on to say that persons who had boarded the bus were between the age group of 20-22 years. One of them had broken teeth and another bandage on his right hand. The statement of this witness was recorded on the spot which is Ex.PW 2/A. The injured person expired. Personal search of the deceased was conducted by the Police, one HMT writ watch in a broken condition, one packet of cigarette and 2 or 4 rupees etc were recovered. The same was taken in possession which is Ex.PW 2/B. Thereafter, he goes on to say that the dead body was taken to PS Khajoori Khas. On 3.6.2000, he joined investigation and accompanied 7-8 police officials to Vishnu Garden where he identified one person sitting on the wall who was involved in the incident of killing in the bus. The said accused was Jitender. Jitender was arrested and personal search conducted but nothing was recovered from his person. On further interrogation, Jitender made disclosure statement PW 2/G and got recovered blood stained shirt Ex.P-1 taken into possession vide memo Ex.PW2/H. He further goes on to say that during investigation this accused Jitender discloses the name of other co-accused. On 6.6.2000, the witness was called to the Police Station and saw Mukesh present there. Mukesh was identified as being one of the persons who boarded the bus on 20.5.2000 along with Jitender. In cross-examination, witness states that the driver of the bus was also called to the Police Station along with him. He had also accompanied the Police when accused Jitender was arrested. Witness further states that he did not notice any weapon in the hands of any of those 5-7 persons who had boarded the bus. He also states that he did not see Jitender actually stabbing the deceased. He also states that nothing was found in the personal search of accused Mukesh. Nothing was pointed out by Mukesh nor anything was recovered from the possession of Mukesh in his presence. Witness also states that he did not know who were the other five persons. He also says that he cannot tell as to who out of 6-7 person might have stabbed the deceased. On further cross- examination, the witness states that all the 6-7 boys who boarded the bus were wearing pants and shirts. He states that he does not remember the colours of those pants and shirts. He also says that driver had signed on all the papers on which this witness had signed.