Delhi High Court
Sunil vs State on 28 July, 2009
Author: Pradeep Nandrajog
* 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 1 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.
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.
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
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
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
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
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
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 H.No.355
(Mangat (Ramesh
Ram) Chand)
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.
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
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
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
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
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
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-
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
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 of Anil and Vijay.
Needless to state, the thrust of the defence is that all
aforenoted witnesses save and except Shakeel Ahmed PW-17
are interested witnesses and hence should be disbelieved.
29. 16 other witnesses of the prosecution, namely
Hamid Mohd. PW-23, Anwari PW-29, Gulshekh PW-30, Mohini
Devi PW-33, Matloob Ali PW-34, Pradeep PW-35, Chanderkala
PW-36, Ramdev PW-37, Zubeda PW-38, Salma PW-39,
Smt.Maryam PW-40, Smt.Bunda PW-41, Naim PW-42, Jafar PW-
43, Vasudev PW-44 and Smt.Sateshwari PW-46 were also
examined. We need not note the detailed testimony of the
said witnesses save and except to note that as per PW-23, PW-
29, PW-33, PW-37, PW-38, PW-39, PW-40, PW-41, PW-42, PW-
43, PW-44 and PW-46 they were present at Gali No.300 on
11.11.1998 at around 3:00/3:30 PM and due to indiscriminate
firing received gun shot injuries. The other witnesses simply
stated that they received gun shot injuries at around 3:00 PM
on 11.11.1998. Said witnesses have not stated the place
where they received the injuries. It is also important to note
that all said witnesses are residents of D Block and E Block,
Jahangir Puri. We may also note that Chanderkala PW-36
additionally deposed that she had witnessed a quarrel
between Satpal and dhobis of Gali No.300 pertaining to Seema
being teased by son of Satpal. We may note that Seema, as
per the defence witnesses is the daughter of Shri Kishan i.e.
she is the niece of Babu Ram.
30. In defence the appellants examined 15 witnesses
out of which 14 i.e. DW-1 to DW-14 claimed to be eye-
witnesses and the last witness i.e. DW-15 was a formal
witness. He i.e. Const.Virender simply produced the record
and deposed that FIR No.562/1998, Ex.PW-19/D3 (also
exhibited as Ex.DW-15/A) was registered at the police station.
31. Sushila Devi wife of accused Shri Kishan, DW-1,
deposed that her daughter Seema returned home from school
on 11.11.98 at about 2:00 PM. When Seema went to answer
the call of nature at the Government toilet, Ganesh son of
Satpal jumped from the male side of the toilet to the female
side and attempted to outrage the modesty of Seema. He tore
the sleeve of her shirt from the shoulder. Seema informed this
to her i.e. Sushila. An altercation ensued. An armed mob lead
by Lala Satpal, his family members and Mangat Ram
surrounded their house and tried to pull them out by catching
their hair. In order to save her and her daughter Seema from
the mob, her brother Babu Ram intervened and took them to
his house No.D-366, Gali No.400. The mob, some members
whereof had kerosene bottles in their hand surrounded the
house of her brother and tried to break into the house. Some
pelted stones at the house of her brother. Sensing danger, her
brother Babu Ram took them to the roof of his house. The
mob persisted in their acts of arson and rioting. To save them
and his house, Babu Ram fired in the air to scare away the
mob which continued to attack his house, compelling him to
fire at the unruly mob. Some members of the mob entered
and ransacked the house. Anil and Vijay as also 26 other
persons in the mob received injuries.
32. Seema DW-7 daughter of accused Shri Kishan and
Sushila DW-1, deposed that on the day of the incident, at
about 12:30 PM she went to the public urinal to answer the call
of the nature. Ganesh tried to outrage her modesty. She told
this to her mother and in the meantime Ganesh along with
Kale and Khuji also reached her house, and started quarreling
with her mother. Her maternal uncle, accused Babu Ram,
came to their rescue and took her mother and herself with
him. A crowd, armed with swords, lathis, etc, gathered in front
of her uncle‟s house, and tried to break in. Babu Ram went to
the roof and fired in the air to disperse the mob.
33. Raghubir Singh DW-2 deposed that on 11.11.1998
at about 4:00 PM, a crowd gathered on the street. He came out
of his house and saw a quarrel in Gali No.400. He saw some
persons dragging Sushila and Seema. Babu Ram took Sushila
and Seema with him and locked them in a room of his house.
There was commotion all around and people armed with lathis
and dandas pelted stones at the house of Babu Ram. Babu
Ram went to the roof of his house and started firing. On
hearing the noise of firing, people started running but after
some time again collected there.
34. Chattar Singh DW-3 deposed that on 11.11.1998, at
around 4:00 PM he saw some persons, which included Satpal,
quarreling with Seema and Sushila. Babu Ram intervened and
in order to save them, took Seema and Sushila to his house.
The mob followed Seema and Sushila in order to assault them.
The mob was armed with lathis, dandas, etc. Babu Ram went
to the roof of his house and fired in the air in order to disperse
the crowd. However, the crowd became violent and started
pelting stones. The crowd tried to break open the door of the
house of Babu Ram. Babu Ram again fired in the air and the
crowd dispersed.
35. Mahender Singh DW-4 deposed that on 11.11.1998,
at around 4:00 PM, he heard noises and saw 100/125 people
gathered, armed with lathis, sariya, etc. surrounding the house
of Sushila, sister of accused Babu Ram. Lala Satpal and his
son had caught hold of Seema and Sushila by their hair and
were saying "aaj inko nahi chhoregein". Accused Babu Ram
came and saved Sushila and Seema and escorted them to his
house. The crowd pursued them. Accused Babu Ram bolted
the door of his house from inside and went to the roof. The
crowd tried to break open the door of the house of Babu Ram
and pelted stones. Apprehending danger to his life Babu Ram
fired from his gun. Some people tried to climb into his house.
Babu Ram retaliated by firing on the road in order to disperse
the crowd. But, the public did not leave the spot and again
attacked the house compelling Babu Ram to again fire on the
road.
36. Mehboob Ali DW-5 deposed that on 11.11.1998 at
about 4:00 PM, he heard noises and saw that about 100-125
persons had surrounded the house of Sushila, sister of Babu
Ram. The crowd was venting its anger towards Sushila and
Seema saying that they should not be spared today. Babu
Ram reached there and escorted Sushila and Seema to his
house i.e. House No.D-366, Gali 400. The public started
following them. Babu Ram bolted the door of his house from
inside. The people started pelting stones and ransacked the
house. Babu Ram along with Sushila and Seema climbed the
roof of his house and fired at the public which made them
angry. The public then tried to climb the roof and in order to
stop them, Babu Ram fired on the road.
37. Raj Kumar DW-6 deposed that he was passing by
the place of incident and saw a crowd gathered on Gali 300
and 400. The crowd had surrounded a house and Lala Satpal,
Mangat, Anil and Ganesh were trying to outrage the modesty
of a girl and a woman. Babu Ram came to the place and
saved the girl and the woman by escorting them to his house.
This made the public angry. Babu Ram entered his house and
bolted the door from inside. The public started pelting stones
and tried to ransack the house of Babu Ram. Babu Ram
climbed the roof of his house and fired in the air in order to
disperse the crowd. The crowd got flared up and tried to climb
the roof. Babu Ram fired on the road at which the crowd
dispersed but came back soon after and started attacking the
house. Babu Ram again fired at the crowd which retaliated by
hurling petrol bombs etc.
38. Udaiveer DW-8 deposed that he runs a shop in Gali
300 and 400. On the day of the incident he saw a crowd of
about 100-125 people gathered outside the house of Sushila,
wife of Shri Kishan. Lala Satpal and his son Ganesh and Anil
had caught Sushila and Seema by their hair and in the
meantime accused Babu Ram arrived. He intervened and
escorted Sushila and Seema to his house. The crowd followed
them to his house and turned violent. Stones were thrown
towards the house of Babu Ram and the crowd tried to break
the door of Babu Ram‟s house compelling Babu Ram fire
towards the road to scare away the mob.
39. Narender Pal DW-9 deposed on the same lines as
DW-8.
40. Satish DW-10, Mukesh DW-11 and Abdul DW-12
deposed pari-materia; stating that a crowd had gathered
outside the house of Sushila and was threatening to pull out
Seema, daughter of Sushila from her house. Babu Ram
intervened and took Sushila and her daughter to his house.
The crowd surrounded the house of Babu Ram and threatened
to set it on fire compelling Babu Ram to fire shots in the air to
scare away the crowd. Siya Ram DW-13 deposed that on the
day of the incident some people gave beating to a lady and
her daughter. The accused came and took the lady and the
daughter. Accused Babu Ram went to the roof and when the
crowd pelted stones, he fired. Jai Pal DW-14 deposed that on
the day of the incident he saw people pelting stones at the
house of Shri Krishan. Public was trying to snatch the wife of
Shri Krishan and his daughter. Two people died. Babu Ram
intervened to save the lady and her daughter and fired from
his gun while standing on the roof.
41. It may be noted that all the defence witnesses refer
only to the presence of accused Babu Ram and Sushila and
Seema, and make no reference to the presence of the other
accused persons.
42. When examined under Section 313 Cr.P.C. all the
accused save and except accused Babu Ram denied their
presence at the spot. Babu Ram admitted his presence at the
spot and that he fired from his gun but claimed that he did so
in self-defence.
43. Vide impugned judgment and order dated
18.11.2004, the learned Trial Judge has convicted the accused
persons for the offence punishable under Section 302/34 IPC
pertaining to the death of Anil and Vijay. They have been
convicted for the offence punishable under Section 307/34 IPC
for attempting to murder Mangat Ram and other persons who
received gun shot wounds.
44. To summarize, the reasoning of the learned Trial
Judge is the discrepancy in the testimony of the defence
witnesses pertaining to the weapons in the hands of the unruly
crowd. The learned Trial Judge has noted that some witnesses
have spoken of the crowd being armed with swords and
knives. Some have deposed that the crowd was armed with
lathis and dandas. Some have deposed that the crowd was
having sarias (iron rods). Some have deposed that the crowd
had kerosene/petrol bombs. The learned Trial Judge has
further held that there is no evidence of any petrol or kerosene
being detected from near or outside the house of Babu Ram.
The learned Trial Judge has further held that the defence
witnesses had not spoken about accused Sunil, Ravinder, Vijay
and Shri Krishan whose presence and participation stands
established by the witnesses of the prosecution and that there
was no reason to doubt their presence at the spot or the
testimony of the prosecution witnesses. The fact that they had
received gunshot injuries was proof of their presence and that
nothing was brought out in the cross-examination to discredit
said witnesses who have corroborated each other. The plea of
self-defence has been rejected by the learned Trial Judge in
view of the testimony of the witnesses of the prosecution, as
per whom the accused were the aggressors and according to
whom, the house of accused Babu Ram was never surrounded
by any mob, much less threatened to be set on fire.
45. In our opinion there is hardly much scope for raising
a dispute pertaining to the defence of Babu Ram of having
acted in self-defence. The defence is a sham.
46. The site plan, Ex.PW-56/A, prepared by Inspector
Sajan Singh and the site plan to scale Ex.PW-7/A prepared by
Tirath Raj Singh PW-7, to which we have made a detailed
reference in para 11 above, show that deceased Vijay and Anil
were shot dead at street No.300. Mangat Ram PW-2 also was
shot at in street No.300. PW-8, PW-9, PW-13, PW-14, PW-15
and PW-27 have categorically stated that they received the
gunshot injuries when they were in street No.300. These
witnesses may be related to the two young boys who were
shot dead as also to Mangat Ram, the complainant, but said
fact alone would not render suspect their testimonies. The
said six witnesses are all residents of block-D and have their
houses on gali No.300 and thus their presence at the spot is
natural. That all of them received gunshot wounds itself
establishes their presence at the spot. A related witness is not
an interested witness on account of being the relation of the
complainant. An interested witness is one who has a motive to
secure the false conviction of the accused and to achieve the
same deposes falsely. As held in the decision reported as
State of Rajasthan v. Smt Kalki & Anr (1981) 2 SCC 752:-
"As mentioned above, the High Court has declined
to rely on the evidence of P.W.I on two grounds: (1)
she was a "highly interested" witness because she
"is the wife of the deceased", and (2) there were
discrepancies in her evidence. With respect, in our
opinion, both the grounds are invalid. For, in the
circumstances of the case, she was the only and
most natural witness; she was the only person
present in the hut with the deceased at the time of
the occurrence, and the only person who saw the
occurrence. True, it is she is the wife of the
deceased; but she cannot be called an 'interested'
witness. She is related to the deceased. 'Related' is
not equivalent to 'interested'. A witness may be
called 'interested' only when he or she derives
some benefit from the result of a litigation; in the
decree in a civil case, or in seeing an accused
person punished. A witness who is a natural one
and is the only possible eye witness in the
circumstances of a case cannot be said to be
'interested'. In the instant case P.W. 1 had no
interest in protecting the real culprit, and falsely
implicating the respondents."
47. Besides, the other prosecution witnesses namely
PW-17, PW-23, PW-29, PW-30, PW-33, PW-34, PW-35, PW-36,
PW-37, PW-38, PW-39, PW-40, PW-41, PW-42, PW-43, PW-44
and PW-46 are not related to the deceased or Mangat Ram.
Said witnesses have deposed that they received gunshot
wounds on 11.11.1998 at around 3/3:30 PM. Out of said 17
witnesses, PW-23, PW-29, PW-33, PW-37, PW-38, PW-39, PW-
40, PW-41, PW-42, PW-43, PW-44 and PW-46 have
categorically deposed that they were present at gali No.300
when they received the gunshot wounds. The other witnesses
have not stated as to where they were standing when they
received the gunshot wounds. PW-23, PW-29, PW-33, PW-37,
PW-38, PW-39, PW-40, PW-41, PW-42, PW-43, PW-44 and PW-
46 are not related to each other or to the deceased or to any
other witness of the prosecution. They would have no motive
to falsely depose. The testimony of said witnesses establishes
that the firing was directed towards people who were on street
No.300. The house of Babu Ram is abutting street No.400,
which as noted in para 11 above, runs parallel to street No.300
and the two streets are separated by a row of houses
constructed back to back. In no way can an unruly crowd
which has assembled on street No.300 set on fire any house
which is on street No.400. Further, the falsity in the testimony
of the defence witnesses who claim that Babu Ram, acting in
defence of his house and himself and his family members,
fired from the roof of his house is apparent from the fact that
standing on the roof of house No.366 which is the house of
Babu Ram, it is just not possible to hit anybody standing on
street No.300. A little bit of geometry would show the same.
Standing on any point at the roof of the house of Babu Ram,
the straight line connecting the said spot from any portion of
his roof to any spot on street No.300 would pass through the
roof and the walls of house No.D-355, D-356 and D-357
abutting street No.300 on its northern boundary.
48. Besides, there is no evidence of any kerosene oil or
petrol being detected outside the house of Babu Ram. This
also falsifies the defence version that the riotous mob was
threatening to burn down the house of Babu Ram.
49. No doubt, FIR Ex.PW-19/D-3 has indeed been
registered at 9:10 PM which evidences rioting in D-Block,
Jahangir Puri, but therefrom it does not stand proved that the
defence version is correct. It is also true that photographs of
the house of Babu Ram show that the door of his house has
been broken and brick bats have been thrown towards his
house.
50. What has happened is evident. After Babu Ram
fired indiscriminately and shot dead two persons on the street
and injured 26 more on the street i.e. street No.300, it was
apparent that the crowd retaliated. The site plan Ex.PW-7/A
shows that the houses on the streets of D-Block Jahangir Puri
have a front of 10‟ and a depth of 23‟.10". Jahangir Puri is a
resettlement colony where slum dwellers have been relocated.
Tiny plots admeasuring 10‟ x 23‟.10" have been allotted to the
rehabilitated slum dwellers by the government. The
population density in the colony is extremely heavy. Huge
crowds can gather in densely populated areas within seconds.
It is apparent that the angry crowd sought vengeance against
Babu Ram after Babu Ram had created mayhem in the area.
That 16 rounds were fired by Babu Ram is not disputed by him.
By no stretch of imagination can firing of 16 rounds be
belittled. If a man fires 16 rounds on a crowd causing death of
2 and injuring 26 others, the crowd is bound to retaliate.
51. From the evidence of the witnesses of the
prosecution it is apparent that some quarrel regarding eve
teasing had taken place on street No.300 involving the families
of Satpal and accused Shri Kishan who is the brother-in-law of
Babu Ram. Even the defence witnesses have spoken of an
eve-teasing incident. The difference is, as per the defence
witnesses the victim of the eve teasing incident was Seema,
the daughter of Shri Kishan and as per the prosecution
witnesses the aggressors were the family members of Shri
Kishan. There is commonality in the testimony of both sets of
witnesses that Babu Ram left street No.300 taking along with
him his sister Sushila and Seema. The difference in the two
versions is regarding the presence of the co-accused. As per
the witnesses of the prosecution, some of them have spoken
of all co-accused being present at street No.300, with some
excluding the presence of co-accused Vijay. It is thus apparent
that whatever be the cause of the spat on the public street,
Babu Ram retrieved himself safely from the street and reached
his house.
52. We have already discounted the defence version, in
view of evidence on record, of the crowd following Babu Ram
and surrounding his house. We have already held that the
evidence establishes indiscriminate firing by Babu Ram on the
persons in street No.300 and the fact that his house abuts
street No.400 evidences that the firing was not to scare the
crowd which had surrounded the house of Babu Ram. We
have already held that for anyone to be standing on street
No.300 it is just not possible to set on fire any house on street
No.400. We have already held that by standing on any spot on
the roof of Babu Ram‟s house it was just not possible to shoot
any person on street No.300.
53. The inevitable conclusion is, that as claimed by the
witnesses of the prosecution, Babu Ram jumped from the roof
of his house on to the roof of House No.D-354 of Mangat Ram
and standing at the roof of Mangat Ram‟s house at the spot
marked „4‟ on the site plan Ex.PW-7/A, indiscriminately fired 16
shots, all directed downwards on the persons in street No.300,
with specific targets being Mangat Ram and his family
members against whom Babu Ram had a grievance of being
the sympathizers of Lala Satpal.
54. Besides, the right of self-defence is a self-limiting
right and authorizes the person acting in self-defence to use
only such force which is reasonable and commensurate with
the danger to body or to property. No doubt, defence of a
dwelling house stands on a different footing and law has
always looked with special indulgence on a man who is
defending his dwelling against those who try to unlawfully
evict him, for: the house of everyone is to him as his castle
and fortress.
55. The indiscriminate firing by Babu Ram cannot be
justified under any circumstances.
56. The testimony of the witnesses of the prosecution
and the defence, though with a difference qua the origin of a
spat on the public street, establishes a public spat on a public
street involving the families of Shri Krishan and Lala Satpal.
The evidence, as held above, establishes that Babu Ram fired
from the roof of the house of Mangat Ram and targeted people
on street No.300 where the spat between the family members
of Shri Krishan and Lala Satpal took place. It is apparent that
Babu Ram was led into firing because he learnt of the quarrel
going on in street No.300. It is obvious that Babu Ram had
come to aid of his sister and his brother-in-law. It is obvious
that Babu Ram has acted with vengeance and not to protect
himself or his house. It is not the case of Babu Ram that his
sister‟s house or the family members of his sister who were on
street No.300 were in danger and he did the firing to protect
them.
57. Looked from any angle whatsoever, Babu Ram
cannot escape the consequence of his acts.
58. Turning to the incriminatory evidence against the
co-accused we find that in his statement Ex.PW-2/A, made
soon after the incident, Mangat Ram has not named Vijay,
much less ascribed any role to Vijay. Only while deposing in
Court, for the first time, Mangat Ram talked about the
presence of Vijay, but has only stated that when Babu Ram
fired on being exhorted by Shri Krishan and Sunil, Vijay was
seen standing on the roof. Ashok Kumar PW-8 has deposed
that when Babu Ram and the other co-accused left street
No.300 to go to the house of Babu Ram, on the way Vijay
joined them. He ascribes a role to Vijay when Babu Ram fired;
role being of exhorting in the company of Ravinder that
supporters of Satpal should not be spared. Kashmiri Lal PW-9
does not talk of Vijay‟s presence on street No.300 or of
anything done or spoken of by Vijay. He merely says that he
saw Vijay on the roof of Mangat Ram‟s house when Babu Ram
fired. Similarly, even Darshana PW-13 speaks of seeing Vijay
on the roof of Mangat Ram‟s house. Even she does not speak
of his presence in street No.300 or of saying or doing anything
while standing on the roof of the house of Mangat Ram.
Similar is the testimony of Raj Kumar PW-14, pertaining to
Vijay as also is the testimony of Sushil Kumar PW-15.
59. We are thus inclined to give the benefit of doubt to
Vijay qua whom only one witness of the prosecution has
alleged of having participated in the firing. Vijay being an un-
officious bystander; simply witnessing the firing cannot be
ruled out. In any case, if not a clean acquittal, Vijay is entitled
to the benefit of doubt.
60. Qua Sunil, Shri Krishan and Ravinder it has to be
noted that Mangat Ram, Ashok Kumar, Kashmiri Lal, Darshana,
Raj Kumar and Sushil Kumar have categorically deposed that
they were present in street No.300 along with Babu Ram. All
of them have stated that said three persons left in the
company of Babu Ram. The said witnesses have ascribed
roles to the three, albeit with a slight variance. The variance is
that Mangat Ram, Sushil Kumar and Ashok Kumar claim that
Shri Krishan and Sunil exhorted Babu Ram to fire from the roof
of his house, Raj Kumar says that Shri Krishan alone exhorted.
Similarly, the role ascribed to co-accused Narender is at slight
variance in the testimony of the witnesses of the prosecution.
But, the slight variations are immaterial.
61. Where there are a large number of accused and a
large number of witnesses, it is bound to happen that there
would occur variations in the testimony of the witnesses as to
which accused exactly did what. The reason is obvious. With
the passage of time after an incident takes place, memory
fades. The core of the events pertaining to an incident is
remembered by the person. At the fringes, memory fades. In
the decision reported as Anna Reddy Sambasiva Reddy & Ors.
Vs. State of Andhra Pradesh 2009 (6) SCALE 223 it was
observed:
"... looking to the nature of the incident where large
number of persons attacked D-1, D-2 PW-1, PW-2
and PW-3, it would not have been possible for PW-1
or PW-3 to attribute specific injury individually to
each accused. How could it be possible for any
person to recount with meticulous exactitude the
various individual acts done by each assailant? Had
they stated so, their testimony would have been
criticized as highly improbable and unnatural. The
testimony of eye-witnesses carries with it the
criticism of being tutored if they give graphic details
of the incident and their evidence would be assailed
as unspecific, vague and general if they fail to
speak with precision. The golden principle is not to
weigh such testimony in golden scales but to view it
from the cogent standards that lend assurance
about its trustfulness."
62. In the decision reported as Masalti V. State Of Uttar
Pradesh AIR 1965 SC 202 it was observed:
"... Where a crowd of assailants who are members
of an unlawful assembly proceeds to commit an
offence of murder in pursuance of the common
object of the unlawful assembly, it is often not
possible for witnesses to describe accurately the
part played by each one of the assailants. Besides,
if a large crowd of persons armed with weapons
assaults the intended victims, it may not be
necessary that all of them have to take part in the
actual assault."
63. In the decision reported as State of Himachal Pradesh v.
Lekh Raj & Anr AIR 1999 SC 3916 the following was observed:-
"Discrepancy has to be distinguished from
contradiction. Whereas contradiction in the
statement of the witness is fatal for the case, minor
discrepancy or variance in evidence will not make
the prosecution's case doubtful. The normal course
of the human conduct would be that while narrating
a particular incidence there may occur minor
discrepancies, such discrepancies in law may
render credential to the depositions. Parrot like
statements are disfavoured by the courts. In order
to ascertain as to whether the discrepancy pointed
out was minor or not or the same amounted to
contradiction, regard is required to be had to the
circumstances of the case by keeping in view the
social status of the witnesses and environment in
which such witness was making the statement. This
Court in Ousu Varghese v. State of Kerala held that
minor variations in the accounts of the witnesses
are often the hallmark of the truth of their
testimony. In Jagdish v. State of Madhya Pradesh
[1981] SCC (Crl.) 676, this Court held that when the
discrepancies were comparatively of a minor
character and did not go to the root of the
prosecution story, they need not be given undue
importance. Mere congruity or consistency is not
the sole test of truth in the depositions. This Court
again in State of Rajasthan v. Kalki and Anr. held
that in the depositions of witnesses there are
always normal discrepancy, however, honest and
truthful they may be. Such discrepancies are due to
normal errors of observation, normal errors of
memory due to lapse of time, due to mental
disposition such as shock and horror at the time of
occurrence, and the like. Material discrepancies are
those which are not normal, and not expected of a
normal person."
64. The criminal appeals filed by Sunil, Shri Krishan,
Ravinder and Babu Ram being Crl.Appeal No.962/2004,
Crl.Appeal No.977/2004, Crl.Appeal No.981/2004 and
Crl.Appeal No.61/2005 respectively are accordingly dismissed.
65. Crl.Appeal No.14/2005 filed by Vijay is allowed. The
conviction of Vijay for the offences punishable under Section
302/34 IPC and Section 307/34 IPC is set aside. He is
acquitted of the charges framed against him. Since he is on
bail, his bail bond and surety bonds are discharged.
66. Appellant Babu Ram is in jail. Appellants Sunil, Shri
Krishan and Ravinder have been admitted to bail pending
hearing of their bails. Since the appeals filed by them have
been dismissed their bail bonds and surety bonds are
cancelled. They are directed to surrender and suffer the
sentence imposed upon them, which needless to state is to
undergo imprisonment for life.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
JULY 28, 2009
mm / DHARMENDER
