Delhi District Court
State vs Sat Prakash Tyagi on 6 August, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 28366/2016 CNR No. DLCT01-001185-2012
FIR No. 227/2011
U/Sec. 302/325/323/427/34 IPC
P.S. Timarpur
STATE VERSUS SAT PRAKASH TYAGI AND ORS.
(i) SC No. of the case : 28366/2016
(ii) Date of commission of offence : 18.10.2011
(iii) Name, parentage and address : 1. Sat Prakash Tyagi
of accused S/o Shyam Lal Tyagi
R/o Main Road Gali
No.8, Village
Wazirabad, Delhi
2. Mohit Tyagi
S/o S. P. Tyagi
R/o Main Road Gali
No.8, Village
Wazirabad, Delhi
3.Ram Kr.Tyagi
S/o S. L. Tyagi
R/o Main Road Gali
No.8, Village
Wazirabad, Delhi
4. Pappu @ Jai
Prakash Tyagi
S/o S. L. Tyagi
R/o Main Road Gali
No.8, Village
Wazirabad, Delhi
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(iv) Offence complained of : 302/304/308/427/34 IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : ACQUITTAL
Date of Institution : 30.03.2012
Date of Judgment reserved on : 09.07.2025
Date of Judgment : 06.08.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh. Devender
Singh vide Ex.PW1/A and the FIR Ex.PW18/A records the time of
commission of offence at 6:00 PM on 18.10.2011. The time at which the
information was received at PS as recorded in FIR is 00:05 hours on
19.10.2011. The complainant/PW-1 is farmer by profession. On 18.10.2011
around 7:30 AM the son of PW-1 Gaurav was beaten at Gali No.8, Village
Wazirabad Delhi on which PW-1 had called at 100 number. Gaurav was
treated at Aruna Asaf Ali Hospital. PW-1 heard from Gaurav that accused
Sat Prakash, Mohit son of Sat Prakash had beaten Gaurav in front of their
house at Gali No.8, Village Wazirabad, Delhi. Around 5:00 PM the
complainant with other person met SHO for taking action on which ASI
Narender Singh and Ct. Girish were sent with complainant and the otherSC No. 28366/2016
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person to identify the person who had given beating to Gaurav. They were
sent at Gali No.8, Village Wazirabad, Delhi. The complainant, son of the
complainant namely Gaurav, Deepak, Virender and elder brother of
complainant Sh. Brahm Prakash went on Scorpio vehicle No.HR51 AN
2018 and police staff also went with them. Accused Sat Prakash came out
of his house and the complainant party started asking accused Sat Prakash
about the morning incident of beating of Gaurav. Suddenly the son of
accused Sat Prakash namely Mohit, Ram Kumar and Pappu came out of
their house. The victim Gaurav after seeing Mohit had identified him and
told that he had gave beating to Gaurav in the morning. When police
official started taking accused Mohit to police station for inquiry then
accused Sat Prakash, accused Ram Kumar, accused Mohit and Pappu
started abusing the complainant party. Accused Sat Prakash and Pappu had
taken out wooden sticks and rods. The accused Sat Prakash had hit the
complainant on head with the wooden stick and also other places on the
body of the complainant. The accused Mohit, Ram Kumar, Pappu and Sat
Prakash had hit Deepak, Brahm Prakash and Vijender with wooden sticks
and rods. In the meanwhile other police staff reached there and rescued
them. The accused persons had also damaged the Scorpio vehicle of the
complainant party. Deepak, Brahm Prakash and Vijender had received
serious injuries who were admitted at Trauma Centre.
2. ASI Narender Singh from PS Timar Pur, Delhi had received DD
No.11A from the Duty Officer who with Ct. Vikas had went at the spot.
During investigation they had received MLC No. 2134/11 of Gaurav. The
injuries were simple and blunt in nature. Public person had gathered and
accused persons ran away from the spot. Injured were taken to Trauma
Centre Hospital. Ct. Girish and other staff were left at the spot.
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3. After investigation IO had filed the chargesheet and accused person
were summoned all of whom were charged under Section 302/34 IPC,
under Section 304/308/427/34 IPC to which all the accused pleaded not
guilty. The prosecution had led PW-1 to PW-22/Inspt. Rajender Kumar the
total number of prosecution witness against all the accused person.
Statement of Accused was recorded on 08.02.2022 in which all the accused
preferred to lead evidence in defence. The accused had brought evidence in
defence as DW-1 to DW-12 and vide separate statement of all the accused
the DE stands closed on 22.07.2023.
4. Final arguments are heard from both the parties and record perused.
4.1 Ld. Counsel for complainant has relied on following citations:
(1) Lakhwinder Singh Vs. State of Punjab 1992 CrlLJ 3958
(2) Dalip Singh & Ors. Vs. The State of Punjab AIR 1953 SC
364
(3) State of U.P. Vs. Anil Singh AIR 1988 SC 1998
(4) Appabhai & Anr. Vs. State of Gujarat AIR 1988 SC 696
(5) Abdul Sayeed Vs. State of Madhya Pradesh 2010 (4)
Crimes 86 (SC)
(6) State of U.P. Vs. Naresh & Ors. 2011 CrlLJ 21624.2 Ld. Counsel for accused has relied on following citations:
(1) Pruthiviraj Jayantibhai Vanol Vs. Dinesh Dayabhai Vala &
Ors. Manu/SC/0475/2021
(2) State of U.P. Vs. Wasif Haider & Ors.
Manu/SC/1448/2018
(3) Bhagwan Sahai & Ors. Vs. State of Rajasthan
Manu/SC/0669/2026
(4) Ashoo Surendernath Tewari Vs. Deputy Superintendent of
Police EOW, CBI & Anr. (2020) 9 SCC 636
(5) Nand Lal & Ors. Vs. The State of Chhattisgarh
Manu/SC/0230/2023SC No. 28366/2016
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(6) Suresh Thipmmpa Shetty Vs. The State of Maharashtra &
Sadashiv Seena Salian Vs. The State of Maharashtra
Manu/SC/0911/2023(7)Baban Shankar Daphal & Ors. Vs. The State of
Maharashtra Manu/SC/0099/2025
(8) Ram Kumar Tyagi Vs. State & Anr. 1995 JCC 12
(9) Kumar Vs. State of Karnataka 2000 (3) CC Cases (SC) 67
(10) Mahesh Vs. State 1997 JCC 441
(11) Pardeep Khatri & Ors. Vs. State of Delhi
Manu/DE/2809/2014
5. The Hon’ble High Court of Madhya Pradesh in case titled Suresh
Ahirwar vs State of M.P. on 22 June, 2022 (DB) in Criminal Appeal No. 51
of 2012 has laid down as under:
Hon’ble High Court of Madhya Pradesh in case titled Suresh
Ahirwar vs State of M.P. on 22 June, 2022 (DB) in Criminal
Appeal No. 51 of 2012 has laid down as under:
(8) Before adverting to the merits of case, it would be necessary to
dilate on the questions mentioned under for determination of resent
appeal are:-
(I) As to whether the cause of death of deceased falls within the
ambit of homicidal death or not?
(II) As to whether there was any intention of appellant for causing
the death of deceased or not ?
(9) It would be appropriate to throw light on relevant provisions of
Sections 299 and 300 of Indian Penal Code.
The Law Commission of United Kingdom in its 11th Report
proposed the following test :
“The standard test of ‘knowledge’ is, Did the person whose conduct
is in issue, either knows of the relevant circumstances or has no
substantial doubt of their existence?”
[See Text Book of Criminal Law by Glanville Wiliams (p.125)]
“Therefore, having regard to the meaning assigned in criminal law
the word “knowledge” occurring in clause Secondly of Section 300
IPC imports some kind of certainty and not merely a probability.
Consequently, it cannot be held that the appellant caused the injury
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with the intention of causing such bodily injury as the appellant
knew to be likely to cause the death of Shivprasad. So, clause
Secondly of Section 300 IPC will also not apply.”
The enquiry is then limited to the question whether the offence is
covered by clause Thirdly of Section 300 IPC. This clause, namely,
clause Thirdly of Section 300 IPC reads as under:-
”Culpable homicide is murder, if the act by which the death is
caused is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death.”
The argument that the accused had no intention to cause death is
wholly fallacious for judging the scope of clause Thirdly of
Section 300 IPC as the words “intention of causing death” occur in
clause Firstly and not in clause Thirdly. An offence would still fall
within clause Thirdly even though the offender did not intend to
cause death so long as the death ensues from the intentional bodily
injury and the injuries are sufficient to cause death of the deceased
in the ordinary course of nature. This is also borne out from
illustration (c) to Section 300 IPC which is being reproduced
below:-
“(c) A intentionally gives Z a sword-cut or club-wound sufficient to
cause the death of a man in the ordinary course of nature. Z dies in
consequence. Here A is guilty of murder, although he may not have
intended to cause Z’s death.”
Therefore, the contentions advanced in the present case and which
are frequently advanced that the accused had no intention of
causing death of deceased is wholly irrelevant for deciding
whether the case falls in clause Thirdly of Section 300 IPC.
(10) The scope and ambit of clause Thirdly of Section 300 IPC was
considered by the Supreme Court in the decision in Virsa Singh
Vs. State of Punjab, AIR 1958 SC 465 and the principle enunciated
therein explains the legal position succinctly. The accused Virsa
Singh was alleged to have given a single spear blow and the injury
sustained by the deceased was “a punctured wound 2″x =”
transverse in direction on the left side of the abdominal wall in the
lower part of the iliac region just above the inguinal canal. Three
coils of intestines were coming out of the wound.” After analysis
of the clause Thirdly, it was held: –
“The prosecution must prove the following facts before it can bring
a case under S. 300 “Thirdly”;
First, it must establish, quite objectively, that a bodily injury is
present; Secondly, the nature of the injury must be proved. These
are purely objective investigations.
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Thirdly, it must be proved that there was an intention to inflict that
particular bodily injury, that is to say, that it was not accidental or
unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry
proceeds further and,
Fourthly, it must be proved that the injury of the type, just
described, made up of the three elements set out above, is
sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has
nothing to do with the intention of the offender. Once these four
elements are established by the prosecution (and, of course, the
burden is on the prosecution throughout), the offence is murder
under S. 300 “Thirdly”. It does not matter that there was no
intention to cause death, or that there was no intention even to
cause an injury of a kind that is sufficient to cause death in the
ordinary course of nature (there is no real distinction between the
two), or even that there is no knowledge that an act of that kind
will be likely to cause death. Once the intention to cause the bodily
injury actually found to be present is proved, the rest of the enquiry
is purely objective and the only question is whether, as a matter of
purely objective inference, the injury is sufficient in the ordinary
course of nature to cause death.”
(11) In the case of Arun Nivalaji More vs. State of Maharashtra
(Case No. Appeal (Cri.) 1078-1079 of 2005), it has been observed
as under :-
“11. First it has to be seen whether the offence falls within the
ambit of Section 299 IPC. If the offence falls under Section 299
IPC, a further enquiry has to be made whether it falls in any of the
clauses, namely, clauses ‘Firstly’ to ‘Fourthly’ of Section 300 IPC.
If the offence falls in any one of these clauses, it will be murder as
defined in Section 300IPC, which will be punishable under Section
302 IPC. The offence may fall in any one of the four clauses of
Section 300 IPC yet if it is covered by any one of the five
exceptions mentioned therein, the culpable homicide committed by
the offender would not be murder and the offender would not be
liable for conviction under Section 302 IPC. A plain reading of
Section 299 IPC will show that it contains three clauses, in two
clauses it is the intention of the offender which is relevant and is
the dominant factor and in the third clause the knowledge of the
offender which is relevant and is the dominant factor. Analyzing
Section 299 as aforesaid, it becomes clear that a person commits
culpable homicide if the act by which the death is caused is done
(i) with the intention of causing death; or
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(ii) with the intention of causing such bodily injury as is likely to
cause death; or
(iii) with the knowledge that the act is likely to cause death.”
If the offence is such which is covered by any one of the clauses
enumerated above, but does not fall within the ambit of clauses
Firstly to Fourthly of Section 300 IPC, it will not be murder and
the offender would not be liable to be convicted under Section 302
IPC. In such a case if the offence is such which is covered by
clauses (i) or (ii) mentioned above, the offender would be liable to
be convicted under Section 304 Part I IPC as it uses the expression
“if the act by which the death is caused is done with the intention
of causing death, or of causing such bodily injury as is likely to
cause death” where intention is the dominant factor. However, if
the offence is such which is covered by clause (iii) mentioned
above, the offender would be liable to be convicted under Section
304 Part II IPC because of the use of the expression “if the act is
done with the knowledge that it is likely to cause death, but
without any intention to cause death, or to cause such bodily injury
as is likely to cause death” where knowledge is the dominant
factor.
12. What is required to be considered here is whether the offence
committed by the appellant falls within any of the clauses of
Section 300 IPC.
13. Having regard to the facts of the case it can legitimately be
urged that clauses Firstly and Fourthly of Section 300 IPC were not
attracted. The expression “the offender knows to be likely to cause
death” occurring in clause Secondly of Section 300 IPC lays
emphasis on knowledge. The dictionary meaning of the word
‘knowledge’ is the fact or condition of being cognizant, conscious
or aware of something; to be assured or being acquainted with. In
the context of criminal law the meaning of the word in Black’s Law
Dictionary is as under: –
“An awareness or understanding of a fact or circumstances; a state
of mind in which a person has no substantial doubt about the
existence of a fact. It is necessary … to distinguish between
producing a result intentionally and producing it knowingly.
Intention and knowledge commonly go together, for he who
intends a result usually knows that it will follow, and he who
knows the consequences of his act usually intends them. But there
may be intention without knowledge, the consequence being
desired but not foreknown as certain or even probable. Conversely,
there may be knowledge without intention, the consequence being
foreknown as the inevitable concomitant of that which is desired,
but being itself an object of repugnance rather than desire, and
therefore not intended.”
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In Blackstone’s Criminal Practice the import of the word
‘knowledge’ has been described as under: –
‘Knowledge’ can be seen in many ways as playing the same role in
relation to circumstances as intention plays in relation to
consequences. One knows something if one is absolutely sure that
it is so although, unlike intention, it is of no relevance whether one
wants or desires the thing to be so. Since it is difficult ever to be
absolutely certain of anything, it has to be accepted that a person
who feels ‘virtually certain’ about something can equally be
regarded as knowing it.”
(12) Section 299 of Indian Penal Code runs as under :-
“299. Culpable homicide.–
Wheoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury
as is likely to cause death, or with the knowledge that he is likely
by such act to cause death, commits the offence of culpable
homicide.”
(13) Section 299 of IPC says, whoever causes death by doing an
act with the bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the
offence of culpable homicide. Culpable homicide is the first kind
of unlawful homicide. It is the causing of death by doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is
likely to cause death; or
(iii) an act with the knowledge that it is was likely to cause death.
Without one of these elements, an act, though it may be by its
nature criminal and may occasion death, will not amount to the
offence of culpable homicide. ‘Intent and knowledge’ as the
ingredients of Section 299 postulate, the existence of a positive
mental attitude and the mental condition is the special mens rea
necessary for the offence.The knowledge of third condition
contemplates knowledge of the likelihood of the death of the
person. Culpable homicide is of two kinds :
one, culpable homicide amounting to murder, and another, culpable
homicide not amounting to murder.
In the scheme of the Indian Penal Code, culpable homicide is
genus and murder is species. All murders are culpable homicide,
but not vice versa. Generally speaking, culpable homicide sans the
special characteristics of murder is culpable homicide not
amounting to murder. In this section, both the expressions ‘intent’SC No. 28366/2016
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and ‘knowledge’ postulate the existence of a positive mental
attitude which is of different degrees.
(14) Section 300 of Indian Penal Code runs as under :-
“300. Murder.– Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or–
Secondly.– If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or–
Thirdly.– If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or–
Fourthly.– If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death
or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or
such injury as aforesaid.”
(15) ”Culpable Homicide” is the first kind of unlawful homicide. It
is the causing of death by doing ;
(i) an act with the intention to cause death;
(ii) an act with the intention of causing such bodily injury as is
likely to cause death; or,
(iii) an act with the knowledge that it was likely to cause death.
(16) Indian Penal Code recognizes two kinds of homicide :
(1) Culpable homicide, dealt with between Sections 299 and 304 of
IPC
(2) Not-culpable homicide, dealt with by Section 304-A of IPC.
There are two kinds of culpable homicide;
(i) Culpable homicide amounting to murder (Section 300 read with
Section 302 of IPC), and
(ii) Culpable homicide not amounting to murder (Section 304 of
IPC).
(17) A bare perusal of the Section makes it crystal clear that the
first and the second clauses of the section refer to intention apart
from the knowledge and the third clause refers to knowledge alone
and not the intention. Both the expression “intent” and
“knowledge” postulate the existence of a positive mental attitude
which is of different degrees. The mental element in culpable
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is one of intention and knowledge. If that is caused in any of the
aforesaid three circumstances, the offence of culpable homicide is
said to have been committed.
(18) There are three species of mens rea in culpable homicide
(1) An intention to cause death;
(2) An intention to cause a dangerous injury;
(3) Knowledge that death is likely to happen.
(19) The fact that the death of a human being is caused is not
enough unless one of the mental state mentioned in ingredient of
the Section is present. An act is said to cause death results either
from the act directly or results from some consequences
necessarily or naturally flowing from such act and reasonably
contemplated as its result. Nature of offence does not only depend
upon the location of injury by the accused, this intention is to be
gathered from all facts and circumstances of the case. If injury is
on the vital part, i.e., chest or head, according to medical evidence
this injury proved fatal. It is relevant to mention here that intention
is question of fact which is to be gathered from the act of the party.
Along with the aforesaid, ingredient of Section 300 of IPC are also
required to be fulfilled for commission of offence of murder.
(20) In the scheme of Indian Penal Code, “Culpable homicide” is
genus and “murder” is its specie. All “Murder” is “culpable
homicide” but not vice versa. Speaking generally ‘culpable
homicide sans special characteristics of murder’ if culpable
homicide is not amounting to murder.
(21) In the case of Anda vs. State of Rajasthan reported in 1966
CrLJ 171, while considering “third” clause of Section 300 of IPC,
it has been observed as under:-
“It speaks of an intention to cause bodily injury which is sufficient
in the ordinary course of nature to cause death. The emphasis here
is on sufficiency of injury in the ordinary course of nature to cause
death. The sufficiency is the high probability of death in the
ordinary way of nature and when this exists and death ensues and
causing of such injury was intended, the offence is murder.
Sometimes the nature of the weapon used, sometimes the part of
the body on which the injury is caused, and sometimes both are
relevant. The determinant factor is the intentional injury which
must be sufficient to cause death in the ordinary course of nature.”
(22) In the case of Mahesh Balmiki vs. State of M.P. reported in
(2000) 1 SCC 319, while deciding whether a single blow with a
knife on the chest of the deceased would attract Section 302 of
IPC, it has been held thus :-
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“There is no principle that in all cases of single blow Section 302
I.P.C. is not attracted. Single blow may, in some cases, entail
conviction under Section 302 I.P.C., in some cases under Section
304 I.P.C and in some other cases under Section 326 I.P.C. The
question with regard to the nature of offence has to be determined
on the facts and in the circumstances of each case. The nature of
the injury, whether it is on the vital or non-vital part of the body,
the weapon used, the circumstances in which the injury is caused
and the manner in which the injury is inflicted are all relevant
factors which may go to determine the required intention or
knowledge of the offender and the offence committed by him. In
the instant case, the deceased was disabled from saving himself
because he was held by the associates of the appellant who
inflicted though a single yet a fatal blow of the description noted
above. These facts clearly establish that the appellant had intention
to kill the deceased. In any event, he can safely be attributed
knowledge that the knife blow given by him is so imminently
dangerous that it must in all probability cause death or such bodily
injury as is likely to cause death.”
(23) In the case of Dhirajbhai Gorakhbhai Nayak vs. State of
Gujarat (2003) 9 SCC 322, it has been observed as under :-
“The Fourth Exception of Section 300, IPC covers acts done in a
sudden fight. The said exception deals with a case of prosecution
not covered by the first exception, after which its place would have
been more appropriate. The exception is founded upon the same
principle, for in both there is absence of premeditation. But, while
in the case of Exception 1 there is total deprivation of self-control,
in case of Exception 4, there is only that heat of passion which
clouds men’s sober reason and urges them to deeds which they
would not otherwise do. There is provocation in Exception 4 as in
Exception 1; but the injury done is not the direct consequence of
that provocation. In fact Exception 4 deals with cases in which
notwithstanding that a blow may have been struck, or some
provocation given in the origin of the dispute or in whatever way
the quarrel may have originated, yet the subsequent conduct of
both parties puts them in respect of guilt upon equal footing. A
‘sudden fight’ implies mutual provocation and blows on each side.
The homicide committed is then clearly not traceable to unilateral
provocation, nor in such cases could the whole blame be placed on
one side. For if it were so, the Exception more appropriately
applicable would be Exception 1. There is no previous deliberation
or determination to fight. A fight suddenly takes place, for which
both parties are more or less to be blamed. It may be that one of
them starts it, but if the other had not aggravated it by his own
conduct it would not have taken the serious turn it did. There is
then mutual provocation and aggravation, and it is difficult toSC No. 28366/2016
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apportion the share of blame which attaches to each fighter.
The help of Exception 4 can be invoked if death is caused
(a) without premeditation,
(b) in a sudden fight;
(c) without the offender’s having taken undue advantage or acted in
a cruel or unusual manner; and
(d) the fight must have been with the person killed.
To bring a case within Exception 4 all the ingredients mntioned in
it must be found. It is to be noted that the ‘fight’ occurring in
Exception 4 to Section 300, IPC is not defined in the IPC. It takes
two to make a fight. Heat of passion requires that there must be no
time for the passions to cool down and in this case, the parties have
worked themselves into a fury on account of the verbal altercation
in the beginning. A fight is a combat between two and more
persons whether with or without weapons. It is not possible to
enunciate any general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved facts of
each case. For the application of Exception 4, it is not sufficient to
show that there was a sudden quarrel and there was no
premeditation. It must further be shown that the offender has not
taken undue advantage or acted in cruel or unusual manner. The
expression ‘undue advantage’ as used in the provision means ‘unfair
advantage’.”
(24) In the case of Pulicherla Nagaraju @ Nagaraja vs. State of AP
(2006) 11 SCC 444, while deciding whether a case falls under
Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
“Therefore, the court should proceed to decide the pivotal question
of intention, with care and caution, as that will decide whether the
case falls under Section 302 or 304 Part I or 304 Part II. Many
petty or insignificant matters plucking of a fruit, straying of a
cattle, quarrel of children, utterance of a rude word or even an
objectionable glance, may lead to altercations and group clashes
culminating in deaths. Usual motives like revenge, greed, jealousy
or suspicion may be totally absent in such cases. There may be no
intention. There may be no pre-meditation. In fact, there may not
even be criminality. At the other end of the spectrum, there may be
cases of murder where the accused attempts to avoid the penalty
for murder by attempting to put forth a case that there was no
intention to cause death. It is for the courts to ensure that the cases
of murder punishable under section 302, are not converted into
offences punishable under section 304 Part I/II, or cases of
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punishable under section 302. The intention to cause death can be
gathered generally from a combination of a few or several of the
following, among other, circumstances :
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked
up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden
fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was
any pre- meditation;
(vii) whether there was any prior enmity or whether the deceased
was a stranger;
(viii) whether there was any grave and sudden provocation, and if
so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows. The
above list of circumstances is, of course, not exhaustive and there
may be several other special circumstances with reference to
individual cases which may throw light on the question of
intention. Be that as it may.”
(25) In the case of Sangapagu Anjaiah v. State of A.P. (2010) 9
SCC 799, Hon’ble Apex Court while deciding the question whether
a blow on the skull of the deceased with a crowbar would attract
Section 302 IPC, held thus:-
“16. In our opinion, as nobody can enter into the mind of the
accused, his intention has to be gathered from the weapon used, the
part of the body chosen for the assault and the nature of the injuries
caused. Here, the appellant had chosen a crowbar as the weapon of
offence. He has further chosen a vital part of the body i.e. the head
for causing the injury which had caused multiple fractures of skull.
This clearly shows the force with which the appellant had used the
weapon. The cumulative effect of all these factors irresistibly leads
to one and the only conclusion that the appellant intended to cause
death of the deceased.”
(26) In the case of State of Rajasthan v. Kanhaiyalal reported in
(2019) 5 SCC 639, this it has been held as follows:-
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“7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 :
(2010) 3 SCC (Cri) 155] this Court observed and held that there is
no fixed rule that whenever a single blow is inflicted, Section 302
would not be attracted. It is observed and held by this Court in the
aforesaid decision that nature of weapon used and vital part of the
body where blow was struck, prove beyond reasonable doubt the
intention of the accused to cause death of the deceased. It is further
observed and held by this Court that once these ingredients are
proved, it is irrelevant whether there was a single blow struck or
multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai
Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC
(Cri) 397] , the death was caused by single blow on head of the
deceased with a wooden pestle. It was found that the accused used
pestle with such force that head of the deceased was broken into
pieces. This Court considered whether the case would fall under
Section 302 or Exception 4 to Section 300 IPC. It is held by this
Court that the injury sustained by the deceased, not only exhibits
intention of the accused in causing death of victim, but also
knowledge of the accused in that regard. It is further observed by
this Court that such attack could be none other than for causing
death of victim. It is observed that any reasonable person, with any
stretch of imagination can come to conclusion that such injury on
such a vital part of the body, with such a weapon, would cause
death.
7.5 A similar view is taken by this Court in the recent decision in
Leela Ram (supra) and after considering catena of decisions of this
Court on the issue on hand i.e. in case of a single blow, whether
case falls under Section 302 or Section 304 Part I or Section 304
Part II, this Court reversed the judgment and convicted the accused
for the offence under Section 302 IPC. In the same decision, this
Court also considered Exception 4 of Section 300 IPC and
observed in para 21 as under: (SCC para 21) “21. Under Exception
4, culpable homicide is not murder if the stipulations contained in
that provision are fulfilled. They are:
(i) that the act was committed without premeditation;
(ii) that there was a sudden fight;
(iii) the act must be in the heat of passion upon a sudden quarrel;
and
(iv) the offender should not have taken undue advantage or acted in
a cruel or unusual manner.”
(27) In the case of Bavisetti Kameswara Rao v. State of A.P.
reported in (2008) 15 SCC 725, it is observed in paragraphs 13 andSC No. 28366/2016
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14 as under:-
“13. It is seen that where in the murder case there is only a single
injury, there is always a tendency to advance an argument that the
offence would invariably be covered under Section 304 Part II IPC.
The nature of offence where there is a single injury could not be
decided merely on the basis of the single injury and thus in a
mechanical fashion. The nature of the offence would certainly
depend upon the other attendant circumstances which would help
the court to find out definitely about the intention on the part of the
accused. Such attendant circumstances could be very many, they
being
(i) whether the act was premeditated;
(ii) the nature of weapon used;
(iii) the nature of assault on the accused.
This is certainly not an exhaustive list and every case has to
necessarily depend upon the evidence available. As regards the
user of screwdriver, the learned counsel urged that it was only an
accidental use on the spur of the moment and, therefore, there
could be no intention to either cause death or cause such bodily
injury as would be sufficient to cause death. Merely because the
screwdriver was a usual tool used by the accused in his business, it
could not be as if its user would be innocuous.
14. In State of Karnataka Vedanayagam [(1995) 1 SCC 326 : 1995
SCC (Cri) 231] this Court considered the usual argument of a
single injury not being sufficient to invite a conviction under
Section 302 IPC. In that case the injury was caused by a knife. The
medical evidence supported the version of the prosecution that the
injury was sufficient, in the ordinary course of nature to cause
death. The High Court had convicted the accused for the offence
under Section 304 Part II IPC relying on the fact that there is only
a single injury. However, after a detailed discussion regarding the
nature of injury, the part of the body chosen by the accused to
inflict the same and other attendant circumstances and after
discussing clause Thirdly of Section 300 IPC and further relying
on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC
465] , the Court set aside the acquittal under Section 302 IPC and
convicted the accused for that offence. The Court (in Vedanayagam
case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para
4) relied on the observation by Bose, J. in Virsa Singh case [AIR
1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC
465], AIR p. 468, para 16) “16. With due respect to the learned
Judge he has linked up the intent required with the seriousness of
the injury, and that, as we have shown, is not what the section
requires. The two matters are quite separate and distinct, though
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the evidence about them may sometimes overlap.”
The further observation in the above case were: (Virsa Singh case
[AIR 1958 SC 465] , AIR p. 468, paras 16 & 17) “16. The question
is not whether the prisoner intended to inflict a serious injury or a
trivial one but whether he intended to inflict the injury that is
proved to be present. If he can show that he did not, or if the
totality of the circumstances justify such an inference, then, of
course, the intent that the section requires is not proved. But if
there is nothing beyond the injury and the fact that the appellant
inflicted it, the only possible inference is that he intended to inflict
it. Whether he knew of its seriousness, or intended serious
consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he
intended to kill, or to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in
question; and once the existence of the injury is proved the
intention to cause it will be presumed unless the evidence or the
circumstances warrant an opposite conclusion. But whether the
intention is there or not is one of fact and not one of law. Whether
the wound is serious or otherwise, and if serious, how serious, is a
totally separate and distinct question and has nothing to do with the
question whether the prisoner intended to inflict the injury in
question….
17. It is true that in a given case the enquiry may be linked up with
the seriousness of the injury. For example, if it can be proved, or if
the totality of the circumstances justify an inference, that the
prisoner only intended a superficial scratch and that by accident his
victim stumbled and fell on the sword or spear that was used, then
of course the offence is not murder. But that is not because the
prisoner did not intend the injury that he intended to inflict to be as
serious as it turned out to be but because he did not intend to inflict
the injury in question at all. His intention in such a case would be
to inflict a totally different injury. The difference is not one of law
but one of fact.”
6. The case of the prosecution is that on 18.10.2011 all the four accused
in furtherance of their common intention committed the murder of Brahm
Singh. The above accused persons are also charged in the alternative that
on the same date and time all the four accused person in furtherance of
their common intention committed culpable homicide not amounting to
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murder like causing injury on the person of Brahm Singh with Danda and
rod. Hence both the offence under Section 302/304/34 IPC are discussed
hereunder in reference to deceased Brahm Singh/Brahm Prakash.
7. The offence culpable homicide is defined under Section 299 IPC
which is genus and the species of which is defined under Section 300 IPC.
The word knowledge occurring in clause secondly of Section 300 IPC
import some kind of certainty and not merely a probability. If the accused
did not know that the injury was likely to cause death then clause secondly
of Section 300 IPC will not apply. If the act is done with a intention to
cause bodily injury which is intended to inflict sufficient in ordinary course
of nature to cause death then it will be covered in clause thirdly of Section
300 IPC. The offence will fall in clause thirdly even though the offender
did not intend to cause death. The word intention of causing death occurs
in the clause firstly of Section 300 IPC. The prosecution must prove
objectively the necessary facts before it can bring the case under Section
300 IPC thirdly. After satisfaction of above three ingredients then only the
inquiry proceeds further to the fourth ingredient which is purely objective
and inferential in nature and it has nothing to do with the intention of the
offender.
8. An act to be offence of culpable homicide must satisfy the
requirement of Section 299 IPC which defines culpable homicide. Hence
under Section 299 IPC first the prosecution must prove that the accused
person had done an act having one of the following ingredients reproduced
hereasunder:
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(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely
to cause death; or
(iii) an act with the knowledge that it is was likely to cause death.
(I) ALTERCATION IN THE MORNING WITH PW-2, RAVI AND
AMAN AND BEATING OF PW-2 GAURAV
9. The first ingredient the prosecution has to prove that the above four
accused have done the act defined under Section 299 IPC. PW-1 Devender
Singh has deposed that on 18.10.2011 his son Gaurav/PW-2 was beaten by
accused no. 2 in Gali no. 8, main Wazirabad, Delhi on which PCR call was
made at 100 number. Thereafter he had went to the said Gali. PW-1 has got
this information of beating of his son from his wife Ms. Ramesh Devi who
got it through Sh. Deepak/PW-5 who is elder son of PW-1. PW-1
alongwith PW-5 went to Gali no. 8 and saw that some public person were
standing in front of Government school and came to know that injured had
been removed to the hospital by PCR van on which they went to Trauma
centre where he could not find his son Gaurav/PW-2. Thereafter he reached
at Aruna Asaf Ali hospital where he found PW-2 admitted. Then he took
his son to PS Timarpur and met with SHO. Thereafter on the instructions
of SHO at about 5 PM PW-1 alongwith his brother Brahm Singh, Bijender
Singh/PW-7 and sons Gaurav/PW-2 and Deepak/PW-5 first went to PS and
met the SHO again. On this SHO had sent ASI Narender/PW-12 and Ct.
Girish/PW-21 alongwith them.
9.1 PW-1 thereafter went with his brothers Brahm Singh, Bijender Singh
and sons Gaurav and Deepak in a Scorpio vehicle and police officials went
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on their motorcycle at Gali no. 8, village Wazirabad, Delhi. They stopped
their vehicle on main road outside Gali no. 8. Police officials namely ASI
Narender and Ct. Girish had also reached there. Accused no. 1 Sat Prakash
was standing in front of his house and police started making inquiry from
him. In the meanwhile accused no. 3 Ram Kumar, accused no. 4 Sh. Jai
Prakash @ Pappu and accused no.2 Mohit came out of their house. Mr.
Gaurav/PW-2 had identified accused no. 2 Mohit. It is deposed by PW-1
that accused no. 2 had given beating to PW-2/Gaurav because PW-2
Gaurav had objected to beating of another boy by accused no. 2 Mohit.
The above deposition of PW-1 regarding the beating allegedly given by
accused no. 2 to PW-2 is only a heresay evidence and it was an incident in
the morning. Police officials had apprehended accused no. 2 Mohit and
they started taking him away from his house.
9.2 PW-2 Gaurav has deposed that on 18.10.2011 at about 7 AM he left
his house for attending English speaking coaching class at Mukherjee
Nagar. He was going via village Wazirabad, main road where at Gali no. 8,
Wazirabad village he had seen that accused no. 2 Mohit was beating one
person namely Ravi resident of village of PW-2. It is noted that there is no
such person brought on record nor examined as prosecution witness by the
name Ravi. It is deposed by PW-2 that since he was trying to save the said
Ravi therefore accused no. 2 Mohit got annoyed and hit Danda blow on
head of PW-2 from backside. The Danda was picked from the road/Gali.
Someone from the public had made call at 100 number. PW-2 alongwith
Ravi were taken by PCR. Accused no. 2 Mohit ran away from the spot
before arrival of police. Ravi was brought at PS and PW-2 was taken to
Aruna Asaf Ali hospital by the PCR where PW-2 was medically examined.
Around 10:30 AM PW-1 alongwith PW-5 came to hospital.
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9.3 Vide Ex.PW12/A DD No. 11A dated 18.10.2011 at 8:06 AM
information was received from the operator that a fight has broke out near
primary school. The information given vide phone no. 9958891673 by
accused no. 1 Sat Prakash Tyagi from the phone which belongs to accused
no. 3 Ram Kumar Tyagi. The case was marked to ASI Narender Singh and
ASI Narender Singh had departed with Ct. Vikas Chaudhary. Around 9 PM
vide DD No. 10B dated 18.10.2011 information was received that the
husband and son of the informant were injured in a fight who were
thereafter admitted at Trauma Centre and who were troubled by police
person. The call was received from mobile no. 9999286450 which was
assigned to SI Ishwar Singh.
9.4 It is submitted by the ld. Counsel for accused that Rukka Ex.PW1/A
was sent. However the MLC was already prepared of accused Gaurav. The
real fact of the case were that a girl was teased on which PW-2 Gaurav was
also involved alongwith one Ravi and Aman. The page no. 235 in
document file Ex.PW22/DX3 is vigilance inquiry dated 09.04.2012 in
respect of the same incident. In the said vigilance inquiry conducted by
Insp. Subodh Kumar records that no action was taken by ASI Narender on
the incident occurred in the morning related to eve-teasing at 7 AM. ASI
Narender did not record any statement. The information was
communicated to ASI Narender at 8:06 AM for necessary action through
PCR van Sugar-65. As per report of HC Namdeshwar, Incharge of PCR
van S-65 there was gathering of 60-82 people. Another PCR van assistance
was demanded as quarrel had intensified. At 8:23 AM S-65 further
informed that they were taking three boys to PS one of which was injured.
Two boys were handed over at PS Timarpur while another boy was taken
to hospital. At 8:50 AM again it was communicated to control room that
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one Gaurav/PW-2 was admitted at AAA hospital while one Ravi and Aman
had been handed over to duty officer Timarpur. Two motorcycles
belonging to above three person were handed over to Beat Constable and
ASI Narender of local police was on duty. The motorcycles were taken to
police station in Rehri of Sanjay and Ashok, the vegetable vendors.
9.5 Another vigilance inquiry report dated 04.04.2014 reported by ACP
Vigilance is Ex.PW22/DX4 had recorded that ASI Narender had not taken
any action on the morning incident of eve-teasing despite of receipt of DD
No. 11 A at PS Timarpur and no action was taken against PW-2 Gaurav,
Ravi and Aman. There is no report of motorcycle no. DL8SAW2101 and
DL8SAU5735 allegedly used by eve teasers and taken to the police station.
In the evening incident ASI Narender misrepresented and falsely shown his
presence at the site alongwith Gaurav and others. Though he had reached
at the spot much later in TATA 407 alongwith police reinforcement.
9.6 Ex.PW12/DX3 (colly 10 pages) which is wireless log and diary
book records at 8:03 AM at second page that there was an altercation at
Gali no. 8 near primary school and the call was received from mobile no.
9958891673. At 8:15 AM at the same page it records that there were 50-60
person who had gathered in the altercation. The fight had escalated and
early reinforcement was requested with PCR van. It records that it was
matter of eve-teasing of girl. The caller ASI Sat Prakash/accused no. 1 had
told that a girl was going to school who was eve-teased and he had made
telephone call after seeing quarrel there. At 8:20 AM it further records that
three boys were apprehended in the said matter of eve-teasing. One boy
who was injured was taken to hospital and two boys were left at PS
Timarpur. The injured boy/PW-2 was admitted to AAA hospital at 8:50
AM and the two boys Aman and Ravi were handed over to PS Timarpur.
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Hence in the morning incident the call was made by ASI Sat Prakash to the
police regarding eve-teasing of school going girl.
9.7 The site plan is Ex.PW12/C of the evening incident. Ex.PW19/A is
the Form-1 of the PCR which records that on 18.10.2011 at about 8:22 AM
an altercation had occurred regarding a matter of eve-teasing. One person
was injured who was being taken to hospital at 8:22 AM. It further records
that at 8:50 AM the injured was dropped at hospital and handed over to
Constable at Aruna Asaf Ali hospital. It is argued on behalf of accused that
the deceased had only one injury on the head. The MLC Ex.PW3/A is
MLC of Gaurav at page no. 81 of document file who was found fit for
statement when arrived at AAA hospital at 8:45 AM. The history records
that there was fight with someone about half an hour back near Wazirabad
road. The nature of injury was simple and the kind of weapon was blunt.
Lacerated wound of 2 cm on occipital region of scalp and injury was of
about ½ cm. However at page no. 687 of the document file Ex.PW10/A
which is MLC of same person Gaurav/PW-2 (narrated as carbon copy)
records not fit for statement. Hence there appears to be manipulation of
facts by some person and the manipulation would be imputed to the person
who seeks to take advantage of such manipulation. One Sh. Ram Prakash
(brother) had received the copy of MLC and it is argued on behalf of
accused that the complainant was present during such receipt of MLC. To
the contrary ASI Narender Singh records that he did not find any injured at
the spot in the morning when he reached with Ct. Vikas Chaudhary.
Thereafter they went to AAA hospital with Ct. Vikas Chaudhary and he did
not find Gaurav in the hospital. PW-12 had collected MLC of injured
Gaurav from the hospital. Contrary to the statement of PW-12 Ex.PW1/A
at page no. 31 of document file records that Ct. Vikas Chaudhary had
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reached at the hospital and received copy of MLC no. 2134/11 pertaining
to PW-2/Gaurav. He went with ASI Narender Singh. PW-12/ASI Narender
Singh in his examination-in-chief dated 30.07.2015 at page no. 449 of the
evidence file and page no. 1 of the evidence has deposed that DD No. 11A
Ex.PW12/A was marked to him regarding a quarrel in street no. 8,
Wazirabad near primary school. He alongwith Ct. Vikas Chaudhary
reached at the spot where injured were not found. 2-3 public person were
present. On reaching AAA hospital he did not find injured Gaurav. He had
collected MLC of injured Gaurav. In cross-examination dated 06.09.2019
at first page (page no. 457 of case file) it is admitted that as per PCR form
Ex.PW19/A the morning dispute is regarding eve-teasing of a girl and the
injured was taken to hospital who was handed over to duty Constable at
AAA hospital in conscious condition. The call to PCR was made from
phone number 9958891673 which was made by accused no. 1 Sat Prakash
Tyagi to the police by using phone of his brother Ram Kumar Tyagi. At the
next page it is deposed that Aman, Ravi and Gaurav were picked by PCR.
PW-12 has deposed that he is not aware if two boys Aman and Ravi were
left by PCR officials or that if two motorcycles were lifted from the spot to
police station in Rehri. PW-12 did not make any inquiry from both the
boys Aman and Ravi. At page 3 of same cross-examination PW-12 has
deposed that he did not record statement of any of the public witness who
gave him the information that the boys were taken to hospital. Hence
public witness were available. It is further deposed that PW-12 had not
interrogated public person in detail nor he had made inquiry from the
shopkeepers or from the residents though there were shops and houses. He
did not make any call to PCR official. Hence the above conduct of PW-12
shows that he had not collected relevant evidence at the spot in time
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though it was available.
9.8 Regarding the morning incident of teasing of girl the ld. Counsel for
accused has referred to judgment Ex.DW6/A dated 14.03.2019 (at page no.
527 of document file) passed by Hon’ble Juvenile Justice Board and it is
submitted that Aman, Ravi and Gaurav/PW-2 were found to be involved in
the said case. It is submitted that IO had deliberately excluded Aman and
Ravi from the picture who were handed over by PCR van at PS Timarpur
but without any record and action they were let off.
9.9 It is deposed by PW-12/IO in cross-examination dated 06.09.2019 at
page 3 that he had not made any attempt to contact PCR officials though
the name of PCR official are mentioned in MLC Ex.PW3/A of
Gaurav/PW-2. He had reached at AAA hospital at about 9:15 AM. He did
not record statement of Gaurav/PW-2 in respect of incident occurred in the
morning. It is admitted as correct that PW-2 was taken from hospital to
home by brother of Gaurav namely Sh. Ram Prakash. PW-12 also did not
record the statement of Sh. Ram Prakash. The taking of Gaurav by his
brother and that Gaurav was fit for statement is recorded in Ex.PW12/DX1
(at page no. 273 of document file) which is carbon copy of MLC. It bears
endorsement of Ram Prakash on left hand side corner at the bottom. The
MLC Ex.PW3/A (at page 81 of document file) was collected by IO in
original. It is argued on behalf of accused that the brother of PW-2/Gaurav
namely Sh Ram Prakash had taken him without making a complaint to the
police because he knew that he is the miscreant who is involved in eve-
teasing of a girl. PW-12 also knew that Gaurav/PW-2 is involved in eve-
teasing of a girl therefore he did not record the statement of PW-2 nor he
went in search of PW-2/Gaurav. It is submitted that this was the reason
why Gaurav was not found in the hospital when PW-12 had reached at the
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hospital. Ex.PW12/DX2 the PCR Form shows that the incident was
regarding the teasing of a girl. Ex.PW12/DX3 which is log book of PCR at
page 3 records at 8:23 AM that three boys were taken one of which was
taken to hospital who was PW-2 and other two boys were taken at PS
Timarpur. It records at 8:50 AM Gaurav had reached hospital and Ravi and
Aman were handed over to duty officer at PS Timarpur whereas police/IO
has concealed deliberately about morning incident in Rukka Ex.PW12/B.
In the statement under Section 161 Cr. PC of PW-2 which is
Ex.PW2/DA(at page no. 159 of document file) records that accused no. 2
Mohit was beating one person Ravi resident of Gali no. 3, Jagatpur village.
It is recorded in the statement that when the alarm was raised on such
beating then accused no. 2 Mohit ran away from the spot. The carbon copy
of MLC is also produced by accused in defence which is Ex.DW10/A (at
page no. 687 of the document file) which records that the MLC was
received by brother of PW-2 namely Sh. Ram Prakash. Ex.PW12/DX4
order from Chief Information Commissioner (at page no. 309 of document
file) records that PW-12 ASI Narender had not discharged his duty
carefully/properly and there are apparent inconsistencies in the information
furnished. It is argued by the ld. Counsel for accused that FIR no. 108/2019
dated 27.06.2019 (at page no. 313 of document file) which is
Ex.PW12/DX5 was lodged against Insp. Rajnish Panwar/SHO and PW-12
ASI Narender Singh for giving false information in which accused no. 1
Sat Prakash Tyagi is the complainant.
9.10 PW-1 claims that one boy was beaten. It is deposed at page 4 of
cross-examination dated 16.01.2013 by PW-1 that he does not know the
person by the name Ravi though PW-2 in the first page of his examination-
in-chief deposed that he saw accused no. 2 Mohit was beating one person
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named Ravi resident of village of PW-2. It is further deposed by PW-1 in
same cross-examination that he had not met the person namely Ravi and
Aman at PS and he has knowledge from his son PW-2/Gaurav that initially
quarrel had taken place in the morning with one Ravi. PW-1 does not know
if Ravi had sustained any injury in the incident or not. Further, to the
contrary PW-1 has improved his version by deposing that he know Ravi
resident of his village who is son of Sh. Et Ram. He never produced Ravi
in the police station during investigation. He does not know what Ravi
was doing on the spot at the time of incident.
9.11 It is deposed by PW-1 Devender Singh at page 3 of his cross-
examination dated 16.01.2013 that PW-2 Gaurav was not going to school
those days. He cannot also say that whether 18.10.2011 was a holiday or
not. However it is deposed that his son was going to coaching classes since
last one and a half month. He does not know when his son used to return
from the said institute. His son was going to attend class of English
speaking course at Kingsway Camp. It is deposed that his class used to
begin around 8 AM. Ld. Counsel for accused has argued that if the class of
PW-2 Gaurav was at 8 AM then there is no reason with PW-2 to present at
the spot in the morning incident. PW-2 has deposed that he had left his
house on 18.10.2011 at about 7 AM.
9.12 The MLC of Gaurav is at page no. 273 of the case file which is copy
of carbon copy that is Ex.PW12/DX1 and the original MLC is at page no.
81 of the case file which is Ex.PW3/A. As per Ex.PW12/DX1 Ram
Prakash had received the patient Gaurav. Ld. Counsel for the accused has
submitted that it has to be read with evidence of PW-3 that injuries on the
deceased were received on occipital region which can occur due to fall. It
is submitted that the MLC Ex.PW12/DX1 has to be seen with
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Ex.PW12/DX3 which is at page no. 291 of document file. It records at 8:03
AM that there was a call from gali no. 8 village Wazirabad near Primary
school that some altercation has taken place and call was made from
mobile no. 9958891673. The incident was of eve-teasing and the
complainant was accused no. 1 Sat Prakash. At the same page at 8:15 AM
it records that there was gathering of 50-60 person. It is submitted that due
to beating of public Gaurav has sustained injury in the incident of eve-
teasing in the morning and he was not hit by accused no. 2 Mohit Tyagi.
9.13 Ld. counsel for accused has submitted that distance between bus
stand at Samadhi to Mukherjee Nagar is 2.75 km. The distance between
bus stand at Samadhi to Wazirabad is 1.5 km. The distance between
Wazirabad to Mukherjee Nagar is 2 km. It is submitted that there is no
reason with the PW-2 to go alongwith other JCL to go to Mukherjee Nagar
via Wazirabad when the distance between bus stand at Samadhi to
Mukherjee Nagar is 2.75 km and the said PW-2 with other JCL were taking
longer distance of about 3.5 km by first going to bus stand at Samadhi to
Wazirabad and then from Wazirabad to Mukherjee Nagar that too when the
said person were late. The bus stand at Samadhi is near the house of PW-2
and JCL. It is admitted as correct by PW-2 in cross-examination dated
05.04.2013 at first page that the bus stand at Wazirabad outer ring road in
respect to Wazirabad village comes after 6 bus stand from the bus stand at
Samadhi. It is deposed by PW-2 that he left his residence on 18.10.2011 at
about 7 AM and his class at Mukherjee Nagar was at 8 AM. He does not
remember complete registration of his motorcycle whose last digits are
1010. The bus from Samadhi bus stand vide route no. 271 begins at 7 AM
and route no. 266 begins at 6:40 AM and 7:20 AM. After getting down at
Gandhi Vihar crossing he used to take an auto rickshaw. It is submitted on
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behalf of accused that when the PW-2 and JCL were already late for the
institute at Mukherjee Nagar then there was no reason to visit Wazirabad
but only to commit offence of eve-teasing the girl. Judgment Ex.DW6/A in
FIR no. 776/14 of PS Timarpur under Section 509 IPC from JJB Board-III
is referred at page no. 527 of case file vide which the JCL therein were
found to be involved and finding is recorded at para no. 5(a) that there
were two motorcycles. The said para is seen and in the deposition of PW-1
in the said case at the said para it is noted that there is talk of one
motorcycle.
9.14 PW-2 at page 3 of his cross-examination dated 05.04.2013 has
deposed that PCR came at the spot after about an hour. It is deposed that
PW-2 had reached at gali no. 8 Wazirabad at about 8 AM and he has so
stated to the police. From his house he came straight to gali no. 8
Wazirabad and he did not stop anywhere. Some people were present there
at the time when quarrel was going on between accused no. 2 Mohit and
one Sh. Ravi. He was not carrying any phone. There are shops outside gali
no. 8 Wazirabad where he did not go to make a phone call. Ld. Counsel
for accused has referred to Ex.PW19/A which is PCR Form 1 at page no.
51 of the document file. It records at 8:20 AM on 18.10.2011 that dispute
was related to eve-teasing of a girl. One injured was taken to hospital. It is
submitted by the ld. Counsel for the accused that the injured was
PW-2/Gaurav. The PW-2 in his deposition dated 05.04.2013 at page 4 has
deposed that he does not know if Aman was also made to sit in PCR van.
With such statement there is admission on behalf of PW-2 that Aman was
present at the spot. At page 5 of the same deposition it is deposed by PW-2
that Mohit/accused no. 2 continued to beat Ravi for about 3-4 minutes.
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There is no MLC of Ravi despite the claim that Ravi had sustained injuries.
(as per deposition of PW-2 at page 5). It is submitted that Ravi was not
injured at all. It is deposed by PW-2 that he came on foot to his house at
gali no. 8 Wazirabad on that day. There is no recovery of weapon of
offence/Danda or rod from the accused person and accused has not given
any beating to any person.
9.15 With reference to the carbon copy of MLC Ex.PW12/DX1 at page
no. 273 of the document file which is of PW-2 Gaurav and it records at
point A that Ram Prakash/brother had received injured Gaurav whereas to
the contrary PW-2 in cross-examination dated 19.11.2013 at page 2 has
deposed that Ram Prakash is elder brother had not come in the morning to
the hospital. In cross-examination dated 19.11.2013 it is deposed by PW-2
at page 6 that they remained at hospital for many hours and therefore he
did not go to the spot to show the place of incident to the police and he
went straightway to his home. PW-2 at page 2 of the same cross-
examination has deposed that he does not remember if he disclosed about
the incident to the attending doctor or name of the person who caused
injury upon him. He did not tell about Ravi to his father.
9.16 At page 3 of cross-examination dated 19.11.2013 it is deposed by
PW-3 that they did not have bad terms with the family of accused no. 1 Sat
Prakash Tyagi prior to the incident and infact they were in good terms.
9.17 At page 3 of the same cross-examination it is deposed that he does
not know Ravi about whom his brother had told that accused no. 2 Mohit
was beating Ravi though this was the reason of quarrel in the morning. One
of the most important witness in this case is Ravi allegedly for whom the
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quarrel was started as per the case of prosecution and Ravi is not made as a
witness in this case.
9.18 PW-14 Ct. Vikas at first page of his examination-in-chief dated
08.10.2015 (page 419 of evidence file) has deposed that on receipt of DD
no. 11A when he alongwith ASI Narender reached gali no. 8 Wazirabad
village then they had found that PCR officials had already shifted the
injured Gaurav/PW-2 to Aruna Asaf Ali hospital. ASI Narender had
obtained MLC of injured Gaurav from the hospital. When the injured had
already left for his house then they went to house of injured Gaurav. There
they came to know that Gaurav/PW-2 alongwith his father, uncle, brother
and other person went to police station and they met injured Gaurav at
police station where ASI Narender had recorded statement of injured
Gaurav.
9.19 PW-14 in his statement Ex.PW14/DB in the vigilance inquiry (at
page no. 231 of the document file) has stated that the injured boys were
taken in PCR vehicle at AAA hospital. The motorcycle at the spot was
brought to PS in a cycle rickshaw carrier (Rehri) thereafter the statement of
injured, father and uncle whose statement was recorded at police station.
9.20 DW-5 Sh Sunil Kumar from the office of Central Information
Commission, Munirka, Delhi has brought CIC order Ex.DW5/B (at page
no. 567 of the document file) which mentions that there was nothing on
record to suggest that three boys were apprehended were handed over to
local police at PS Timarpur Delhi. An inquiry was conduced on complaint
of Sat Prakash/accused no. 1 by vigilance branch in which ASI Narender
Singh/PW-12 had stated that on 18.10.2011 at 8:10 AM a PCR call was
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marked to him regarding a quarrel at Wazirabad. In another inquiry the HC
Sukhbir Singh has stated that on 18.10.2011 at about 8:45 AM PCR Sugar-
65 had handed over two boys aged about 16-17 years to him who were in
turn handed over to ASI Narender Singh/PW-12.
9.21 DW-10 is Sh. Sandeep, Junior Radiographer from AAA hospital
Delhi who had brought MLC of one Gaurav/PW-2 vide Ex.DW10/A (at
page no. 687 of the case file) = Ex.PW12/DX1 (at page no. 273of case file)
which is copy of same MLC. At point A in the said MLC it is recorded that
the injured Gaurav was fit for statement who was received by his brother
Ram Prakash and the same is mentioned in Ex.PW12/DX1 in carbon copy.
It has to be read with Ex.PW3/A. It is pointed out by the ld. Counsel for
the accused that in the original MLC of PW-2 Gaurav Ex.PW3/A (at page
no. 81 of the document file) does not mention that PW-2 Gaurav the
injured was received by his brother Ram Prakash.
9.22 Ex.DW11/D is statement of HC Narender Singh PCR North zone in
vigilance inquiry dated 10.01.2012 and 27.02.2014 vide file no.
09/P.Sec/Addl. CP/vigilance Delhi wherein in reference to morning
incident it is stated that on 18.10.2011 he was posted at Sugar 65 vehicle
North zone. Around 8:03 AM they had received a call of fight. They had
reached at the spot where accused no. 1 Sat Prakash Tyagi had met and
there was gathering of 50-60 public person who were beating three boys.
The accused no. 1had informed the PCR police person that the said three
boys were beaten by public person who had eve-teased a girl. The name of
the boys was disclosed as Gaurav, Ravi and Aman. The said three boys
were taken in PCR van to police station Timarpur. The boy Aman and Ravi
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were handed over to duty officer. Gaurav who was injured was taken to
AAA hospital.
9.23 Ex.PW2/DA (at page 157 of the document file) which is statement
under Section 161 Cr. PC of PW-2 Gaurav which records that on
18.10.2011 when he was going from gali no. 8 main road Wazirabad
village around 8 AM then he had seen that accused no. 2 Mohit was
beating a person named Ravi who was friend of PW-2 Gaurav resident of
gali no. 3 Jagatpur. He tried to save Ravi. It is also written in the statement
that accused no. 2 Mohit ran away from the spot when Gaurav/PW-2 had
raised alarm.
9.24 It is submitted on behalf of State and the complainant that the
accused person have alleged eve-teasing of a girl. However the said girl
was not examined by the accused person. The above submission cannot be
sustained in view of the fact that judgment in respect of eve-teasing is
already filed on record Ex.DW6/A dated 14.03.2019 (at page no. 527 of
document file) and in the said case the girl was already examined and
accused/JCL therein were also found to be involved. Hence the said
judgment is final and binding in respect of eve-teasing of the girl.
9.25 There is great importance of morning incident of beating of PW-2
Gaurav, Ravi and Aman to look into the fact if any party had motive for
altercation between them during the evening incident. It is also important
to look whether there was any premise in the morning incident so that
evening incident would continue as a part of morning incident. The role of
the complainant, the police and the accused has to be seen. In the morning
incident. It is deposed by PW-1 that PW-12 ASI Narender and Ct. Girish
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had reached at the spot. Whereas vide DD no. 11A Ex.PW12/A ASI
Narender Singh had departed with Ct. Vikas to the spot and not with Ct.
Girish.
9.25.1 The allegation of PW-2 Gaurav regarding the morning
incident is that accused no. 2 Mohit was beating one person namely Ravi.
The said person namely Ravi is therefore one of the important witness to
show that how the morning dispute had started and also that for what
purpose accused no. 2 Mohit was beating him. He is also important to be
examined to know that what was the motive when the morning incident
had started. The said person Ravi is neither made as a witness by the
prosecution nor his statement was recorded by the police. Hence it shows
that the IO does not seek to bring the said fact before the present Court. It
also creates doubt to the fact that whether the person Ravi was being
beaten at all on 18.10.2011 at about 8 AM. The said person Ravi was also
taken to PS alongwith Aman by PCR vehicle Sugar 65 and the said two
person alongwith two motorcycle carried in Rehri of Sanjay and Ashok the
vegetable vendor were handed over to IO/PW-12. Vide Ex.PW22/DX4 the
vigilance inquiry report has mentioned that PW-12 has not taken any action
in the morning incident of eve-teasing and there is no report on the said
two motorcycle by the IO/PW-12. The same is also confirmed by wireless
log diary Ex.PW12/DX3 that Aman and Ravi were handed over to PS
Timarpur. Hence the above conduct on the part of IO/PW-12 shows that he
was not investigating in a fair manner and his testimony and evidence has
to be read with caution.
9.25.2 The MLC Ex.PW3/A pertaining to PW-2 records that PW-2
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was fit for statement whereas the same MLC in carbon copy Ex.PW10/A
records that PW-2 was not fit for statement. Hence it appears that the
record was not prepared correctly and in fair manner. In Ex.PW12/DX1
which is again carbon copy of MLC records that PW-2 was fit for
statement. If the IO had not to arrest PW-2 Gaurav and Aman regarding the
morning incident and had left them shows that IO did not believe that the
above person had committed the offence of eve-teasing then in such
circumstance the IO must have recorded complaint on behalf of Aman and
Ravi that Ravi was so beaten by accused no. 2 Mohit. In fact no such
statement of the above person was recorded by the IO. The complaint
should also be given by PW-2 Gaurav that Ravi was beaten by accused no.
2. In fact no such statement of PW-2 Gaurav was recorded by the IO. The
information regarding eve-teasing of the girl was also received at police
station and also by the IO PW-12 which is confirmed by Ex.PW12/DX3
the wireless log and diary book record. Three boys were apprehended in
the said matter. When the PCR van had handed over said two boys Ravi
and Aman at police station the and when they were received by PW-12
then there was no reason with PW-12 either to treat the said boys as
complainant or to take action against the said two boys on the ground of
eve-teasing. Since there was clear record of PCR van about eve-teasing
(inaction by) the IO shows that IO was not inclined to act against Ravi and
Aman and he let them go away from the police station without taking any
action. There is contrary statement by PW-12 that he had collected copy of
MLC of injured Gaurav which is contrary to Ex.PW1/A that Ct. Vikas
Chaudhary had reached the hospital and received the copy of MLC
pertaining to PW-2. The IO did not act to bring true facts on record that
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call was made on PCR by accused Sat Prakash on mobile no. 9958891673.
This call was made vide Ex.PW12/A vide DD No. 11 A dated 18.10.2011
at 8:06 AM much prior to handing over of Aman and Ravi to the IO/PW-12
at the police station by the PCR. Contrary to the record PW-12 has deposed
that he is not aware about the said boys who were left by PCR officials or
that the said two motorcycle were lifted from the spot to the police station
in Rehri. Though there were shop keepers in the vicinity having shops and
houses. The PW-12 did not record any public witness though they were
available at the spot in the morning incident. This creates doubt that PW-12
has conducted fair investigation in this matter. Hence it probabilise that in
the morning incident the three boys namely PW-2 Gaurav, Aman and Ravi
were the aggressor who had conducted eve-teasing on a girl. The said fact
is further supported by judgment Ex.DW6/A dated 14.03.2019 (at page no.
527 of the document file) vide which the JCL therein were found to be
involved for the offence of eve-teasing.
9.25.3 The unfairness of PW-12 is further supported by the fact that
he did not record the statement of PW-2 Gaurav nor he recorded the
statement of Ram Prakash who had taken Gaurav from the hospital. No
such complaint was lodged by PW-2 Gaurav, Aman and Ravi regarding the
morning incident shows that they were the aggressor. The story that the
accused no. 2 Mohit was beating another person Ravi is not substantiated
on record by any evidence and there is no motive with the accused person
to beat Ravi. Hence the above story created by PW-2 only to escape from
the wrong done in the morning by doing eve-teasing of a girl. Hence
creation of above baseless story by PW-2 which is supported by PW-1 does
not have any basis in fact and evidence and cannot be relied upon. Such
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creation of baseless story by the prosecution witness shows that in the
morning itself on 18.10.2011 motive had existed with them to falsely
implicate the accused person and for such purpose they have created the
above unproved story of beating of one person Ravi. Hence arguments on
behalf of complainant through ld. APP for the State that the relation
between the accused person and the complainant were cordial and there is
no reason to implicate the accused person falsely does not stand and hence
dismissed. To the contrary it has come on record that the complainant, PW-
2 and the evidence of prosecution witness shows that accused person were
tried to be implicated falsely by the complainant regarding the morning
incident at gali no. 8 Wazirabad village, Delhi. This is further supported by
the fact that accused no. 1 Sat Prakash Tyagi was the first informant of the
morning incident to the police vide DD no. 11A dated 18.10.2011
Ex.PW12/A and since this information was lodged against the complainant
side thereby the complainant has sufficient motive to falsely implicate the
accused person. Though there was no prior enmity between accused and
complainant prior to 18.10.2011 but after the morning incident dated
18.10.2011 shows that the enmity was immediately generated between
them and the complainant side which is further reflected in the conduct of
the complainant by levelling such false/unproved allegation of beating of
Ravi by the accused no. 2 Mohit in the morning. No injury on Mr. Ravi S/o
Etram are proved on record. There is no evidence that how Ravi could be
present in the morning at the spot without any reason. When the class of
PW-2 Gaurav had to begin at 8 AM at Kingsway Camp then there is no
reason with PW-2 to present at the spot in the morning at 8 AM when he
had left his house at 7 AM and he could have conveniently reached at his
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coaching classes at Kingsway Camp much earlier. Further, what was the
coaching for is also not proved on record. Hence it is only an unsupported
statement that PW-2 was going to take coaching class in the morning of
18.10.2011 at Kingsway Camp.
9.25.4 The PW-2 does not remember the number of the motorcycle
which was towed away by Rehri of vegetable vendor in the morning
though the said two motorcycle belongs to them it shows conduct of PW-2
that he does not seek to bring truth on record. The same is proved in
Ex.DW6/A the judgment dated 14.03.2019. The PW-2 has deposed
contrary to MLC Ex.PW12/DX1 that Ram Prakash his elder brother had
not come in the morning to the hospital. The endorsement of Ram Prakash
is available on the left hand side at the bottom of Ex.PW12/DX1 in carbon
copy of MLC. Leaving of PW-2 from the hospital without intimating the
police and without lodging a complaint gives inference that the PW-2 was
miscreant in the morning incident. The same is supported by PW12/DX2
which is PCR form shows that the morning incident was regarding eve-
teasing of a girl. Ex.PW12/DX3 the log book of PCR has proved that three
boys were taken from the spot at 8:23 AM by the PCR and out of said three
boys two boys one of which was PW-2 was handed over at PS Timarpur.
No statement in this respect of the said two boys has come on record nor
any action was taken by ASI Narender/PW-12 against the said two boys
despite of the fact that the DD entry in this respect was marked to him
regarding eve-teasing of a girl. This shows that PW-12 had acted with bias
and against the accused in this matter and therefore his testimony has to be
read with great caution. FIR was also lodged against SHO Insp. Rajnish
Panwar vide Ex.PW12/DX5 bearing no. 108/2019 dated 27.06.2019 for
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giving false information. The above FIR was lodged on complaint of
accused no. 1 Sat Prakash Tyagi. The contrary is the claim of PW-1 that he
does not know Ravi and at the same time knew the said Ravi who belongs
to his village. Ravi had accompanied PW-2 when PCR dropping them at
PS Timarpur. PW-1 has at one point deposed that he has knowledge about
Ravi from his son Gaurav PW-2 and at other point he has deposed that he
know Ravi resident to his village who is son of Etram. There is absence of
any detail that PW-2 Gaurav was going to attend coaching at Kingsway
camp at which institute and no supporting evidence in this respect is
produced on record. Ex.PW12/DX3 log book of PCR records at 8:15 AM
gathering of 50-60 person at the spot in the morning incident. Due to
beating by public Gaurav PW-2 had sustained injury in the morning
incident. This fact is concealed by PW-12 and it was duty of PW-12 to
show what action he had taken against Aman and Ravi who were handed
over to him at PS Timarpur by the PCR officials in the morning and also to
verify the facts what was reported in PCR form. He had not done so.
Strangely PW-2 does not remember the complete registration number of
motorcycle whose last digit are 1010 which were transported in Rehri from
the spot in the morning to the police station. Two motorcycles were
transported. One more fact to be noted is that when two motorcycles were
found at the spot and three person were apprehended by PCR officials in
the morning namely PW-2 Gaurav, Aman and Ravi then atleast two among
them must be driving the motorcycle and that is how the motorcycle must
have reached to the spot. It is not the case of the prosecution that this
motorcycle in the morning incident belong to Ravi nor Ravi is made
witness in this case though he is one of the material person to state about
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the facts of the case regarding the morning incident which had initiated the
beginning of the dispute.
9.25.5 PW-2 Gaurav was taken to hospital by the PCR from the spot
in the morning. He has claimed in his deposition that he was going with
other JCL to Mukherjee Nagar to attend coaching class. He was first going
by bus from bus stand Samadhi to Wazirabad and then from Wazirabad to
Mukherjee Nagar. Since the bus stand at Samadhi is near to house of PW-2
and JCL. The above deposition cannot be believed in view of the fact that
when two motorcycle are found at the spot then same would not be given
to the one person alone. Out of the three person two must have driven the
said two motorcycle in the morning. Hence it is noted that PW-2 Gaurav
had not taken the shorter distance to attend his coaching classes at
Kingsway camp. There was no reason with him to travel by bus when
motorcycle was available with him. The police had also not seized those
motorcycles as such evidence is not produced on record which again shows
that the investigation conducted by the PW-12 was not fair since beginning
and biased in favour of the accused person. PW-2 has deposed that the
PCR reached at the spot after about an hour and he had reached at gali no.
8 Wazirabad at 8 AM and to the contrary Ex.PW19/A PCR form-1 records
that at 8:20 AM on 18.10.2011 there was report of eve-teasing of a girl.
9.25.6 PW-2 has deposed that Danda blow was given to him by the
accused no. 2 Mohit in the morning and the said Danda was picked from
the road/gali. If the accused no. 2 had beaten the victims in the morning by
Danda and when the beating was mainly given to Ravi then it has become
incumbent upon the prosecution to bring MLC of Ravi on record. There is
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no evidence that Ravi was medically examined in this case. There is ample
evidence discussed above which is found on record that Ravi and Aman
were handed over to PS Timarpur to ASI Narender Singh/PW-12 and
alongwith two motorcycle brought on Rehri and no material inquiry was
conducted in this respect by the IO.
9.25.7 From the above discussion it has come on record that in the
morning incident PW-2 Gaurav, Aman and Ravi were the aggressors who
had no reason to be available at gali no. 8 Wazirabad village, Delhi at 8AM
in the morning. There is absence of any evidence that Ravi was beaten by
accused no. 2 in the morning. This has proved that the dispute was initiated
in the morning by the complainant and not by the accused.
(II) ALTERCATION IN THE EVENING AND MURDER OF BRAHM
SINGH (DECEASED) BEATING OF DEEPAK, GAURAV AND
VIJENDER SINGH/BIJENDER SINGH AND OTHER
10. It is deposed by PW-1 in his examination-in-chief dated 27.11.2012
that accused no. 1, 3 and 4 came out of their house with Danda and rods
and abused PW-1 and the person who came with PW-1. Accused no. 1 Sat
Prakash gave Danda blow with full force on the head of PW-1 and
continuously gave Danda blows on the other parts of body of PW-1 out of
which PW-1 had sustained injuries. PW-1 started retracting to save himself.
The above four accused gave beating by Danda and rods on the person of
Brahm Singh, Bijender/PW-7 and Deepak/PW-5 till they fall down on the
ground. The accused had also beaten them with kicks and fist blows. Other
police officials reached at the spot and they were saved by the police
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officials. The Scorpio vehicle HR51AN2018 was damaged from driver
side by accused person with Danda and iron rod. The Scorpio vehicle was
parked near the wall of Govt. school on the main road. In the meanwhile
Mahesh Kumar brother of Brahm Singh and cousin brother of PW-1
reached in his car. Brahm Singh was bleeding from his head who was taken
by Mahesh Kumar alongwith them in his vehicle to Trauma Centre. PW-1
gave his statement vide Ex.PW1/A. The accused person were correctly
identified in the Court by PW-1. Brahm Singh was treated at Trauma
Centre for four days who was later taken to Tirath Ram hospital on
22.10.2011 and operated there. Brahm Singh remained at Tirath Ram
hospital for 07 days and thereafter he was discharged. After about 15-20
days his condition had deteriorated on which he was again taken to Tirath
Ram hospital and again operated upon. His condition further deteriorated
on which he was shifted to Maharaja Agrasen hospital, Punjabi Bagh,
Delhi and he was operated there. Brahm Singh had expired on 10.01.2012
at Maharaja Agrasen hospital. The Scorpio vehicle was seized by the police
which was taken on superdari by PW-1. Five photographs of which
Ex.PW1/B-1 to Ex.PW1/B-5 were correctly identified. The Scorpio vehicle
was having broken glass and two pieces of bricks were lying inside the
vehicle. The photograph showing the injury on the head of Brahm Singh is
Ex.PW1/C.
10.1 On prior appointment from SHO PW-2, PW-1, Brahm Singh and
Bijender/PW-7 went to PS at 5 PM where they met SHO. SHO sent two
police officials with them. When the police officials were making inquiry
from PW-1 regarding the incident happened in the morning at that time
accused no. 2, 3 and 4 came out from their house. Police had caught
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accused no. 2 Mohit and while taking him away from his house then the
remaining three accused came out from their house with Danda and rod.
The accused no. 1 had hit Danda blow on the head of PW-1. The remaining
accused had given beating to Deepak/PW-5, Sh. Brahm Singh and Bijender
with Danda and rod. PW-2 raised noise and other police officials reached
there. Many public person had gathered there. Police and public person had
saved the PW-2 and his family members and by that time the accused
person had damaged Scorpio vehicle. The relative Mahesh had reached at
the spot who had taken the injured to Trauma centre in his vehicle. Except
Brahm Singh all other injured were discharged from the hospital. Brahm
Singh had expired despite of getting treatment for a week after about 15-20
days of the time spend at Maharaj Agrasen hospital. Hence PW-2 had
identified photograph Ex.PW1/B-1 to Ex.PW1/B-5 pertaining to Scorpio
vehicle and photograph Ex.PW1/C regarding injuries caused on Brahm
Singh.
10.2 PW-5 Deepak had deposed that around 5 PM he alongwith PW-1,
Brahm Singh, PW-7 Bijender Singh and PW-2 Gaurav went at PS
Timarpur for lodging complaint against accused no. 2 regarding incident
happened in the morning at about 8-8:30 AM. In the afternoon they came
at police station where SHO had asked them to come in the evening.
Accordingly PW-5 with PW-1, Brahm Singh, PW-2 and PW-7 went again
at PS at about 5 PM where SHO sent police officials with them to identify
the person involved in beating of PW-2 Gaurav. In Gali no. 8 accused Sat
Prakash Tyagi was present outside his house. Police had started inquiring
from accused Sat Prakash Tyagi and PW-2 had identified accused no. 2
Mohit who had beaten PW-2 in the morning. In the meanwhile accused no.
1, 3 and 4 brought rods and Dandas from their house. Accused Sat Prakash
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had hit Danda on the head of PW-1 as well as on the head of Brahm
Singh/since deceased. Accused no. 2, 3 and 4 gave blow by iron rod,
Danda on Bijender Singh and also on PW-5. They also badly damaged the
Scorpio car. On hearing noise public person had gathered taking benefit of
which accused no. 1, 3 and 4 ran away from the spot. Hence as per above
deposition of PW-5 accused no. 2 Mohit was with police till the entire
duration of such inquiry at 5 PM. PW-5 has deposed that the incident had
taken place at 5:30 AM. The police had seized the Scorpio vehicle which
was taken on superdari by PW-5 vide Ex.PW5/A and the photograph of
Scorpio vehicle already referred above were identified alongwith
photograph of injury on Brahm Singh Ex.PW1/C.
10.3 PW-7 has deposed that around 5 PM on 18.10.2011 he alongwith
PW-1, Brahm Singh, PW-2 Gaurav and PW-5 Deepak went at PS Timarpur
and SHO PS Timarpur had sent police official with them for Wazirabad
village, Gali no. 8 for identification of accused no. 2 Mohit. Accused no. 1
was standing outside his house and police started making inquiry from
him. In the meanwhile Mohit/accused no. 2 and accused no. 3 and 4 came
out from their house. PW-2 had identified the accused Mohit and police
officials started making inquiry from accused no. 2 Mohit. In the
meanwhile accused no. 1, 3 and 4 went inside their house for carrying
Lathi, Danda and rod in their hands. Accused no. 1 gave Danda blow on
the head of PW-1 and Brahm Singh and accused no. 2, 3 and 4 started
giving beating with Lathi and Danda to PW-7 and PW-5. The Scorpio car
was damaged by accused persons by Lathi and Danda. After hearing noise
the neighbours gathered and taking advantage of which all the four accused
ran away from the spot.
10.4 The site plan is Ex.PW12/C. Point A is the place where the police
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had inquired from accused person and point B is the place where the
Scorpio vehicle was standing. However it is not recorded in the site plan
that at whose instance it was prepared. It was prepared by ASI Narender
Singh/PW-12 who as per the case of the prosecution was present at the spot
at the time of incident. Another site plan prepared to scale is Ex.PW8/A
and the same is prepared by SI Mahesh Kumar. Hence as per deposition of
above prosecution witness PW-1, PW-2, PW-5 and PW-7 the ASI
Narender/PW-12 and Ct. Girish/PW-21 were present at the spot in the
evening when the alleged offence was committed and they were eye
witness to the case.
10.5 Another DD No. 42A dated 18.10.2011 was received at about 6:45
PM from Ct. Krishan that a fight has broke out at Gali no. 8 and the call
was given to ASI Narender Singh. As per case of prosecution ASI
Narender Singh/PW-12 was present at the spot when the incident had
occurred. Vide DD No. 37A dated 18.10.2011 around 6 PM information
was received that at Gali no. 8 near Govt. school village a fight has broke
out and the call was assigned to ASI Narender Singh/PW-12. FIR is
Ex.PW18/A which was registered vide no. 227 dated 19.10.2011 in the
matter on the complaint of PW-1. However there is another FIR
Ex.PW18/DA bearing no. 228 dated 19.10.2011 in which one Sh. Rohit
Tyagi is the complainant which was lodged against one Sh. Devender,
Surender, Deepak and Brahm Singh alleging that the complainant Rohit
and his friend Gaurav had informed about teasing of a girl, to the police by
the son of accused person therein which accused therein threatened that it
was not good for which the complainant will be taught lesson. Thereafter
accused Devender and Surender in the said FIR has started throwing abuse
and extorted to beat both Rohit and Gaurav. Accused Deepak had caught
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Rohit and Brahm Singh had caught Gaurav. Accused Surender and
Devender started beating them with Danda and accused Brahm and Deepak
started beating with kicks and fists. When alarm was raised then public
person had gathered.
10.6 Further, ASI Narender did not take any action despite receipt of PCR
call of quarrel at Gali no. 8 near Govt. school, village Wazirabad. It was
received at PS Timarpur vide DD no. 37A at 6 PM. It was communicated
to ASI Narender via telephone. Another intimation was given to ASI
Narender at 6:45 PM received vide DD No. 42A. Ct. Narmdeshwar,
Incharge PCR van S-65 found that the parents of the boy beaten in the
morning were present at the spot in the evening to identify persons who
had beaten their son in the morning. A local gathering of 50-60 persons
was also present. ASI Narender reached at the spot at 6:15 PM. The same
PCR van had again reached at the spot on second call and gathering of
100-150 person was found and stone pelting took place between both the
parties after reaching of SHO at the spot. Hence the PCR van contradicts
the version of ASI Narender and Ct. Vikas Chaudhary also contradicts the
version of ASI Narender. In the inquiry it was found that some person
came in Scorpio with other vehicle and they entered into the house of
accused no. 1 Sat Prakash when quarrel started. Thereafter stone pelting
was started. The Insp. Ramesh Panwar has played a doubtful role about his
presence at PS at 5 PM on 18.10.2011 who had given free hand to ASI
Narender in the evening despite SHO was present at the spot on
18.10.2011 at village Wazirabad. Notice for censure was later issued to
Insp. Rajnish Panwar, the then SHO PS Timarpur as recorded in
Ex.PW22/DX2.
10.7 Ex.PW14/DA is statement of Ct. Vikas Chaudhary which records
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that between 6-7 PM he alongwith ASI Narender and other police staff
sitting in TATA 407 and went to Gali no. 8, Wazirabad to attend a call of
fight. ASI Narender was trying to pacify the people when SHO had
reached there. SHO was also trying to pacify people in the meanwhile
stone pelting had started. In the Gali there were about 20 people. SHO with
the help of staff had controlled the crowd. DW-3 SI Sanjay Kumar has
deposed that he brought summoned record the order dated 12.12.2012
passed by Sh. Umesh Kumar, Addl. Commissioner Police PCR which is
Ex.DW3/B and he had also brought summoned record regarding
departmental inquiry conducted against ASI Sat Prakash Tyagi/accused no.
1 vide Ex.DW3/C. Accused no. 1 was exonerated in the said departmental
inquiry.
10.8 Ex.PW12/DX8 which is DD No. 25A dated 18.10.2011 records at 1
PM that SHO PS Timarpur alongwith his driver Anandpal and Ct. Anil
Kumar proceeded for attending Juvenile Justice Board-1 in Gypsy no.
DL1CJ3861 (at page no. 357 of document file). Further, at page no. 359 of
the file DD No. 34A dated 18.10.2011 records return of SHO Rajnish
Panwar at 6:10 PM alongwith his Gypsy and staff.
10.9 Ld. Counsel for the accused has submitted that the genesis of crime
is suppressed by the police. PW-12 in cross-examination dated 06.09.2019
at page 6 had deposed that he reached at PS Timarpur at 5 PM and met
SHO in his office. PW-14 Ct. Vikas in cross-examination dated 19.03.2019
at page 2 has deposed that SHO of the PS was present at that time at 5 PM
when the person whose name PW-14 cannot tell had told them at
Wazirabad village that PW-2 Gaurav alongwith his father, uncle and
brother etc. had gone to the PS and thereafter they had left for Wazirabad
village in evening. He found SHO at 5 PM at police station. He had not
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made any arrival entry at the police station. PW-22 Insp. Rajender
Kumar/IO at page 3 of his cross-examination has deposed that he did not
examine the SHO in the present case in respect of the evening incident.
Whereas vide Ex.PW12/DX8 which is DD No. 25A dated 18.10.2011
records at 1 PM that SHO PS Timarpur alongwith his driver Anandpal and
Ct. Anil Kumar proceeded for attending Juvenile Justice Board-1 in Gypsy
no. DL1CJ3861 (at page no. 357 of document file). Further, (at page no.
359 of the file) DD No. 34A dated 18.10.2011 records return of SHO
Rajnish Panwar at 6:10 PM alongwith his Gypsy and staff. Hence the
presence of SHO at police station at 5 PM is itself is doubtful and on the
face of it, it is seen that the deposition of PW-1, PW-2, PW-5, PW-7, PW-
12 and PW-14 is contradictory to the record available at the police station
and there is no explanation by the prosecution in respect of above
contradiction. This shows that the prosecution witness were working
heavily biased against the accused person since the very beginning and
their deposition has to be read with great caution since the complainant and
the police/investigating agency had together acted against the interest of
fair play and justice. When the SHO himself was present in the evening
and when at that time crowd had gathered for about 150-200 public person
so much so that reinforcement has to be called to control the crowd then
SHO was a material witness in respect to the evening incident. Being the
senior most officer in the police station it was incumbent on the part of
prosecution to join SHO as prosecution witness in the case for the evening
incident but this is not done. The SHO who was senior officer at the police
station he was duty bound to do so. Moreso when he had witnesses part or
full incident in the evening. Hence the conduct of SHO PS Timarpur has
become doubtful.
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10.10 Ld. Counsel for the accused has pointed out that in the
deposition of PW-12 there is no arrival entry and also there is no departure
entry. Vide Ex.PW22/DX4 (at page no. 241 of the document file) the
vigilance inquiry report by ACP Vigilance dated 04.04.2014 records at last
para of page 1 that SHO came back at PS at 6:10 PM vide DD No. 25A and
39A dated 18.10.2011. Vide Ex.PW12/DX8 the SHO went with Ct. Anil at
1 PM to Juvenile Justice Board and at the very next page vide DD No. 39A
he had arrived at PS at 6:10 PM. Hence the prosecution witness PW-1,
PW-2, PW-5, PW-7, PW-12 and PW-14 are deposing against the record
that they met SHO at PS at 5 PM. Complaint is Ex.PW1/A which again
records at page 1 that the complainant met SHO at PS at 5 PM contrary to
Ex.PW12/DX8 read with DD No. 39A. Hence the reason furnished by the
prosecution witness that they had went to the house of the accused for the
purpose of identification of the person who had given beating to PW-2 in
the morning appears to be false since such direction was allegedly given by
the SHO, PS Timarpur at 5 PM which could not be so given. Whereas as
per record SHO PS Timarpur himself was not available at police station at
5 PM. Therefore at 5 PM the complainant and police person did not go for
the purpose of identification of such accused who had beaten PW-2 in the
morning but there was some other reason to go there which is concealed by
the prosecution witness in this case who are PW-1, PW-2, PW-5, PW-7,
PW-12 and PW-14. The above concealment is a material concealment and
therefore it is material contradiction in the case of the prosecution which
goes to the root of the case of the prosecution. Hence another angle comes
into picture that whether the complainant as alleged had went to the house
of accused person as aggressor in the case. It is also to be seen that whether
the accused person have also suffered injuries in the evening incident.
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10.11 Mark PW12/D6 at page no. 335 of document file is order from
Deputy Secretary Home-1, Sh. Pawan Kumar which is also Ex.DW1/A at
page no. 525 of the document file vide which the then SHO Insp. Rajnish
Panwar and ASI Narender Singh/PW-12 were allowed to be prosecuted
under Section 197 Cr. P.C, 1973 for prosecution under Section 166/167 and
192 of IPC. The order was granted in the name of Hon’ble Lieutenant
Governor, NCT of Delhi. It shows that even the senior administrative
authorities and Hon’ble Lieutenant Governor, NCT of Delhi were pleased
to issue direction against the SHO Insp. Rajnish Panwar and ASI Narender
Singh keeping in view their doubtful nature of conduct while performing
their duty. It is submitted by ld. Counsel for the accused that DD No. 11A
dated 18.10.2011 records that at 8:06 AM ASI Narender Singh/PW-12 had
left to attend the altercation of morning incident and vide DD no. 87B he
had returned to police station not on the same day but next day and
therefore PW-12 cannot record DD No. 87B on the same day. In cross-
examination dated 06.09.2019 PW-12 at page 6 had identified all the DD
marked to him except the DD No. 87B and it is deposed that DD No. 87B
was marked to him then he was out of police station to attend the calls
recorded vide DD No. 19A, 24A, 32A, 33A, 37A, 41A, 42A, 96A. Vide
Ex.PW12/DX7(colly) (at page no. 355 of document file) which is DD No.
87B dated 19.10.2011 verified by SHO, PS Timarpur in reference to PW-
12/ASI Narender Singh that he reached at police station in reference to said
DD No. 87B on 19.10.2011 at 6:52 PM. Hence PW-12 had went out from
PS at about 8:06 AM vide Ex.PW12/A dated 18.10.2011 at page no. 39 of
document file and he had returned next day only on 19.10.2011 at 6:52 PM
and therefore he could not be present at police station at 5 PM on
18.10.2011 to receive instructions from SHO Insp. Rajnish Panwar at 5
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PM.
10.12 Ld. Counsel for the accused has submitted that SHO had acted
malafide and biased against the accused in the present case. Mark
PW12/D6 = Ex.DW1/A is referred which are at page no. 335 and 525
respectively. It is sanction for prosecution against the SHO under Section
197 Cr. P.C and ASI Narender Singh of PS Timarpur. ASI Narender Singh
has deposed as PW-12. The initial complaint was made by the accused no.
1 vide DD No. 11A. DD No. 87-B is return by ASI Narender but he did not
return to the PS on the same day but on the next day. Hence the DD No.
87-B cannot be recorded by ASI Narender Singh on the same day. It is
submitted that the police official have manipulated the documents to
falsely implicate the accused person. Ex.PW1/A at page no. 29 of the case
file is dated 18.10.2011 is the complaint which was filed by Sh. Devender
Singh and it specifically mention contrary to the other record that at 5 PM
PW-1 Devender Singh met the SHO at police station. He could not have
met the SHO without corresponding DD entry of return at the police
station by the SHO when SHO had already left to Juvenile Justice Board
from police station in the afternoon itself at about 1 PM. The story of ASI
Narender Singh is therefore contradictory as he did not return to the police
station. It is claimed that the complainant had came to the house of
accused person as aggressor and they did not go to the police. Vide DD No.
25A = Ex.PW12/DX2 dated 18.10.2011 the SHO of PS Timarpur had went
at 1 PM to Juvenile Justice Board and returned back vide DD No. 39A at
6:10 PM only. DD no. 39A is on the very next page of the case file. It is
submitted that vide judgment Ex.DW6/A passed by Hon’ble Juvenile
Justice Board dated 14.03.2019 (at page no. 527 of document file)
conviction was granted under Section 354/34 IPC against JCL therein.
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10.13 Ex.PW12/DX11 at page no. 367 of case file which is finding
by ACP Civil Line dated 06.04.2013 against ASI Narender Singh and SHO
Rajnish Panwar that the ASI Narender Singh had not taken action in the
eve-teasing incident of morning nor he had taken action against
Gaurav/PW-2. Insp. Rajnish has failed to supervise the incident throughout
the day which ultimately led to death of Sh. Brahm Singh the deceased.
The above finding was given in the inquiry report. The expression by SHO
that he was at Juvenile Justice Board was accepted vide Mark PW12/DX12
(at page no. 369 of case file).
10.14 Ct. Girish/PW-21 has not proved on record of coming back to
police station by 5 PM or that he had received instructions from SHO. As
per Ex.PW21/DX2 (at page no. 261 of case file) which is DD no. 47B
dated 18.10.2011 registered at 11:20 AM that Ct. Girish alongwith other
police staff had returned at PS and went again for NDPL raid village
Jagatpur pertaining to Tata power. Hence Ct. Girish/PW-21 cannot
accompany ASI Narender Singh/PW-12. SI Yogender vide DD No. 68B
dated 18.10.2011 vide Ex.PW21/DX3 at 2:35 PM returned from NDPL
raid with complete staff. Vide Ex.PW2/DX4 DD No. 111B dated
18.10.2011 Ct. Girish was sent at 11:50 PM for Jagatpur. Hence it is argued
that the Ct. Girish did not leave from police station from 3:50 PM onwards
till 11:50 PM on 18.10.2011 and he could not went with ASI Narender
Singh/PW-12.
10.15 The wireless and log diary book is Ex.PW12/DX3 at page no.
289 of document file. At 8:03 AM a call was received from Wazirabad
village that a fight had occurred at Gali no. 8 near primary school and the
phone no. of the informer is 9958891673. At 8:15 AM it is recorded in the
log book wireless diary that at the spot 50-60 person have gathered and the
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altercation has increased. The reinforcement was asked to be sent early
alongwith one PCR van. The matter was related to eve-teasing of a girl.
Accused no. 1 ASI Sat Prakash Tyagi had informed that a girl going to her
school and on eve-teasing of which the altercation has occurred and
accused no. 1 had informed the police. At 8:23 AM it is recorded that in the
said eve-teasing matter of the girl the boys were apprehended. Two of the
boys had to be left at PS Timarpur and one of which had to be taken to the
hospital. It was also informed that reinforcement be sent early and the fight
was increasing. The public was not listening to the police person. At 8:50
AM it is recorded that Gaurav/PW-2 son of Devender
Singh/PW-1/complainant was taken at AAA hospital and admitted there.
The person Aman and Ravi were taken at PS Timarpur and handed over to
duty officer available there. ASI Narender Singh was on call duty. ASI
Narender Singh had not taken any action against said two boys Aman and
Ravi and left them without taking any action against them and it shows that
he had acted since beginning with bias and unfairness against the accused
person. The statement under Section 161 Cr. P.C of Gaurav/PW-2 is
Ex.PW2/DA at page no. 159 of case file has recorded that accused no. 2
Mohit was beating his friend Ravi staying at Gali no. 3 Jagatpur and the
said statement is contrary to the evidence of prosecution which is wireless
log book Ex.PW12/DX3. PW-12 at page 10(page no. 475) of evidence file
in cross-examination dated 06.09.2019 has deposed after going through log
book of PCR Ex.PW12/DX3 and PCR forms Ex.PW12/D2 that he is not
disputing the contents of the said log book and the PCR forms.
10.16 PW-12 at page 10 (page no. 475) of evidence file in cross-
examination dated 06.09.2019 has deposed that Ct. Girish had reached at
the spot on his motorcycle with PW-12 and Ct. Vikas at about 6 PM in the
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evening at Gali no. 8. The above deposition is contrary to Ex.PW14/DA
which is statement of Ct. Vikas Chaudhary in the departmental inquiry
where he has stated that ASI Narender with other staff went in Tata 407 at
Gali no. 8 Wazirabad because there was call of a fight. It is regarding
evening incident. ASI Narender had tried to pacify the people and in the
meanwhile SHO had also reached there who also tried to pacify people. He
is unaware that which side was pacified by ASI Narender and SHO. In the
meanwhile stone pelting had started at the place. In the Gali about 20
people were standing. SHO had overpowered the situation and scattered
the crowd. It is argued for the accused that there was no reason for the
complainant party to reach at the house of accused and the complainant
party were the aggressor. Ct. Girish and Ct. Vikas has contrary deposition.
In cross-examination PW-21 HC Girish at page no. 3 of his cross-
examination has deposed that he does not remember if any DD entry was
made regarding his departure after he returned back to PS after electricity
raid of NDPL where he went between 12-12:30 PM and returned at 5 PM.
He does not remember the time at which he reached the spot of the incident
but it was evening time. He remained at the spot till morning of
19.10.2011. Contrary to above deposition it is admitted in cross-
examination of PW-21 at page 4 as correct that PW-12 has joined duty at
police station vide DD no. 46B/Ex.PW21/DX1 dated 18.10.2011 at PS
Timarpur at 11:15 AM. It is also admitted as correct that he departed for
NDPL raid vide DD no. 47B Ex.PW21/DX2 dated 18.10.2011. It is further
deposed that from the said raid PW-21 HC Girish Chander did not return
back to the PS and only SI Yogender had returned vide DD no. 68B
Ex.PW21/DX3 dated 18.10.2011 at about 2:35 PM. In DD no. 47B it is
written that SI Yogender had returned with entire staff. It is deposed by
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PW-21 as correct that vide DD No. 111B PS Timarpur Ex.PW21/DX4
dated 18.10.2011 he had left for night patrolling duty at 11:50 PM and he
returned in the morning on 19.10.2011. Vide DD No. 15/B vide
Ex.PW21/DX5 (at page no. 6) it is deposed that he does not know if SHO
PS Timarpur was present at police station. It is deposed that SHO did not
visit the spot till he remained at the spot in the evening of 18.10.2011 till
morning of 19.10.2011. He departed within 10-15 minutes of his arrival at
the PS.
10.17 The photo of Scorpio vehicle are Ex.P1 to P5 and inside
which stone and bricks are lying. No damage is shown to the boot/Dikky.
Hence the said brick and stones were carried in the said Scorpio vehicle.
The side window glass of the Scorpio vehicle is broken. The front driver
side was not facing the house of the accused which would be so facing as
the Scorpio vehicle was coming from the side of PS Timarpur to the house
of the accused. The side glass will break only when the Scorpio vehicle
was coming from the side of village Jagatpur and only then the driver side
of the vehicle will face towards the house of the accused. There are no
broken pieces of glass found inside the Scorpio vehicle. PW-1 in his cross-
examination dated 16.01.2013 at page 2 has deposed that front glass of
Scorpio was broken. Two pieces of brick were lying inside the vehicle. It is
argued that big pieces are lying on the back side of the vehicle and no
damage was caused at the back side. It is argued that complainant person
were aggressor who had went to one and a half kilometer from their
residence to commit the attack on the accused person.
10.18 It is argued that PW-1 had lodged the complaint after due
deliberation and consultations. The PCR call was made by accused no. 1
Sat Prakash Tyagi. Ramesh Devi who had informed the incident initially to
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her husband is not made a witness in the case. PW-1 in his examination-in-
chief at first page dated 27.11.2012 has deposed that he went to Gali no. 8
village Wazirabad, Delhi in the morning. When he was sitting in a Baithak
then some person from village came and informed his wife Ramesh Devi
that his son Gaurav/PW-2 had quarrel at Gali no. 8 village Wazirabad. The
carbon copy of MLC of PW-2 Gaurav is Ex.PW10/A (at page no. 689 of
document file) where it is recorded that one Sh. Ram Prakash had taken
PW-2 Gaurav from the hospital. To the contrary PW-1 at first page of his
examination-in-chief has deposed that at AAA hospital his son Gaurav was
admitted and under medical treatment. His son was discharged after
medical examination. He inquired from his son and took him to police
station Timarpur. Hence PW-1 is deposing contrary to record ExPW10/A
that Ram Prakash had taken PW-2 Gaurav from the hospital. Hence the
deposition of PW-1 had become suspicious for the reason he is speaking
against the facts on record and not speaking truthfully. His testimony has to
be read with care and caution as he is interested witness in the case and he
is father of PW-2/Gaurav. Due to incident in the morning they had a grudge
against the accused person who were active in initiating police action on
eve-teasing of a girl in the morning.
10.19 It is argued on behalf of ld. Counsel for the accused that at
second page of examination-in-chief dated 27.11.2012 that PW-1 has
deposed that after 5 PM he alongwith Brahm Singh, Bijender Singh and his
two sons Deepak and Gaurav started from PS in the evening to the spot.
Police officials went on their motorcycle. Hence 5 person were there on
behalf of complainant and in addition two police officials ASI Narender
Singh and Ct. Girish comes to seven person. Ct. Vikas was also present
which increases the count to eight person. It is difficult to imagine that how
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four person could over power 08 person is difficult to imagine. DD no. 11A
dated 18.10.2011 which is Ex.PW12/A was recorded at 8:06 AM of the
morning incident and which was assigned to ASI Narender Singh. Another
DD no. 101B dated 18.10.2011 at page no. 45 of document file recorded at
9:10 PM on telephone no. 9999286450 by one lady that at house no. 224,
Gali no. 5, Jagatpur a fight has occurred. Her husband and son was injured
who are admitted at Trauma centre and two police person were troubling
them. The said house belongs to the complainant at Jagatpur. It is argued
on behalf of accused person that police had reached there at the house of
complainant because the complainant was the real culprit.
10.20 Ld. Counsel for the accused has submitted that the police
station is about 2½ km away from the spot. The site plan is Ex.PW12/C.
PW-1 in his cross-examination dated 23.01.2014 at page 1 has deposed that
the Scorpio vehicle was facing Jagatpur village. At point B is the place
where the Scorpio vehicle was found standing in the site plan Ex.PW12/C
and which is facing Jagatpur village. The Jagatpur village is on the north
direction and then only the driver side glass can get broken which could be
open to point A open to gali no. 8. Therefore it is claimed on behalf of
accused person that Scorpio vehicle had not come from Jagatpur side but
from Wazirabad side and therefore the accused person were coming
directly from their village and did not come with the police. It is submitted
on behalf of accused that if the accused had came with Danda and rod then
it is not possible that they will break only the driver side window. The
person who came in the Scorpio vehicle must have broken their glass of
the Scorpio vehicle on driver side on their own. No glass pieces were
found at the spot. The said person came in Scorpio vehicle ran away from
the spot after Lathi charge leaving the Scorpio vehicle at the spot.
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10.21 PW-1 at second page of cross-examination dated 23.01.2014
has deposed that he had gone to the hospital in the vehicle with his brother
Mahesh from gali no. 8. They had started from the said spot after the
evening incident within 5-10 minutes. He did not inform the doctor in the
manner in which injuries were sustained by him and also did not disclose
the name of the person with whom the quarrel had taken place. He did not
made a call to the police. However it is claimed that SHO had reached at
the spot prior to his departure from the spot and the SHO had reached at
the spot after the quarrel when the victim were lying in the gali including
PW-1. It is admitted that police might have Lathi charged the public. It is
deposed again that he does not remember about Lathi charge now and that
how many public person were present at the spot. No stone pelting had
occurred in his presence and he did not come to knew about it.
10.22 Ld. counsel for the accused has submitted that the morning
incident was regarding eve-teasing of the girl by the complainant parties
and because the accused person are complainant in the said case thereby to
avenge the same the complainant came with many person in the evening
for the purpose of harming the accused person. It is submitted that the
judgment Ex.DW6/A at page no. 527 of document file from Hon’ble
Juvenile Justice Board-III is passed against accused Gaurav and others on
14.03.2019. Vide the said judgment the JCL therein were found to be
involved for commission of offence under Section 354 r/w Section 34 IPC.
The JCL has also threatened public person in the morning incident with
dire consequences. It is submitted that there was no motive with the
accused person to beat Mr. Ravi in the morning. Mr. Ravi during his
medical examination did not inform the doctor about how the quarrel
started and how he sustained injuries. The PCR form is at page no. 285 of
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the document file which is part of Ex.PW12/D2 (at page no. 275 of the
document file) and it records about evening incident that on 18.10.2011 at
about 6:51 PM there was dispute regarding eve-teasing of girls between
two parties regarding which they are fighting with each other. There is
gathering of about 150/200 person and among those person mild stone
pelting has also occurred. SHO with staff was present at the spot. PW-2
Gaurav in his cross-examination dated 19.11.2013 at page 5 has deposed
that in the evening incident he did not receive any injury. He does not
remember if SHO who had met them twice earlier came to the spot or not.
At same page it is deposed that they had made a call to the police and to
the contrary it is deposed that they did not make a call either during the
quarrel or subsequent to the police. PW-1 Devender Singh at page 4 of his
cross-examination dated 23.01.2014 has deposed that he had received 4-5
injuries. When stampede had occurred at the time in the evening incident
then at that time Lathis were being used. It is deposed that his brother
Brahm Singh had fallen down on the road at the time of incident and he
had received only one injury on his head. Ld. Counsel for accused has
submitted that deceased Brahm Singh had received injury only by such
stone pelting or by falling on the road and no injury was caused by the
accused person.
10.23 The vigilance inquiry report on complaint of complainant ASI
Sat Prakash against Insp. Rajnish Panwar and ASI Narender Singh is
Ex.PW22/DX3 at page no. 235 of document file. It records at page no. 247
that ASI Narender Singh failed to take proper action around 7 AM on
18.10.2011 at gali no. 8 village Wazirabad and notice for sanction was
issued against the Insp. Rajnish Panwar, the then SHO PS Timarpur for his
supervisory lapse which was confirmed by Addl. DCP PCR. This is part of
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verification report submitted by Insp. R.K. Meena PS Timarpur before ld.
ASJ-02, Central District vide Ex.PW22/DX2. The vigilance inquiry report
is Ex.PW22/DX4 (at page no. 241 of document file). At page 2 of
Ex.PW22/DX3 the vigilance inquiry records that a local gathering of 50-80
person was present. At about 6:15 PM IO ASI Narender and staff had
reached at the spot in the evening incident.
10.24 PW-7 Sh. Bijender at page 1 (page no. 415 of the evidence
file) has deposed that around 5 PM SHO PS Timarpur has sent police
official alongwith them to Wazirabad village gali no. 8 for identification of
accused no. 2 who had given beating to PW-2 Gaurav and nephew of PW-7
Bijender. Ld. counsel for the accused has argued that SHO was not present
at all at police station on 18.10.2011 and therefore the deposition of PW-7
is contrary to the record of prosecution. It is deposed by PW-7 at page 4 of
his cross-examination dated 19.11.2014 that they met SHO in his room at
about 5 PM. They all were together and met the SHO. They spoke with the
SHO for 2 mins. It is argued on behalf of ld. Counsel for the accused that
there is no complaint available at police station Timarpur so that SHO had
to come at the spot in the evening incident and therefore it is submitted that
the conduct of the SHO is doubtful.
10.25 PW-7 at page 2 of his cross-examination (page 417 of the case
file) has deposed that Scorpio vehicle was damaged by Lathi and Danda by
the accused person. Ld. Counsel for the accused has referred to the
deposition of PW-7 at page 4 as correct that he can see the pieces of stones
and brick inside their vehicle as visible in photograph Ex.PW1/B3. It is
submitted that the said bricks and stones were brought by accused person
themselves who indulged in stone and brick pelting and the crowd gathered
may have thrown stone on the complainant due to which they had suffered
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injuries. Ld. Counsel for the accused has argued that PW-7 has improved
his version (at page no. 419 of the case file) which is page 3 of his cross-
examination dated 19.11.2014 as he admits having stated wrongly earlier
in his statement under Section 161 Cr. PC that accused no. 1 Sat Prakash
had hit only Devender. Whereas now he has improved his version at page
no. 1 of his examination-in-chief that accused Sat Prakash had given
Danda blow on the head of Brahm Prakash and Devender Singh. PW-7 in
cross-examination dated 19.11.2014 at page 1 (page no. 427of evidence
file) has admitted as correct that he is registered owner Santro car no.
DL2CAE1639. This car was also at the spot on the day of incident. He had
gone in Scorpio car belonging to Deepak. It is further deposed that police
had run away from the spot at the time of quarrel and thereby he was
shifted to hospital by his brother. He is confronted with his statement PW-
7/DA where it is recorded that police official who recorded his statement
had sent him to hospital and this statement is denied by PW-7 as the same
was not given by him to the police.
10.26 On the directions of SHO PS Timarpur he alongwith ASI
Narender/PW-12, Ct. Girish/PW-21 went to the spot alongwith injured
Gaurav for the purpose of identification of the accused. PW-21/HC Girish
Chander at first page of his examination-in-chief dated 04.09.2019 has
deposed that on 18.10.2011 SHO PS Timarpur had called him, Ct.
Vikas/PW-14 and ASI Narender/PW-12 and directed them to accompany
PW-2/Gaurav, Devender, Deepak, Bijender and Brahm Singh on which he
had accompanied the aforesaid public person and police officials to gali no.
8 Wazirabad, Delhi. He had left on his motorcycle, ASI Narender and Ct.
Vikas had left on another motorcycle and the said public person had left in
their Scorpio vehicle from the police station.
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10.27 Ld. Counsel for the accused has referred to deposition of PW-
14 dated 08.10.2015 at first page (page 419 of the evidence file) wherein
PW-14 has deposed that ASI Narender/PW-12 had recorded the statement
of injured Gaurav/PW-2 at the police station. Whereas no such statement of
PW-2 Gaurav at police station is shown on record. The complainant is Sh.
Devender Singh/PW-1. Hence there is no such statement on record on the
basis of which ASI Narender/PW-12, Ct. Girish/PW-21 and Ct. Vikas/PW-
14 could have went to the spot on the alleged direction of the SHO PS
Timarpur. PW-14 at first page of his cross-examination datd 19.03.2019
has deposed that it took half an hour to reach at the police station despite
the fact and the deposition that the distance between the police station and
the spot is about 3 km. It is also deposed by PW-14 that 15-20 person were
present at the spot when they had reached there. Hence taking of half hour
that too on vehicle for travelling a distance of 3 km is taking of very long
time in an urban area when it could not have taken more than 10 mins to
reach at such place. It is argued on behalf of accused that there was no such
direction by the SHO to above person to reach at the spot. PW-14 at page 2
of his cross-examination dated 19.03.2019 cannot tell the name of the
person who told them that PW-2 Gaurav alongwith other person had gone
to police station. According to him it was around 5 AM when he reached at
PS though no arrival entry was made by him at the PS. It is deposed that
SHO was present at 5 PM at PS and at that time ASI Narender recorded
statement of PW-2 Gaurav at the PS. The above deposition of PW-14 on
the face of it is seen to be untrue in view of evidence which has come on
record that the SHO of PS Timarpur was not present at 5PM in the police
station. PW-14 has admitted his statement Ex.PW14/DA and Ex.PW14/DB
made by him in the vigilance inquiry before ACP S.S. Kaushik and it is
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further deposed that the above statements were given by him at the
instance of one inspector posted in the vigilance branch.
10.28 PW-14 in his cross-examination dated 19.03.2019 at page 3
has deposed that when they reached at the spot in the evening/second time
then injured PW-2 Gaurav has pointed towards accused no. 2 Mohit who
was standing near accused no. 1 Sat Prakash Tyagi. PW-14 has not seen
any other accused other than accused no. 1 and 2 coming out of the house.
It is deposed at next page no. 4 that only PW-14, IO/PW-12 and Ct.
Girish/PW-21 were present at that time. It is deposed that accused no. 1 Sat
Prakash has brought Danda from his house and PW-2 Gaurav had
sustained head injuries. Ld. Counsel for the accused has referred to the
statement of PW-14 in vigilance inquiry Ex.PW14/DA (which is at page
no. 227 of the document file) and in the said statement dated 29.03.2012 in
vigilance inquiry it is written that in the evening between 6-7 PM PW-12
ASI Narender and other staff went to gali no. 8 Wazirabad from police
station on a Tata vehicle on a call of fight. PW-12 ASI Narender was trying
to pacify people when SHO had also reached there. He does not know
which people were pacified by PW-12 ASI Narender. Suddenly stone
pelting had started there. Around 20 people were standing there.
Ex.PW12/D2 which is PCR Form no. 1 at page no. 279of the document file
also records that one Sh. Rohit Tyagi had made the PCR call. It is argued
on behalf of ld. Counsel for the accused that vide Ex.PW14/DA he has
admitted about stone pelting, Lathi charge, the police went in the evening
to the spot in Tata 407. It is further pointed out that PW-14 vide order dated
19.03.2019 was asked to produce the DD entries referred to in
examination-in-chief with regard to Ex.PW14/DA and Ex.PW14/DB which
PW-14 did not produce on the next date. It is noted that examination-in-
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chief of PW-14 was completed on 19.03.2019 itself and liberty was granted
only to the accused to recall PW-14 to produce such DD entry and no such
application is shown by the accused if they had called any such DD entry
and therefore above arguments on behalf of accused is held not justified.
10.29 In Ex.PW21/DX2 which is at page no. 261 of the document
file DD no. 47B records that at 11:20 AM the police team consisting of Ct.
Krishan, Ct. Shubhkaran, Ct. Rajkumar who are local staff alongwith other
staff were sent at NDPL raid at village Jagatpur. It mentions both Amad
and Ravangi of the said police officials. The number of total staff is
mentioned as 14. Vide DD no. 8B Ex.PW21/DX3 the police officials had
returned from NDPL raid at village Jagatpur at 2:35 PM on 18.10.2011.
Vide DD no. 111B dated 18.10.2011 Ct. Girish/PW-21 had made Ravangi
beat patrolling at 11:50 PM to Jagatpur on 18.10.2011. It is argued on
behalf of accused that it means that Ct. Girish was at PS from 2:35 PM till
11:50 PM on 18.10.2011 and who had returned at PS at 6:10 PM on
19.10.2011 vide DD no. 15B dated 19.10.2011 Ex.PW21/DX5. PW-21 in
the deposition dated 04.09.2019 at page no. 8 has deposed that he does not
remember that for how long the entire incident continued and has deposed
that he was present at the spot. It is deposed that police reinforcement was
called which came with Lathis and Dandas. It is deposed that SHO did not
reach the spot at all and at the time of incident neither he nor other two
police officials PW-12/ASI Narender and PW-14 Ct. Vikas had intervened.
He deposed that there were only 3 person and at the spot in the evening
incident. There was lot of crowd at the spot and he cannot tell that if there
were 100 or 200 person in the quarrel. They controlled the crowd with the
assistance of police reinforcement. The above deposition is read with
deposition of PW-1 dated 23.01.2014 at page 3 that the police personnel
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who came subsequently were armed with Lathi and Danda. The SHO was
not present at the spot is further substantiated by the deposition of PW-22
Insp. Rajender Kumar at page no. 3 in his deposition dated 04.09.2019 that
he did not examine the SHO in the present case. Despite having complaint
Ex.PW22/DX1 to IO/Insp. Investigation made by Rohit Tyagi dated
18.01.2014. If the SHO was present at the spot and he is being a senior
officer was the most important witness to be examined first and the non
examination of the SHO by PW-22 creates doubt about the presence of
SHO at the spot at the time of the commission of offence in the evening at
the spot on 18.10.2011. Ex.PW22/DX2 (at page no. 247 of the document
file) is report submitted to ld. ASJ, Central District dated 25.01.2014 which
mentions that the quarrel at 7 AM on 18.10.2011 was entrusted to ASI
Narender Singh PS Timarpur/PW-12. An inquiry was conducted in which it
was found that ASI Narender has failed to take proper action into that
matter and an inquiry was ordered against ASI Narender and notice of
sanction was issued to Insp. Rajnish Panwar the then SHO PS Timarpur.
10.30 Ld. Counsel for the accused has submitted that the conduct of
SHO Rajnish Panwar was unfair and vide Ex.PW1/A (at page no. 525 of
the document file) order from Hon’ble Lieutenant Governor, NCT of
Delhi, passed by Deputy Secretary Home Sh. Pawan Kumar has granted
sanction for prosecution against Insp. Rajnish Panwar and ASI Narender
Singh/PW-12 under Section 197 of Cr. PC, 1973. Vide order dated
12.12.2012 Ex.PW3/B (page no. 573 of the document file) the additional
Deputy Commissioner of Police (GA) Sh. Umesh Kumar had confirmed
the censure on Insp. Rajnish Panwar as his reply was silent in respect to
morning incident and his conduct was unfair. Ld. Counsel for the accused
has referred to evidence of DW-6 Sh. Ankur Sharma, Ahlmad who had
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brought the summoned record and order Ex.DW6/A (at page 527of the
document file) whereby ld. Principal Magistrate, JJB-III, Delhi had found
involvement of JCL in FIR no. 776/2014 of PS Timarpur under Section
354/34 IPC. Ex.PW4/A is register no. II of the station daily diary mentions
about morning incident at serial no. 16 which was recorded at 9:45 AM
including PCR calls are mentioned. It is argued that when the SHO had
seen daily diary then not only he must have seen the record of evening
incident but also he must have seen the morning incident regarding which
not only the SHO had remained silent but he did not take any action
against the accused.
10.31 DW-4 Ct. Narender Singh had brought summoned record
regarding the relevant DD entries in DD register A and B dated 18.10.2011
and 19.10.2011. The DD entries are Ex.PW12/DX7(colly), Ex.PW21/DX1
to Ex.PW21/DX5 and Ex.PW12/DX8. Insp. Rajnish Panwar had morning
briefing at 9:45 AM vide Ex.PW4/A pertaining to DD entry no. 16A dated
18.10.2011. It is deposed that as per DD entry no. 25A dated 18.10.2011 at
about 1 PM Insp. Rajnish had left the PS alongwith HC Anandpal and Ct.
Anil Kumar who attend JJB-III in his gypsy and he had returned back to
PS at 6:10 PM on 18.10.2011 vide DD no. 39A. There is no DD entry
either in register A or register B regarding Insp. Rajnish Panwar returning
at PS between 1PM to 6:10 PM on 18.10.2011. ASI Narender/PW-12 had
left PS vide DD no. 11A dated 18.10.2011 and returned to PS vide DD no.
87B dated 19.10.2011 in between there is no return entry made by ASI
Narender Singh. The DD entry register no. A and B are Ex.DW4/B and
Ex.DW4/C on record. There is no cross-examination of this witness. Hence
SHO was not present at police station Timarpur between 1PM to 6PM.
10.32 DW-5 Sh Sunil Kumar from the office of Central Information
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Commission, Munirka, Delhi has brought CIC order ExDW5/B (at page
no. 567 of the document file) which mentions that there was nothing on
record to suggest that three boys were apprehended were handed over to
local police at PS Timarpur Delhi. An inquiry was conduced on complaint
of Sat Prakash/accused no. 1 by vigilance branch in which ASI Narender
Singh/PW-12 had stated that on 18.10.2011 at 8:10 AM a PCR call was
marked to him regarding a quarrel at Wazirabad. In another inquiry the HC
Sukhbir Singh has stated that on 18.10.2011 at about 8:45 AM PCR Sugar-
65 had handed over two boys aged about 16-17 years to him who were in
turn handed over to ASI Narender Singh/PW-12. The order of Addl.
Deputy Commissioner of Police Umesh Kumar Ex.DW3/A had filed an
explanation by Insp. Rajnish Panwar on his explanation that the SHO had
proceeded to JJB at about 1 PM and came back to PS Timarpur at about
6:10 PM after attending the Court.
10.33 Ex.DW11/D is statement of HC Narender Singh PCR North
zone in vigilance inquiry dated 10.01.2012 and 27.02.2014 vide file no.
09/P.Sec/Addl. CP/vigilance Delhi wherein in reference to morning
incident it is stated that on 18.10.2011 he was posted at Sugar 65 vehicle
North zone. Before vigilance inquiry DW-11 has given statement that they
had received a call of fight at about 5:55 PM at Govt. school Wazirabad
village and the beat staff was available at the spot and the parents of the
injured in the morning session were trying to get identified the person who
had beaten their children in the morning. There was gathering of 50-60
local people. At about 6:15 PM IO Narender with staff came at the spot.
The PCR had returned after some time. At about 6:37 PM a PCR call was
again received from gali no. 8 Wazirabad village that some dispute had
occurred. PCR had reached at the spot. At 6:50 PM HC Narender Singh
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from PCR had given information to the control room. SHO was also
present at the spot at that time and now 100-150 people had gathered at the
spot. After reaching of the SHO stone pelting had started between both the
parties. It is further stated in the said statement by HC Narender Singh on
question no. 4 that he had not seen accused no. 1 Sat Prakash Tyagi at the
spot at about 5:55 PM in the evening. The statement of HC Sukhbir Singh
is Ex.DW11/C in the vigilance inquiry (at page no. 693 of the document
file). In the said statement during vigilance inquiry HC Sukbir Singh had
stated that on 18.10.2011 at around 8:45 AM the PCR vehicle Sugar 65 had
produced two boys at the police station who were aged about 16-17 years.
It was informed that these boys were involved in the morning
incident/dispute of eve-teasing of girl. The boys were handed over to ASI
Narender Singh. The name of boys was disclosed as Ravi and Aman.
Similar is the statement of ASI Sukhbir Singh vide Ex.DW11/B.
10.34 PW-12 ASI Narender Singh in cross-examination dated
06.09.2019 at page no. 9 has deposed as correct that as per statement
recorded by him of Devender only Ct. Girish/PW-21 accompanied PW-12
at the spot in the evening at 5 PM. It is also admitted as correct that as per
statement of PW-2 Gaurav, Deepak and Vijender only one constable had
accompanied PW-12 at that time. It is admitted as correct that none of the
statements of Devender/PW-1, Gaurav, Deepak and Vijender mentions
about going of Ct. Vikas/PW-14 with PW-12. It is also admitted as correct
that as per FIR and the statement under Section 161 Cr. PC Devender/PW-
1, Gaurav/PW-2, Deepak/PW-5 and Bijender/PW-7, PW-12 had mentioned
that they all together with one constable had left for gali no. 8 Wazirabad in
Scorpio vechicle. It is deposed voluntarily by PW-12 in evidence that he
went to gali no. 8 on his motorcycle. The suggestion is denied that he did
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not go to gali no. 8 Wazirabad with the said person and had reached at the
spot much subsequently after receipt of PCR call. PW-12 has deposed at
page 10 of the same cross-examination that Ct. Girish/PW-21 had reached
at the spot on his motorcycle simultaneously alongwith PW-12 and Ct.
Vikas/PW-14 at gali no. 8 Wazirabad in the evening at about 6 PM. The
suggestion is denied that Ct. Vikas had reached at the spot in Tata 407
alongwith reinforcement after the incident and therefore PW-12 had
contradicted PW-14 the way they had reached at gali no. 8 Wazirabad in
the evening. In Ex.PW14/DA (at page no. 227 of the document file) the
statement of PW-14 Vikas in the vigilance inquiry had stated that around 6-
7 PM in the evening he alongwith ASI Narender and other staff of the
police station went in Tata 407 vehicle at gali no. 8 Wazirabad. There was a
call of altercation. It is deposed by PW-12 that no PCR vehicle was present
at the spot when he had reached there at 6 PM and he does not know if any
PCR vehicle had reached at the spot till the time he remained there. Ld.
APP for the state and the complainant has referred to PW-21 HC Girish
who has deposed at first page of his examination-in-chief dated 04.09.2019
that he had left the police station on his motorcycle on call from SHO PS
Timarpur to PW-21, Ct. Vikas/PW-14 and ASI Narender PW-12 with
direction to accompany Devender/PW-1, Gaurav./PW-2, Deepak/PW-5,
Bijender/PW-7 and Brahm Singh. It is submitted that PW-21 had seen that
PW-12 ASI Narender was making inquiries from accused no. 1. Three
police person were present as eye witness. PW-1 is the injured witness.
There was no call to police from the spot about beating in the evening.
10.35 PW-12 in the same cross-examination at page 10 dated
06.09.2019 had not disputed the contents of log book of PCR and PCR
form Ex.PW12/DX3 and Ex.PW12/D2(colly). It is deposed that there was
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no stone pelting after the visit of SHO at the spot which is contrary to the
evidence discussed above. At page 11 it is admitted that police
reinforcement was called at the spot and SHO alongwith staff had made
efforts to control the crowd. It is deposed as correct that shops, houses and
hawkers were there near the place of occurrence outside the gate of the
house of accused in the gali and there statement was not recorded by the
IO/PW-12 with no explanation on record. No public person was joined by
the IO. It is deposed that there were around 100 person gathered there at
that time. At page 12 it is admitted by PW-12 that he had reached at gali
no. 8 Wazirabad on receipt of DD no. 42A in which time of occurrence is
mentioned as 6:45 PM. MLC of Rohit Tyagi and Gaurav Tyagi are
admitted by PW-12 as Ex.PW12/DX14 and Ex.PW12/DX15 vide which
accused no. 2 Mohit Tyagi had taken both the person to the hospital. The
complainant was taken to hospital by one Mahesh whose statement was not
recorded by PW-12. It is deposed that occurrence of fight between both the
parties had taken place for about 5-10 minutes. It is deposed that all the
three police person tried to control and intervene but none of the parties
could be controlled by them.
10.36 At page no. 14 of cross-examination dated 06.09.2019 it is
deposed by PW-12 that the statement of PW-1/complainant/Devender on
the basis of which FIR was registered is not is in handwriting. It is deposed
voluntarily that it is in handwriting either of SI Vikram Dahiya or of SI
Arun Tyagi. It is admitted as correct that SI Arun Tyagi is not the witness
in the present case. It is also admitted as correct that the statement under
Section 161 Cr. PC of SI Vikram Dahiya does not mention that he never
visited the spot or hospital or recorded statement of complainant on
18.10.2011. Hence how the information/complaint has reached to the
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police has itself comes under doubt and therefore it creates doubt in fair
investigation of this case.
10.37 PW-12 does not remember on which side the Scorpio vehicle
was facing on the day of occurrence though the site plan Ex.PW12/C was
prepared by PW-12. PW-12 did not collect broken pieces of glass from the
spot of the said Scorpio vehicle and he cannot comment about stone pieces
found inside the Scorpio car in the photographs. It was incumbent on the
part of IO to collect the articles found in and around the Scorpio vehicle
connected to the present case and also to submit report about it which is
not done in the present case.
10.38 Ex.PW12/DX3 (at page no. 289 of the document file) which is
wireless log and diary records (at page no. 303 of the document file) at
about 6:10 PM that it is the same disputed call which was at 8:03 AM in
the morning. The parents of the injured have come to identify the person
who had beaten their children. Beat constable was at the spot. 50-60 person
had gathered. It records at 6:15 PM that ASI Narender alongwith staff had
reached at the spot and 50-60 person had gathered. It records at 6:50 PM
that SHO with staff had already reached at the spot. After reaching of SHO
at the spot stone pelting had occurred between both the parties. The
gathering was about 100-150 person. SHO was trying to mediate between
both the parties. At 5:55 PM (at page no. 301 of the document file) in
Ex.PW12/DX3 it records that a call was received regarding a dispute at
Govt. school Wazirabad village. The call was received from the mobile no.
9990478875. This is the first PCR call ever received with the police
regarding the evening dispute. It shows that at 5:55 PM the dispute
between the parties had already started. There is possibility that by that
time accused person were already beaten and the police had reached later
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in time since as per PW-12 the altercation lasted for 5-10 minutes. It is
argued on behalf of accused that the police did not reach at the spot from
the police station and the accused person had reached at the spot not from
the police station but directly from their house. Police had reached after the
dispute and after the PCR call of the dispute. It is submitted on behalf of
accused Ram Kumar Tyagi/accused no. 3 brother of accused no. 1 Sat
Prakash that he had made call to PCR for the first time and not the
complainant.
10.39 In Ex.PW12/D2 (page no. 279 of case file) which are PCR
Form-1 records at 6:51 PM that there was gathering of about 150-200
person on 18.10.2011 at about 6:51 PM and mild stone pelting was being
done by the gathering. SHO and staff are at the spot.
10.40 The fact to be discussed is that how the deceased Brahm
Singh, PW-1 and other prosecution witness came to reach at the spot in the
evening and who were the aggressors in the altercation happened in the
evening (hereinafter referred as incident in the evening). It is case of the
prosecution that PW-1 and PW-7 with other person had reached at the spot
with police officials to make inquiry that who had beaten PW-2 Gaurav,
Aman and Ravi in the morning at gali no. 8 Wazirabad. The PW-1, PW-2,
PW-5, PW-7 and Brahm Singh went to police station at 5 PM where SHO
sent police officials with them to identify the person who had beaten PW-2
Gaurav, Aman and Ravi in the morning.
10.41 The police had started inquiry from accused no. 1 Sat Prakash
and PW-2 had identified accused no. 2 Mohit in presence of the police. The
PW-1, PW-2, PW-5, PW-7 and Brahm Singh had reached at the spot in
their Scorpio vehicle. Similarly PW-7 has deposed that SHO PS Timarpur
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had sent police officials with them for gali no. 8 Wazirabad village for
identification of accused no. 2 Mohit. Ct. Narmdeshwar, Incharge PCR van
S-65 found that the parents of the boys beaten in the morning were present
at the spot in the evening incident to identify the person who had beaten
their son in the morning. A local gathering of 50-60 person were present
when ASI Narender had reached at the spot at 6:15 PM. Therefore the
above evidence vide DD no. 42A and PCR intimation it is found that ASI
Narender Singh was not present at the spot at 6:15 PM. Otherwise they
could have also named presence of ASI Narender at the spot in the alleged
process of identify the person who had beaten children of PW-1 in the
morning. Ct. Vikas/PW-14 has deposed that he alongwith ASI Narender
and other police staff reached at the spot in Tata 407. This again shows that
PW-12 ASI Narender did not go with PW-1, PW-2, PW-5, PW-7 and
Brahm Singh. Notice of censure was given to Insp. Rajnish Panwar/SHO
for giving free hand to ASI Narender/PW-12 and the same is recorded in
Ex.PW22/DX2. The above evidence of reaching at the spot on direction of
SHO is contradicted vide Ex.PW12/DXA DD no. 25A dated 18.10.2011
that SHO had left PS Timarpur at 1 PM with his driver Anandpal for JJB-
III in a gypsy and DD no. 34A dated 18.10.2011 records that SHO had
returned at 6:10 PM. Hence SHO Insp. Rajnish Panwar would not be
available at PS Timarpur between 1PM to 6:10 PM under any
circumstance. Therefore the reaching of PW-1, PW-2, PW-5, PW-7 and
Brahm Singh at the police station and the meeting with SHO of PS
Timarpur at 5 PM is found to be a false deposition by prosecution witness.
Similarly going to the spot by PW-12 ASI Narender, PW-14 Vikas
Chaudhary and PW-21 Ct. Girish at the spot on the instruction of SHO PS
Timarpur at 5 PM has become doubtful as at that time SHO was not
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available at police station and he could not have met any of the above
person nor he could have given instructions to police person or could have
sent any police person with PW-1, PW-2, PW-5, PW-7 and Brahm Singh
to reach at gali no. 8 Wazirabad village for the alleged identification of the
person who had given beating to PW-2 Gaurav, Aman and Ravi. Hence the
story of the prosecution that how the above PW-1, PW-2, PW-5, PW-7 and
Brahm Singh and PW-12, PW-14 and PW-21 had reached at the spot has
become doubtful and cannot be believed.
10.42 The deposition of PW-12 that at 5 PM he met SHO PS
Timarpur at police station Timarpur is therefore a contradictory deposition.
Similarly deposition of PW-14 Ct. Vikas that he met SHO at police station
at 5 PM is also a contradictory deposition. No arrival entry at PS was made
by PW-14. SHO was the most relevant witness if under his instruction the
above person were sent at the spot in the evening incident and as per
deposition of PW-22 Insp. Rajender Kumar he did not examine the SHO in
the present case in respect of the evening incident. SHO was the senior
most person who could tell best about how the incident was initiated is
therefore the material witness in the case. Non-examination of the SHO by
the prosecution creates serious doubt in the case of the prosecution that
how the incident has started. It is the first duty of the senior officers to
come before the junior officers and depose about the correct and true state
of facts. The non examination of SHO shows that the prosecution story as
produced before the present Court on the face of it is not correct as far as
the way in which the incident had started. Hence doubt has arisen in the
case of the prosecution and benefit of which must go to the accused. There
is no reason with the police official PW-12, PW-14 and PW-21 to depose
against the record and in contradiction to each other in the case and they
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have to act impartially. When the SHO had preferred not to come forward
to depose in this case being the material witness read with the evidence of
the above witness shows that the investigating agency was not only acting
with bias against the accused person but they were proceeding against the
accused person with some vindictiveness.
10.43 When it is found on record that the SHO had not instructed
PW-12, PW-14 and PW-21 at 5 PM on 18.10.2011 then the recording of
statement of PW-2 Gaurav at police station by ASI Narender/PW-12 has
also become doubtful. Had such statement been recorded by ASI Narender
then the same has to be proved in evidence. No such statement is proved
on record. The correct recording of DD no. 87B mentions return of ASI
Narender at PS on 19.10.2011 at about 6:52 PM whereas he had left PS at
8:06 AM vide DD no. 11A dated 18.10.2011 which creates doubt that PW-
12 was present at police station at 5 PM either to receive instruction from
SHO or to record statement of PW-2 Gaurav. Vide Ex.DW1/A=Mark
PW12/D6, Deputy Secretary Home-1 for Lieutenant Governor of NCT of
Delhi had granted permission to prosecute the SHO Insp. Rajnish Panwar
and PW-12 ASI Narender Singh under Section 197 Cr. PC which shows
that the administrative authorities of the above police person are also prima
facie satisfied that their conduct was not beyond doubt. Hence PW-1 could
not meet SHO at 5 PM at police station on 18.10.2011. Therefore PW-1,
PW-2, PW-5, PW-7 and Brahm Singh could not have reached at police
station at 5 PM to meet the SHO concerned and consequently would not
have met SHO Insp. Rajnish Panwar. The above fact is substantiated by log
book of PCR in evidence of PW-12 ASI Narender Singh which are
Ex.PW12/DX3 and Ex.PW12/D2.
10.44 PW-12 has deposed that HC Girish/PW-21 had reached at the
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spot on motorcycle with PW-12 at 5 PM in the evening incident contrary to
deposition of PW-14 Ct. Vikas in departmental inquiry where he had stated
that ASI Narender with other staff went in Tata 407 at gali no. 8
Wazirabad. PW-21 HC Girish has deposed that after the NDPL raid he did
not return to PS and only SI Yogender had returned at 2:35 PM. HC Girish
has also deposed that he had returned back to PS after electricity raid of
NDPL where he went between 12-12:30 PM and returned at 5 PM. Hence
HC Girish would not have went with ASI Narender for NDPL raid at 11:20
AM at village Jagatpur pertaining to Tata Power. He has also deposed that
the SHO did not reach at the spot till he remained at the spot in the evening
on 18.10.2011 till morning of 19.10.2011. On 18.10.2011 he had left for
night patrolling at about 11:50 PM. He has contradicted himself by
deposing that he does not know if SHO PS Timarpur was present at police
station. He had departed from police station within 10-15 mins after arrival
at PS at 5 PM. Therefore when the SHO has allegedly visited at the spot
between 6:10 PM to 6:45 PM then at that time when PW-21 had not seen
SHO at the spot till evening of 18.10.2011 then it creates doubt about
presence of PW-21 at the spot in the evening incident with PW-12 ASI
Narender or with PW-14 Ct. Vikas. Hence it also creates doubt together
visit at the spot by PW-12, PW14 and PW-21. It also creates doubt about
together presence of PW-12, PW-14 and PW-21 with PW-1, PW-2, PW-5,
PW-7 and Brahm Singh at the spot in the evening incident.
10.45 The Scorpio vehicle whose photos are Ex.P1 to P5 was
alleged damaged by the accused person in the present case with iron rod
and wooden stick. It is deposed by PW-1 that all the four accused person
have damaged the Scorpio vehicle bearing No. HR51 AN 2018 by hitting
with iron rod and Danda. The said Scorpio vehicle was allegedly damaged
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by the accused person from the driver side. It is not deposed by PW-1 in
his examination-in-chief that who drove the said Scorpio vehicle from
police station to the spot. PW-2 has also not deposed in examination-in-
chief that who has drove the Scorpio vehicle from the police station to the
spot of evening incident. PW-7 has also not deposed that they had went in
Scorpio vehicle at the spot. Regarding damage of Scorpio vehicle
prosecution is required to prove the mechanical inspection report of
Scorpio vehicle. In absence of the mechanical inspection report it cannot
be said that whether the accused person have damaged the said Scorpio
vehicle with Danda and rod. Moreso when the said Danda and rod are not
recovered by the police officials. The alleged damage must have to be
shown fresh damage. In fact the Scorpio vehicle was not mechanically
inspected and therefore it cannot be said that there was any damage caused
on the said Scorpio vehicle by Danda and rod much less about whether the
said damage was fresh in nature. Hence it is held that prosecution has
failed to prove that accused person have damaged the said Scorpio vehicle
with Danda and rod. Another fact in reference to the said Scorpio vehicle
are photographs Ex.P1 to P5 vide which stone and bricks are seen lying
inside the boot of the said Scorpio vehicle. Normally the bricks are not
carried in Scorpio vehicle and there is no explanation from PW-1, PW-2,
PW-5 and PW-7 that why bricks were lying inside the Scorpio vehicle.
This lends support to the defence of the accused that the complainant side
had came prepared for aggression and it also supports to the theory that
stone pelting was infact committed at the spot in the evening incident.
When the above bricks were lying in the Scorpio vehicle belonging to the
complainant side without any explanation on record goes to show that the
above brick/stones were carried in the said vehicle for the purpose of
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aggression against the accused person. It is not the case of the prosecution
that damage was done to the Scorpio vehicle by bricks and stone. The
pieces of stones and brick were inside the vehicle as visible in photograph
Ex.PW1/B3. PW-7 has deposed that he had gone in Scorpio car in the
evening incident and the said Scorpio car belong to Mr. Deepak/PW-5.
10.46 There is merit in the submission of ld. Counsel for accused
that when PW-1, PW-2, PW-5, PW-7 and Brahm Singh from the side of
complainant were present and three police person were present which
means total of eight person were present then it is difficult to believe that
eight persons were allegedly overpowered by four of the accused person.
The police officials usually come armed with Lathi and arms issued to
them during course of their service.
10.47 The MLC of PW-1 Ex.PW4/A mentions time of arrival at 6:55
PM which does not record the name of four accused person who had
assaulted him. The MLC of Brahm Singh is Ex.PW4/C mentions time of
arrival at 6:55 PM which does not record the name of four accused person
who had assaulted him. The MLC of Deepak PW-5 is Ex.PW4/B mentions
time of arrival at 6:55 PM which does not record the name of four accused
person who had assaulted him. The MLC of PW-7 Bijender Singh is
Ex.PW4/D mentions time of arrival at 6:55 PM which does not record the
name of four accused person who had assaulted him. Thereby it was
incumbent on the part of the PW-1, PW-2, PW-5, PW-7 and Brahm Singh
to immediately intimate on arrival at hospital that how they had received
injury and also by whom. Non mentioning of such person in the above
MLC creates doubt in the story of prosecution that PW-1, PW-2, PW-5,
PW-7 and Brahm Singh were so assaulted only by the accused person.
Sufficient time was available with them to improve their story moresowhen
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the police witness are found not only biased but also vindictive against the
accused person. The name of the accused person were known to
beforehand with the PW-1, PW-2, PW-5, PW-7 and Brahm Singh and the
name of accused person also specifically mentioned in complaint
Ex.PW1/A. Hence it creates doubt that the injuries were received by PW-1,
PW-2, PW-5, PW-7 and Brahm Singh from the accused person and keeping
in view the facts and circumstances that the stone pelting was done at the
spot and large number of public person ranging from 150-200 shows that
injuries could have been received during such altercation between two
groups in which the stone pelting was allegedly involved.
10.48 PW-1 has deposed that he did not inform the doctor the
manner in which injuries were received by him and that they were caused
by whom. It is not disclosed the name of the person in the MLC withwhom
quarrel had taken place. It is matter of record that PW-1 did not make a call
to the police. It is claimed that SHO had reached at the spot prior to his
departure from the spot after receipt of injury. It is admitted that police
might have Lathi charged the public. It is difficult to believe that PW-1
does not know that how many public person had gathered at the spot and it
appears that he does not seek to bring truth on record. This is further
substantiated by the fact that when PW-2 Gaurav had also went with PW-1,
PW-5, PW-7 and Brahm Singh at the spot in the evening incident and he
did not receive any injury. He is youngest person among the other family
member who had allegedly went at the spot in the evening incident. There
is no reason with the accused to spare PW-2 alone and to injure only PW-1,
PW-5, PW-7 and Brahm Singh. This creates doubt about presence of PW-1
at the spot when the alleged altercation had started in the evening incident
or that PW-2 would be at some safe distance to receive an injury in the
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evening incident. The Lathi charge is admitted by PW-1 in cross-
examination though he has again said that he does not remember Lathi
charge which shows that PW-1 does not seek to bring truth on record. The
conduct of police officials is already in grave doubt in this matter. The
Lathi charge at that time remains admitted on record and by not bringing
this fact of Lathi charge in statement under Section 161 Cr. PC proves that
the investigation is totally unfair against the accused person. Hence the
injuries as claimed by PW-1, PW-5, PW-7 and Brahm Singh cannot be
believed and it is held that it cannot be said that alleged injuries received
by PW-1, PW-2, PW-5, PW-7 and Brahm Singh were caused by the
accused person. From the above fact it appears that the complainant side
had reached at the spot only to avenge the incident of morning in which
eve-teasing was conducted by PW-2, Ravi and Aman which was reported
to police by accused no. 1 and in presence of accused no. 2 therefore the
complainant have developed sufficient motive to falsely implicate the
accused person in this case. The circumstances of the case as discussed
above shows that the accused person were aggressors in the present case
who had no reason to be present at gali no. 8 Wazirabad at 6 PM. The
presence of police official is doubtful. The present case consist of
interested and partisan witnesses. The question as to genesis of fight and
the party which had initiated the first attack assume great importance in
reaching the ultimate decision if there are omissions to explain then it may
lead to the inference that prosecution has suppressed some of the relevant
details of the concerned incident which creates reasonable doubt on the
entire story of the prosecution and has effect on the other evidence
available on record which has bearing on origin of the incident. The police
has not conducted any medical examination of the accused person in this
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case and therefore when it is a known fact that there was Lathi charge and
stone pelting at the spot then it was required to medically examine the
accused person to see that if injuries were caused upon the accused person
at all and its effect on the present case.
10.49 The prosecution has failed to prove any motive with the
accused person to beat Mr. Ravi in the morning incident and the injuries, if
any, on Ravi are not proved on record. Hence on the facts of the case the
accused person had no motive or reason to inflict injury upon PW-2, Ravi
and Aman. The PCR form Ex.PW12/D2 has proved that at 6:51 PM on
18.10.2011 there was gathering of about 150-200 person and mild stone
pelting had also occurred. The SHO was also present at the spot. PW-1 has
deposed that he was saved by the police officials when he had fallen on the
ground on beating given by the accused person. PW-1 at page no. 4 of
cross-examination dated 19.10.2013 has deposed that only two police
officials were sent with him namely PW-21 Ct. Girish and PW-14 Ct.
Vikas from PS Timarpur by SHO PS Timarpur. The SHO had told them
that SHO/PW-12 Narender Singh was already available at the spot. To the
contrary PW-12 in his examination-in-chief dated 30.07.2015 has deposed
that SHO PS Timarpur had called him at 5 PM. On reaching there he found
PW-1 alongwith other person at the PS and on direction of SHO he
proceeded at the spot with PW-14 on motorcycle. Hence PW-1 has
contradicted PW-12 since PW-1 has not deposed that he met PW-12 at
police station. PW-2 does not remember if SHO had met them at the spot
or not in the evening incident. Hence this creates doubt regarding presence
of PW-2 in the evening incident as there could not be any doubt either
presence or absence of SHO at the spot who is the senior most officer at
the police station. It is also admitted by PW-1 in his cross-examination that
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stampede had occurred and Lathis were used. Stampede can occur only
when there is large gathering of people. The evidence of use of Lathi and
the sending of police reinforcement proves that because there was large
number of people gathered and the crowd was uncontrollable thereby Lathi
charge was conducted upon the people present there. It is also deposed by
PW-1 that his brother Brahm Singh had fallen on the road at the time of
incident and he had received only one injury on his head.
10.50 PW-7 has stated in his statement under Section 161 Cr. PC
that accused no. 1 Sat Prakash had hit PW-1/Devender only and the said
statement is contradicted by him with his improved version in cross-
examination that he had stated incorrectly in his statement under Section
161 Cr. PC. He has improved his version that accused no. 1 had hit with
Danda on the head of deceased Brahm Singh and also PW-1/Devender.
This is a contradiction and improvement in version of PW-7. Hence it
cannot be said that accused no. 1 had hit the deceased Brahm Singh with
Danda blow on his head. It is deposed in contradiction to PW-1 by PW-7
that police had ran away from the spot when the quarrel had started thereby
he had to shift his brother to hospital. To the contrary PW-1 has deposed in
his cross-examination dated 16.01.2013 at first page that they were saved
by police officials from the accused person otherwise the accused person
had killed them all. Further, there is absence of any explanation by PW-7
that for how long the police officials remained absent from the spot. This
also substantiate the story of accused person that the police person did not
came at the spot in the evening incident and that accused person have
appeared there as aggressor. PW-7 has denied that he gave statement to the
police under Section 161 Cr. PC Ex.PW7/DA that police sent him to
hospital.
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10.51 PW-21 has deposed that PW-12 alongwith PW-14 had left on
one motorcycle to the spot and he had left on one motorcycle to the spot.
Whereas PW-12 has deposed that PW-21 had accompanied him to the spot
in the evening. It is also admitted that as per statement of PW-2 Gaurav,
Deepak PW-5 and Bijender PW-7 only one constable had accompanied
PW-12 at that time for visiting at the spot in evening at 5 PM. It is deposed
voluntarily that PW-12 went to gali no. 8 Wazirabad on his motorcycle and
it is denied that he had reached much later at the spot in the evening
incident after receipt of PCR call. It is denied by PW-12 that Ct. Vikas/PW-
14 had reached at the spot in Tata 407 alongwith reinforcement. PW-14 Ct.
Vikas in vigilance inquiry Ex.PW14/DA had stated that in the evening
between 6-7 PM he alongwith PW-12 and other staff went in Tata 407 for
gali no. 8 Wazirabad. PW-21 HC Girish has deposed that he left for gali no.
8 Wazirabad on his motorcycle on call received from PS Timarpur. PW-21
did not go with PW-14 or PW-12 from the police station to gali no. 8
Wazirabad.
10.52 PW-14 has deposed that ASI Narender/PW-12 was pacifying
people when SHO had reached at the spot which shows that there were
number of people other than accused person who were agitated and need to
be pacified. It is further deposed that suddenly stone pelting had started
there. Hence Ex.PW14/DA in the vigilance inquiry PW-14 has admitted
about stone pelting. The statement as to fact is given by a witness in
another inquiry which is a relevant fact and relevant evidence. Moreso
when the same facts are denied by him in the present proceedings. Hence
the same is admitted by PW-14. Lathi charge is also admitted by PW-14 in
the vigilance inquiry. Hence the evidence of prosecution regarding visit of
police officials PW-12, PW-14 and PW-21 with the PW-1, PW-2, PW-5,
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PW-7 and Brahm Singh has become doubtful and remains unproved on
record. In fact the together visit of PW-12, PW-14 and PW-21 has also
remained doubtful in view of infirmities and inconsistencies found in the
deposition of above witness. Hence it cannot be said that the police had
went at all with PW-1, PW-2, PW-5, PW-7 and Brahm Singh at the spot in
the evening incident. At the most it can be said that PW-1, PW-2, PW-5,
PW-7 and Brahm Singh had went together at the spot without any
instructions from the police with the sole purpose to settle there score
against accused person since accused no. 1 had intimated the conduct of
PW-2, Aman and Ravi to the police in the morning incident and that during
such eve-teasing in the morning the said person was beaten by public
person. Therefore it is not the police who has went to the house of accused
person to make inquiry but only PW-1, PW-2, PW-5, PW-7 and Brahm
Singh had went in their vehicle to the said place at gali no. 8 Wazirabad at
the house of accused person to which they had no right to go in this
manner and make inquiries. When the stones are found in their Scorpio
vehicle shows that they did not go for a peaceful talk. If they had carried
with them any other article for the said purpose cannot be ruled out in view
of the fact that the bricks were found in their Scorpio vehicle.
10.53 It is deposed by PW-21 that police reinforcement came with
Lathi and Danda. The SHO did not reach at the spot at all at the time of
incident and neither PW-12 nor PW-14 had intervened in the incident.
Since as per claim of the prosecution three police official were available at
the spot which has already been disproved in the evidence discussed above.
However three police officials are sufficiently competent to intervene an
untoward incident and they will not intervene only when they were not
present at the spot. Hence the presence of PW-12, PW-14 and PW-21 at the
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spot at gali no. 8 Wazirabad is doubtful at the time of commission of
offence/evening incident. PW-21 had admitted that there was lot of crowd
at the spot and therefore it sustained the evidence that 150-200 people were
present at the spot.
10.54 The evidence in vigilance inquiry discussed above is very
much relevant in the present case and the same can be read in the facts and
circumstances of the case and also in view of citation titled Ashoo
Surendernath Tewari Vs. Deputy Superintendent of Police EOW, CBI &
Anr. (2020) 9 SCC 636 at relevant para no. 11, 12 and 13 wherein it is laid
down that in a case of exoneration on merits where the allegations are
found to be not sustainable at all, the person is held innocent, then the
criminal prosecution on the same set of facts and circumstances cannot be
allowed to be continue for the reason that the underline principle being the
higher standard of proof in criminal cases. It is not disputed that the
vigilance inquiry was conducted not only against accused no. 1 Sat Prakash
Tyagi but also against PW-12 and Insp. Rajnish Panwar was conducted on
the same set of identical facts in which accused no. 1 Sat Prakash Tyagi
was exonerated and PW-12 and Insp. Rajnish Panwar were punished in
departmental proceedings. Hence evidence recorded in vigilance inquiry
on same set of facts is a relevant evidence in this case. The relevant para
are reproduced hereasunder:
In Radheshyam Kejriwal vs. State of West Bengal and Another,
(2011) 3 SCC 581, this Court held as follows:-
“26. We may observe that the standard of proof in a criminal case
is much higher than that of the adjudication proceedings. The
reinforcement Directorate has not been able to prove its case in the
adjudication proceedings and the appellant has been exonerated on
the same allegation. The appellant is facing trial in the criminal
case. Therefore, in our opinion, the determination of facts in the
adjudication proceedings cannot be said to be irrelevant in theSC No. 28366/2016
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criminal case. In B.N. Kashyap [AIR 1945 Lah 23] the Full Bench
had not considered the effect of a finding of fact in a civil case
over the criminal cases and that will be evident from the following
passage of the said judgment: (AIR p. 27)
“… I must, however, say that in answering the question, I have
only referred to civil cases where the actions are in personam and
not those where the proceedings or actions are in rem. Whether a
finding of fact arrived at in such proceedings or actions would be
relevant in criminal cases, it is unnecessary for me to decide in this
case. When that question arises for determination, the provisions of
Section 41 of the Evidence Act, will have to be carefully
examined.”
xxx xxx xxx
29. We do not have the slightest hesitation in accepting the broad
submission of Mr Malhotra that the finding in an adjudication
proceeding is not binding in the proceeding for criminal
prosecution. A person held liable to pay penalty in adjudication
proceedings cannot necessarily be held guilty in a criminal trial.
Adjudication proceedings are decided on the basis of
preponderance of evidence of a little higher degree whereas in a
criminal case the entire burden to prove beyond all reasonable
doubt lies on the prosecution.
xxx xxx xxx
31. It is trite that the standard of proof required in criminal
proceedings is higher than that required before the adjudicating
authority and in case the accused is exonerated before the
adjudicating authority whether his prosecution on the same set of
facts can be allowed or not is the precise question which falls for
determination in this case.”
12. After referring to various judgments, this Court then culled out
the ratio of those decisions in paragraph 38 as follows:-
“38. The ratio which can be culled out from these decisions can
broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be
launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before
initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are
independent in nature to each other;
(iv) The finding against the person facing prosecution in the
adjudication proceedings is not binding on the proceeding forSC No. 28366/2016
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criminal prosecution;
(v) Adjudication proceedings by the reinforcement Directorate is
not prosecution by a competent court of law to attract the
provisions of Article 20(2) of the Constitution or Section 300 of
the Code of Criminal Procedure;
(vi) The finding in the adjuication proceedings in favour of the
person facing trial for identical violation will depend upon the
nature of finding. If the exoneration in adjudication proceedings is
on technical ground and not on merit, prosecution may continue;
and
(vii) In case of exoneration, however, on merits where the
allegation is found to be not sustainable at all and the person held
innocent, criminal prosecution on the same set of facts and
circumstances cannot be allowed to continue, the underlying
principle being the higher standard of proof in criminal cases.”
13. It finally concluded:
“39. In our opinion, therefore, the yardstick would be to judge as to
whether the allegation in the adjudication proceedings as well as
the proceeding for prosecution is identical and the exoneration of
the person concerned in the adjudication proceedings is on merits.
In case it is found on merit that there is no contravention of the
provisions of the Act in the adjudication proceedings, the trial of
the person concerned shall be an abuse of the process of the court.”
10.55 Hence it has come on record that dispute had started at 5:55
PM and at that time no police person were available at the spot. The
prosecution witness/police person namely PW-12,PW-14 and PW-21 were
not present at the spot by 5:55 PM and at that time the dispute between
accused and the complainant party had already started. The prosecution
witness PW-1, PW-2, PW-5, PW-7 and Brahm Singh were therefore not
present at the spot at 5:55 PM with any police person nor it is proved on
record that any prior information was available with the police regarding
reaching of PW-1, PW-2, PW-5, PW-7 and Brahm Singh at the house of
accused person at gali no. 8 Wazirabad. There is inherent inconsistencies
and improbabilities in the evidence of prosecution witnesses and therefore
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it cannot be ruled out that PW-1, PW-2, PW-5, PW-7 and Brahm Singh
themselves were aggressors in the present case on the accused person who
went armed at the spot with stones and therefore the preparation in this
respect was made before reaching at the spot. Hence it is held that
prosecution has suppressed the genesis and origin of the occurrence of the
crime. The only course left open is to grant benefit of doubt to the accused
person. When the PW-1, PW-2, PW-5, PW-7 and Brahm Singh are seen as
aggressors then accused person are within their rights to use legitimate
force to protect themselves from the aggression. The relevant citation titled
Bhagwan Sahai & Ors. Vs. State of Rajasthan Manu/SC/0669/2026 at
relevant para no. 8 is reproduced hereasunder:
8. The aforesaid view of the High Court is devoid of legal merits.
Once the Court came to a finding that the prosecution has
suppressed the genesis and origin of the occurrence and also failed
to explain the injuries on the person of the accused including death
of father of the appellants, the only possible and probable course
left open was to grant benefit of doubt to the appellants. The
appellants can legitimately claim right to use force once they saw
their parents being assaulted and when actually it has been shown
that due to such assault and injury their father subsequently died.
In the given facts, adverse inference must be drawn against the
prosecution for not offering any explanation much less a plausible
one. Drawing of such adverse inference is given a go-bye in the
case of free fight mainly because the occurrence in that case may
take place at different spots and in such a manner that a witness
may not reasonably be expected to see and therefore explain the
injuries sustained by the defence party. This is not the factual
situation in the present case.
10.56 It was laid down in case titled Nand Lal & Ors. Vs. The State
of Chhattisgarh Manu/SC/0230/2023 that when the prosecution has
suppressed the information regarding the manner in which the incident had
started and thereby real genesis of the incident was suppressed then it
creates doubt in the case of the prosecution which goes to the root of the
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case. It was further laid down at para no. 32 that witness comes in three
category. One is wholly reliable, second wholly unreliable and the third is
neither wholly reliable nor wholly unreliable. In the present case the
witness are both interested and injured witness. However the quality of
their evidence as discussed above in this case comes in the category of
wholly unreliable witness and therefore doubt has arisen in the case of the
prosecution benefit of which must go to the accused. The relevant para no.
29 and 32 are reproduced hereasunder:
29. We have already seen herein above the injuries sustained by
accused No. 11 Naresh Kumar. Much prior to lodging of the FIR at
03.15 AM on 4th November 2006 by Khomlal, the Police had
taken accused No. 11 Naresh Kumar for medical examination. The
memo forwarding accused No. 11 Naresh Kumar for medical
examination to Medical Officer mentions that accused No. 11 had
informed the police that at around 08.30 PM, he was assaulted by
Atmaram (PW-1). Undisputedly, the prosecution has suppressed
information with regard to the said incident. The prosecution has
also suppressed the FIR lodged by Atmaram (PW-1). It is thus
clear that the prosecution has attempted to suppress the real genesis
of the incident. Taking into consideration this aspect of the matter,
coupled with the non-explanation of the injuries sustained by
accused No. 11 Naresh Kumar, we are of the considered view that
accused No. 11 Naresh Kumar is entitled to benefit of doubt.
32. Undisputedly, the present case rests on the evidence of
interested witnesses. No doubt that two of them are injured
witnesses. This Court, in the case of Vadivelu Thevar v. The State
of Madras, has observed thus:
“11. ……Hence, in our opinion, it is a sound and well-established
rule of law that the court is concerned with the quality and not
with the quantity of the evidence necessary for proving or
disproving a fact. Generally speaking, oral testimony in this context
may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no
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or may acquit on the testimony of a single witness, if it is found to
be above reproach or suspicion of interestedness, incompetence
or subornation. In the second category, the court equally has no
difficulty in coming to its conclusion. It is in the third category of
cases, that the court has to be circumspect and has to look for
corroboration in material particulars by reliable testimony,
direct or circumstantial……”
10.57 It is further laid down in citation titled Pardeep Khatri & Ors.
Vs. State of Delhi Manu/DE/2809/2014 Equivalent/Neutral Citation:
2014:DHC :5864-DB, 2014(4)JC C 3003 Hon’ble High Court of Delhi Crl.
A. 1564, 1660/2013 and Crl. A. 1000/2014 Decided On: 11.11.2014 at
relevant para no. 6 that when a finding is given in a record maintained
during normal course of duty if relevant for defence at a murder trial the
Court would be bound to consider them moreso for the reason that an
unproved document can be read in evidence against a party who has filed
the document and thus relied upon it. In the said case the PCR form were
relied upon. The relevant para is reproduced hereasunder:
6 . The relevance of what we have noted hereinabove would be that
if the entries marked ‘DY’ on the first PCR form, only first portion
whereof has been exhibited as Ex.PW-7/A, was proved and so was
the last entry marked ‘D2’ on the second PCR Form, limited
portion whereof was proved as Ex. PW-21/A, it would assume
significance that the relatives of the deceased who claimed to be
eye witnesses did not volunteer the necessary information to the
police officers who had reached Saroj Hospital by around 01:00
hrs. But it is nobody’s case that said entries were not made at the
Police Control Room at the time noted against each entry. Finding
a mention in a record maintained during normal course of duty, if
relevant for the defence at a murder trial, the Court would be
bound to consider them, more so for the reason an unproved
document can be read in evidence against a party who has filed the
document and has thus relied upon it.
10.58 In the present case the PCR form and vigilance inquiry report,
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the judgment of Hon’ble JJB, acquittal of accused no. 1 in departmental
inquiry are most relevant evidence which has come from an independent
source and their exhibiting was not objected by the prosecution during
recording of evidence. Therefore they have stood proved and can safely be
relied upon.
10.59 The complainant has relied on the fact that they are injured
witness of the prosecution and their testimony has to be believed in any
case. However the same is not the settled law. Even in the citation relied by
the complainant when the injured witness themselves are a interested
witness and when in their deposition comes material inconsistency and
contradiction then they become wholly unreliable witness which is already
discussed in evidence above. The discrepancies pointed out in the evidence
above are not in the nature of normal errors or minor inconsistencies but
there are material contradictions and improvements which goes to the root
of the case of the prosecution. Further, the medical evidence discussed
below also goes against the case of prosecution and in favour of accused
person which is not repeated herein for the sake of brevity as they are
discussed below in separate para. Hence it is held that PW-1, PW-2, PW-5,
PW-7 and Brahm Singh are seen as aggressors in the evening incident
against the accused person.
(III) PLEA OF ALIBI TAKEN BY ACCUSED NO. 1 SAT PRAKASH
TYAGI
11. ASI Sat Prakash had taken plea of alibi that he was not present at the
spot in the evening and he had gone to old seelampur to buy the invitation
cards for the marriage of his daughter. ASI Sat Prakash/accused no. 1 had
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received the information of incident on telephone through his brother.
Witness Ct. Dharmender and Ram Dular Yadav had deposed in favour of
ASI Sat Prakash in that inquiry. From the shop of Ram Dular Yadav cards
were purchased by ASI Sat Prakash between 5-6 PM and call from brother
was received at 5:38 PM. The first PCR call was received at 6 PM and
definite conclusion could not drawn regarding absence of ASI Sat Prakash
at the spot.
11.1 It is submitted by the ld. Counsel for accused no. 1 and 2 that the
above accused were not present at their home in the evening when the PW-
1 allegedly went with police official at the house of accused no. 1 after 5
PM. PW-1 has deposed at page 2 that he alongwith his brothers Brahm
Singh and Bijender Singh with his son Deepak/PW-5 and Gaurav/PW-2.
They first went to the police station met the SHO and apprised them about
the quarrel with PW-2/Gaurav. Thereafter SHO sent ASI Narender
Singh/PW-12 and Ct. Girish/PW-21 with them to Gali no. 8 village
Wazirabad. PW-1 with his brothers and sons went from PS in his Scorpio
vehicle to Gali no. 8 village Wazirabad, Delhi and police officials went on
their motorcycles.
11.2 Ld. Counsel for the accused has relied on evidence of DW-7 and
DW-9 to substantiate plea of alibi. DW-7 Sh. Vikramjit Suri has deposed
that he know accused no. 2 Mohit Tyagi as they used to play volleyball
together at Tyagi Farm House in the year 2011. On 18.10.2011 at about
4:30 PM till 6:30 PM DW-7 went together to play volleyball at Tyagi Farm
House in the year 2011. They returned together at the house of accused no.
2 Mohit Tyagi towards to his house. Reaching near the house of accused
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no. 2 Mohit he found crowd of 150-200 person outside and near his house.
Those person belongs to Jagatpur village who were carrying Lathi/Danda
and stones in their hands. He stood behind the crowd. Accused Mohit
started going towards his house. The SHO was standing. The crowd got
aggressive and started using Lathis and stones. DW-7 went backward.
Police had Lathi charged the crowd and DW-7 went to his house due to
fear. While returning he saw accused Sat Prakash Tyagi coming from main
road towards his house having packet in his hands. In cross-examination it
is deposed that play ground of volleyball was situated about 150/200 mtr.
from the house of accused no. 2 Mohit. The accused Mohit could have
reached his house within 2-3 minutes from playground. While Scorpio car
was parked at the spot outside the gali of the house of accused no. 2 Mohit.
DW-7 is resident of Wazirabad who used to Jagatpur to purchase articles.
He again met accused no. 2 Mohit in the year 2017-2018. The distance
between house of DW-7 and the house of accused no. 2 Mohit is about 500
mtrs. The Scorpio vehicle was in fine condition when he reached at the
spot.
11.3 DW-8 ASI Ravinder has deposed that on 18.10.2011 he was posted
at old Seelampur police chowki. At about 5-6 PM accused no. 1 Sat
Prakash came to him for purchase of marriage card for his daughter’s
marriage to be held in November 2011. DW-8 was on duty till late evening.
There was a marriage card factory in his beat area and the name of the
owner is Ram. The factory did not have any name. Accused Sat Prakash
Tyagi was posted at PS ODRS and accused Sat Prakash Tyagi had came to
him on that day. Since the factory was situated in his beat area he visited
with accused no. 1 Sat Prakash during his duty time at the said factory of
Ram for the purpose of purchase of marriage card.
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11.4 DW-9 HC Mool Chand had got duty roster for 18.10.2011 of PS Old
Delhi Railway station (ODRS). As per duty roster Ex.DW9/A(OSR)
accused no. 1 Sat Prakash was on duty from 9 AM to 6 PM. He has no
personal knowledge of the case and he was working at PS ODRS since
01.05.2023. Ex.DW9/A which is duty roster at page no. 683 of the
document file shows ASI Sat Prakash/accused no. 1 on duty from 9 AM to
6 PM as driver to SHO. It is argued by the ld. Counsel for the accused that
distance between ODRS and Jagatpur is about 10-15 kms. It is submitted
that the incident had occurred at about 5:30 PM. Accused no. 1 Sat Prakash
was driver to SHO ODRS between 9 AM to 6 PM.
11.5 It is deposed by PW-12 at page 13 of cross-examination dated
06.09.2019 that he had made inquiry from the office of accused no.1 Sat
Prakash Tyagi and in the next sentence he retracted his above statement
and deposed that he did not make inquiry of the accused no. 1 Sat Prakash
Tyagi. He does not remember if during investigation he obtained CDR of
mobile no. 9968201389 of accused no. 1 Sat Prakash Tyagi.
Ex.PW12/DX3 copy of letter addressed to Airtel for providing CDR of
above mobile number is put to PW-12 where he has identified his
signatures at point A which shows that though the CDR was applied by
PW-12 and by necessary implication he had read it and had not filed the
same on record. It is true that prosecution can rely documents of its choice
but when a document applied during investigation from independent party
of impeccable character and when the same goes against the case of the
prosecution and it is withheld then it shows that the investigation of the
case was not done in a fair manner. Hence the conduct of PW-12 during
investigation has become doubtful. It shows that he had investigated the
plea of alibi of the accused no. 1 Sat Prakash Tyagi.
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11.6 It is submitted by the State that accused no. 2 Mohit has went to play
volleyball and therefore the accused person have admitted presence of
accused no. 3 and 4 at the spot.
11.7 Complainant through ld. APP for the state has submitted that accused
no. 1 and 2 has raised plea of alibi. It is submitted that the accused no. 1
Sat Prakash Tyagi in his statement under Section 313 Cr. PC in answer to
question no. 38 that why this case is against you has stated that he went to
PS ODRS and doing duty. He had received telephonic call at 5:38 PM from
his brother Ram Kumar Tyagi. It is submitted that accused has so stated in
his statement under Section 313 Cr. PC after about 11 years and therefore
he had much time to think and create a defence. Above submission cannot
be accepted in the facts and circumstances of the case as the statement
under Section 313 Cr. PC has to be recorded only after recording of all
prosecution evidence. No prejudice can be caused to the accused for the
fact that in recording of such evidence time of about 11 years was taken.
11.8 It is argued on behalf of complainant through ld. APP for the state in
examination-in-chief dated 19.11.2014 of PW-7/Bijender it is deposed that
accused no. 1 Sat Prakash gave Danda blow on the head of Devender/PW-
1 and the deceased Brahm Singh. It is further submitted that in cross-
examination dated 05.01.2015 of PW-7 it is denied that accused no. 1 Sat
Prakash and accused no. 2 Mohit were not present at the spot.
11.9 It is argued on behalf of complainant through ld. APP for the
state that Section 11(2) of Indian Evidence Act the plea of alibi cannot be
sustained. It is submitted that the plea of alibi has to satisfy the above
provision of law. The accused has to make out the fact alleged by them as
relevant fact so highly probable or improbable in connection with other
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facts the existence or non-existence of any fact in issue. It is submitted that
as per own claim of accused no.1 Sat Prakash Tyagi at 5:38 PM he was on
duty at PS ODRS. PW-8 has deposed that between 5-6 PM the accused no.
1 Sat Prakash was at old Seelampur. It is submitted that hence accused
cannot be present at the same place and time at two different place. If the
accused was on duty at ODRS then he cannot be purchasing cards for
marriage of his daughter at new Seelampur. It is further submitted that
DW-8 is an interested witness as he himself went into marriage of daughter
of accused no. 1. Contrary to the above fact DW-9 has deposed that
accused no. 1 was on duty from 9 AM to 6 PM.
11.10 It is argued on behalf of complainant through ld. APP for the
state that in reference to the plea of alibi raised by accused no. 2 the
accused no. 1 Sat Prakash Tyagi in answer to question no. 38 in his
statement under Section 313 Cr. PC has admitted the presence of accused
no. 2 Mohit at the spot. DW-7 has deposed that accused no. 2 can reach
within 2-3 minutes to his house from the Tyagi Farm House in the year
2011. It is submitted that accused no. 1 and 2 were present at the spot as
there absence is not highly improbable.
11.11 In case titled Ashok Verma Vs. State of Chhattisgarh (2024) it
was held that the plea of alibi would be available only if the “elsewhere
place” is that much far of which makes it extremely impossible or
improbable fo the person concern to reach the place of occurrence and
participate in the offence on the relevant date and time. It is only a rule of
evidence recognized under Section 11 of Evidence Act. The illustration (a)
was also given that whether a committed a crime at Calcutta on certain
date then the fact that on such date (a) was at Lahore is relevant. Accused
has to be so far away from the place of occurrence that it is extremely
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improbable that he would have participated in the crime. In a crime in
which physical injury was inflicted the burden is still on the prosecution to
prove that accused was present at the seen of crime despite taking of
defence of alibi. This the plea of defence is need to be considered only
when the burden is discharged by the prosecution satisfactorily and only
after that need for raising this plea arises. To prove with absolute certainty
to exclude the possibility of presence of accused at the place of occurrence.
Once the prosecution has proved the above fact then normally the Court
would be slow to believed any counter evidence that accused was present
elsewhere until accused produce evidence of such a quality and standard
that the Court may entertain some reasonable doubt. In such circumstance
the burden on the accused is heavy and strict proof is required. When the
prosecution has proved its case against the accused and when the accused
is found to be giving a false plea of alibi then it would be regarded as
additional circumstance against the accused in strengthening the chain of
circumstances already found against him. However the above circumstance
could not be a sole link or sole circumstance on the basis of which
conviction could be passed. The aid of false defence lead by the accused
could not be used to lend assurance of the Court when the case of the
prosecution is based on circumstantial evidence. Relevant para no. 11 to 17
are reproduced hereasunder:
Criminal Appeal No. 815 of 2022 Ashok Verma vs. The State of
Chhattisgarh (19.12.2024 – SC) : MANU/SC/1366/2024
11. We will now consider the question whether the contention of
the Appellant that the plea of alibi was considered perversely,
especially without properly appreciating the evidence of DW-1. In
the decision in Binay Kumar Singh v. State of Bihar
MANU/SC/0088/1997 : 1996:INSC:1260 : AIR 1997 SC 322, this
Court took note of the meaning of the Latin word ‘alibi’ as
‘elsewhere’ and observed and held that the said plea would beSC No. 28366/2016
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available only if that ‘elsewhere’ is a place which is that much far
off making it extremely impossible or improbable for the person
concerned to reach the place of occurrence and participate in the
offence concerned on the relevant date and time. Paragraph 22 and
23 of the said decision which is relevant for the purpose reads thus:
22. We must bear in mind that an alibi is not an exception (special
or general) envisaged in the Penal Code, 1860 or any other law. It
is only a Rule of evidence recognised in Section 11 of the Evidence
Act that facts which are inconsistent with the fact in issue are
relevant. Illustration (a) given under the provision is worth
reproducing in this context:
The question is whether A committed a crime at Calcutta on a
certain date; the fact that on that date, A was at Lahore is relevant.
23. The Latin word alibi means “elsewhere” and that word is used
for convenience when an Accused takes recourse to a defence line
that when the occurrence took place he was so far away from the
place of occurrence that it is extremely improbable that he would
have participated in the crime. It is a basic law that in a criminal
case, in which the Accused is alleged to have inflicted physical
injury to another person, the burden is on the prosecution to prove
that the Accused was present at the scene and has participated in
the crime. The burden would not be lessened by the mere fact that
the Accused has adopted the defence of alibi. The plea of the
Accused in such cases need be considered only when the burden
has been discharged by the prosecution satisfactorily. But once the
prosecution succeeds in discharging the burden it is incumbent on
the Accused, who adopts the plea of alibi, to prove it with absolute
certainty so as to exclude the possibility of his presence at the
place of occurrence. When the presence of the Accused at the
scene of occurrence has been established satisfactorily by the
prosecution through reliable evidence, normally the court would be
slow to believe any counter-evidence to the effect that he was
elsewhere when the occurrence happened. But if the evidence
adduced by the Accused is of such a quality and of such a standard
that the court may entertain some reasonable doubt regarding his
presence at the scene when the occurrence took place, the Accused
would, no doubt, be entitled to the benefit of that reasonable doubt.
For that purpose, it would be a sound proposition to be laid down
that, in such circumstances, the burden on the Accused is rather
heavy. It follows, therefore, that strict proof is required for
establishing the plea of alibi. This Court has observed so on earlier
occasions (vide Dudh Nath Pandey v. State of U.P.
[MANU/SC/0137/1981 : 1981:INSC:27 : (1981) 2 SCC 166; State
of Maharashtra v. Narsingrao Gangaram Pimple
[MANU/SC/0158/1983 : 1984:INSC:201 : (1984) 1 SCC 446.
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12. In the context of the afore-extracted paragraphs, it is relevant to
note that in the case on hand, the Appellant was bound to explain
what happened on that day at his house by virtue of Section 106 of
the Evidence Act since the Appellant and the deceased were man
and wife and the incident had occurred in the house where they
were residing. Therefore, he was bound to explain and establish the
same as it is a fact, exclusively within his knowledge, by concrete
evidence, if he fails to establish the plea of ‘alibi’.
13. In the case on hand, the Appellant convict took up the plea of
alibi on the ground that he was in a nearby garden to the place of
occurrence at the relevant point of time. DW-1 deposed that the
Appellant was with him during that period in the nearby Maitri
Garden and returned from there between 6 pm and 7 pm and he got
down near the lane of his house. Furthermore, he would depose
that thereafter, the Appellant came back and told him that Pushpa
hanged herself and then he proceeded to the house of the Appellant
and the noose was cut and she was taken to hospital.
14. As held in Binay Kumar Singh’s case (supra), strict proof is
required to establish the plea of alibi. There is absolutely no
evidence establishing that DW-1 was there in the garden during the
said period. Then, how his version could be relied on by the
Appellant to establish the plea of alibi. That apart, the very fact is
that the Appellant took up the plea of alibi on the ground that he
was in a nearby garden itself would be sufficient to throw the case
put forth by him as defence, in the light of Binay Kumar Singh’s
case (supra). The plea of alibi, in the light of the decision in Binay
Kumar Singh’s case (supra) can be applied only if the ‘elsewhere
place’ is far away from the place of occurrence so that it was
extremely improbable or impossible for the person concerned to
reach the place of occurrence and to participate in the crime on the
relevant date and time of occurrence. In such circumstances, we
are of the considered view that the said contention was rightly
rejected by the Courts below.
15. The effect of false plea of alibi was considered by this Court in
Babudas v. State of M.P. MANU/SC/0361/2003 : (2003) 9 SCC 86
and in G. Parshwanath v. State of Karnataka
MANU/SC/0614/2010 : 2010:INSC:525 : (2010) 8 SCC 593. In G.
Parshwanath’s case, this Court held that when the Accused gave a
false plea that he was not present on the spot, his statement would
be regarded as additional circumstance against him strengthening
the chain of circumstances already found firm.
16. In the decision in Babudas‘s case (supra), this Court held that in
a case of circumstantial evidence, a false plea of alibi set up by the
Accused would be a link in the chain of circumstances but then it
could not be the sole link or sole circumstances based on which a
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conviction could be passed.
17. In the decision in Paramjeet Singh v. State of Uttarakhand
MANU/SC/0762/2010 : 2010:INSC:647 : (2010) 10 SCC 439, this
Court held that the aid of false defence led on behalf of Accused
could be used to lend assurance to the Court when the case of the
prosecution is established on the basis of circumstantial evidence.
11.12 Ld. Counsel for the accused no. 1 has argued that accused no.
1 was not present at home at the time when the alleged incident had
occurred in which the deceased Brahm Singh had expired. DW-11 HC
Lalit has produced vigilance inquiry file in which CDR of mobile no.
9873686854 belonging to Ram Kumar Tyagi has been filed. The true copy
of CDR is Ex.DW11/A (at page no. 691 of the document file). From the
mobile number referred above belongs to accused no. 3 had called on
mobile number of accused no. 1 i.e. 9968201389 and the said call log is
mentioned at serial no. 36 of Ex.DW11/A at 5:38:32 PM for a duration of
69 seconds. It is submitted that accused no. 1 and 3 were together at home
then there is no need for accused no. 3 to call accused no. 1 at that time on
mobile phone.
11.13 Ld. Counsel for the accused has argued that PW-21 HC Girish
Chander vide Ex.PW21/DX2 (at page no. 261 of the document file) vide
DD no. 47B dated 18.10.2011 had went at about 11:20 AM for the purpose
of NDPL raid. Vide DD no. 68B dated 18.10.2011/Ex.PW21/DX3 (page
no. 263 of the document file) they had returned from NDPL raid at 2:35
PM at the PS. Thereafter no departure entry was made from PS after 2:35
PM and they did not go to the spot.
11.14 The PW-12 ASI Narender Singh has deposed that at about 5
PM he was called by PS Timarpur where he found injured Gaurav
alongwith his father Devender, uncle Brahm Prakash and Bijender.
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Whereas vide DD no. 25A dated 18.10.2011 Ex.PW12/DX8 the SHO Insp.
Rajnish Panwar at about 1 PM went alongwith HC(driver) Anand Pal and
Ct. Anil Kumar for attending JJB-III in gypsy no. DL1CJ3861. Vide DD
no. 39A dated 18.10.2011 (page no. 359 of the document file) the SHO had
returned at 6:10 PM alongwith gypsy and staff at the police station. The
vigilance inquiry report Ex.PW22/DX4 (page no. 241 of the document file)
also records that SHO was not present at the spot. The complaint is
contrary to all the above facts where Ex.PW1/A records that at 5 PM they
had met SHO in the police station.
11.15 Ex.PW21/DX4 which is DD no. 111B dated 18.10.2011
records that Ct. Girish/PW-21 had returned to police station at about 11:50
PM in the night and he had departed for Jagatpur. Vide Ex.PW14/DA (at
page no. 227 of the document file) which is statement of PW-14 Vikas in
the vigilance inquiry where he has stated that ASI Narender with other staff
had went in Tata vehicle to village Wazirabad at gali no. 8. He also went
with ASI Narender. To the contrary PW-12 in his deposition dated
06.09.2019 at page 9 has deposed as correct that as per statement recorded
by him of Devender only Ct. Girish had accompanied him to the spot at 5
PM. It is also admitted as correct as per statement of Gaurav, Deepak and
Bijender and only one constable had accompanied at that time. It is also
admitted as correct that in the statement under Section 161 Cr. PC of
Gaurav, Devender, Deepak and Bijender he had mentioned that the above
person with him and one constable had left together for gali no. 8
Wazirabad in Scorpio vehicle. At page 10 it is denied that Ct. Vikas/PW-14
had reached at the spot in Tata 407 alongwith reinforcement after the
incident whereas in Ex.PW14/DA it records that they went in Tata 407.
11.16 Keeping in view the evidence discussed in the body of this
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judgment and the finding arrived it is held that the prosecution has failed to
prove that the injuries on PW-1, PW-2, PW-5, PW-7 and Brahm Singh
were inflicted by the accused person as alleged by the complainant. Hence
prosecution has failed to discharge burden of proof levied upon it. Hence it
is held that prosecution has failed to satisfactorily discharge burden of
proof and only after such discharge need arises to consider the plea of the
accused which is defence of alibi. Even after that the plea of alibi which is
defence of the accused no. 1 and accused no. 2 is considered. The accused
no. 1 was on duty at that time and he was not present on duty but he went
to old Seelampur Chowki as per his own claim. In this respect the evidence
of DW-8 is oral evidence which is orally rebutted by ld. APP for the state.
If the mobile phone call was made by accused no. 3 Ram Prakash Tyagi to
accused no.1 Sat Prakash Tyagi then the said calls have to be proved by
location and CDR but the same are not proved on record. DW-8 was doing
personal favour to accused no. 1 by going with him for purchase of
marriage cards for accused no. 1. He had also attended marriage of
daughter of accused no. 1 in November 2011. Hence DW-8 is a personally
interested witness and not an independent party of impeccable character.
Hence the presence of accused no. 1 at the spot cannot be excluded with
absolute certainty as far as sustenance of plea of alibi is considered. The
evidence produced by accused no. 1 in raising this plea is not of such a
quality or standard such that this Court may entertain some reasonable
doubt in reference to his plea when the burden on accused is heavy and
strict proof is required.
11.17 Similarly the absence of accused no. 2 at the spot in the
evening incident in reference to plea of alibi cannot be sustained by
evidence of DW-7. The oral evidence of DW-7 is rebutted by oral
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suggestion by ld. APP for the state. DW-7 was seeing that there was pelting
of stones and Lathi charge. However it is admitted that it takes 2-3 mins
reaching from Volleyball ground to the house of accused no. 2 Mohit Tyagi
then it does not make it extremely improbable that accused no. 2 was not
present at the spot in the evening incident to consider the plea of alibi.
11.18 However it is already held above that the need for
consideration for plea of alibi does not arise in this case since the
prosecution has failed to prove that the accused person have inflicted
injury on PW-1, PW-2, PW-5, PW-7 and Brahm Singh or that the incident
has happened in the way claimed by the prosecution. Hence benefit of
doubt is extended to the accused person.
(IV) MEDICAL/FSL EVIDENCE ON MURDER OF SH. BRAHM
SINGH (DECEASED)
12. PW-11 Dr. K.K. Choudhary has deposed as correct that operation of
the patient was normal and his general condition was stable who was
discharged from hospital on 29.10.2011. Patient was again admitted in the
hospital on 28.11.2011 with complainant of weakness and headache who
was discharged on 15.12.2011. During this period another surgery was
conducted on him for brain abscess. He was discharged under stable and
normal condition. Two pieces of stone were found in the brain for which
the patient was operated for the first time and the stones were removed.
Ex.PW6/DA (at page no. 117 of the document file) which is certificate in
respect of one injury only.
12.1 PW-20 Dr. Rajender Kumar, Retd. Deputy Director, FSL has
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deposed that on 13.02.2012 two sealed parcel were received in the
laboratory from SHO Timarpur, Delhi pertaining to this case. On biological
examination blood was detected on Ex.1 and Ex.3 and the biological report
is Ex.PW20/A. The serological report is Ex.PW20/B. Cross-examination of
this witness is nil. In FSL report Ex.PW20/A parcel 01 contains Ex.1 which
is greenish brown gauze cloth piece/blood cloth piece. Parcel 03 is Ex.3 in
glass bottle contains two small stones. The result of analysis the blood was
detected both on Ex.1 and Ex.3. The Ex.PW20/B is FSL result from
biology division which reports that Ex.1 pertains to species of human
origin and blood group marking is ‘O’. Similarly it further records that
Ex.3 the small stone pieces has blood of human origin. However it does
not react with blood group ‘A’, ‘B’ or ‘O’ blood group. Ex.PW1/C is
photograph showing injury on the head of Brahm Singh, the deceased. The
photograph Ex.PW1/B-1 to Ex.PW1/B-5 are photographs of damaged
Scorpio vehicle showing broken glass and two pieces of bricks lying inside
the vehicle. The Scorpio car is Ex.P-1.
12.2 PW-6 Dr. Asitesh Bajwa in cross-examination dated 19.11.2014 at
page 3 (page no. 409 of evidence file) has deposed as correct that the
patient had sustained injury on 18.10.2011 and expired on 10.01.2012 i.e.
after 85 days. At page 4 of the same evidence it is deposed that it is
possible that the fissured fractured line extending from lower margin of the
scalp defect to the soft calus was due to surgical procedure on which PW-6
cannot give definite comment. It is deposed as correct that patient had
developed septicemia, abscess and necrosis. It is further deposed as correct
that the head injury by itself was not sufficient to cause death in the present
case. It is volunteered by PW-6 that the death was result of cranio-cerebral
damage consequent upon septicemia resulted after the surgery. It is further
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admitted as correct that as per Ex.PW6/DA the certificate two stone pieces
were removed from brain after surgery on 24.02.2011. It is also admitted as
correct that as per MLC of Brahm Singh Ex.PW4/C and the postmortem
report there was only one head injury on the deceased Brahm Singh. It is
further deposed after going through report of Tirath Ram hospital
Ex.PW6/A and MLC the injury no. 1 mentioned in the postmortem report
is possible after a hit by a stone/brick and it is highly unlikely to be caused
by Lathi or rod since there were stones in the injury recovered by the
doctors of Tirath Ram hospital. It is replied by PW-6 to the Court question
that it is not possible that only one injury would have been caused both by
Lathi and stone if the injured had fallen on the road/floor after being hit by
Lathi and in that case there would have been two or more injuries. Hence
PW-6 has ruled out the injuries to be caused by Lathi or rod since there
was one injury.
12.3 PW-2 at page no. 2 and 3 of his examination-in-chief dated
16.01.2013 has deposed that his uncle Brahm singh deceased was treated at
trauma centre. When his condition was detoriated then they took him to
Tirath Ram hospital on 22.10.2011 where he remained admitted for a
week. From Tirath Ram hospital the deceased Brahm Singh was
discharged after about one week. After 15-20 days his condition again
deteriorated and he was again admitted to Tirath Ram hospital where he
was operated. No improvement was shown in his health on which he was
shifted to Maharaja Agarsen hospital and operated there. On 10.01.2012
his uncle Brahm Singh had expired. The deceased Brahm Singh was
expired after 84 days after receipt of alleged injuries on 18.10.2011 and it
is a very long time and there is no direct nexus with the death of late Sh.
Brahm Singh and the incident dated 18.10.2011.
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12.4 It is deposed by PW-2 at page 5 of his cross-examination dated
19.11.2013 that Brahm Singh had received only one injury on his head.
The deceased Brahm Singh was operated on his scalp injury and pieces of
stones were removed from those injuries. Brahm Singh was discharged
from hospital on 29.10.2011 who had remained at home till 27.11.2011.
12.5 PW-5 in his examination-in-chief dated 05.08.2014 at page 2 has
deposed that accused Sat Prakash hit with Danda on the head of Sh.
Devender Singh father of PW-5/Deepak. It is further deposed that accused
no. 1 Sat Prakash had also hit on the head of his Tau/Brahm Singh. It is
deposed by PW-7 that deceased Brahm Singh was his cousin brother and
his mobile number on the day of incident was 9810746294. Ld. Counsel
for accused has argued that only one injury was received by deceased
Brahm Singh on his head. PW-7 at page 1 of his examination-in-chief
dated 19.11.2014 has deposed that accused no. 1 Sat Prakash had given
Danda blow on the head of Devender and Brahm Singh. PW-6 Dr. Asitesh
Bajwa has deposed that only one head injury was there on the deceased
Brahm Singh which was having scar mark of 4x1cm on right frontal
parietal region which was 6.7cm above right eyebrow. It is argued by ld.
Counsel for accused that in this injury stones were found and there was
only one injury which is deposed by PW-6 at page 4 of his cross-
examination. Two pieces of the stone were removed from brain after
surgery on 24.02.2011. As per MLC of Brahm Singh Ex.PW4/C and the
postmortem report there was only one head injury on the patient. The MLC
Ex.PW6/A from Tirath Ram hospital showing injury no. 1 which is on the
head is possible after being hit by a stone/brick and it is highly unlikely to
be caused by Lathi or rod since there were stones in the injury which were
recovered by doctors at Tirath Ram hospital. This opinion was given by
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PW-6 on the basis of report of doctor of Tirath Ram hospital. It is also
deposed at page 5 that it is not possible to have only one injury when the
person is hit both by Lathi and stone or when after receiving the Lathi the
person fall on the road subsequently on his head. In that event there would
be two or more injuries.
12.6 The incident is dated 18.10.2011 at about 6 PM and the death of
Brahm Singh had occurred on 10.01.2012 at about 2:35 AM. Hence the
death of Brahm Singh had occurred after about 84 days from the date of
incident. In the meanwhile the deceased has also under went surgery on
24.10.2011 which is proved by Ex.PW6/DA(at page no. 117 of the
document file) it mentions that the patient had underwent surgery and bone
pieces and two pieces of stone were removed. Cranioplasty was done. At
page 79 of document file vide MLC Ex.PW4/C the deceased Brahm Singh
was examined. It is deposed by PW-6 Dr. Asitesh Bajwa, Specialist from
forensic at page no. 3 of cross-examination as correct that it is possible that
sub-scalp bruising mentioned in the examination-in-chief can be result of
these operations. As per certificate Ex.PW6/DA the patient was conscious,
oriented and moving all limbs and was stable after his first surgery on
24.10.2011.
13. Photocopy of MLC which is Ex.PW12/DX14 of Rohit Tyagi (at
page no. 375 of document file) whereby the patient was admitted at 8:20
PM on 18.10.2011. DD no. 101B dated 18.10.2011 was lodged at 9:10 PM
which is at page no. 45 of document file. It is submitted that accused no. 2
Mohit had reached later at the spot in the evening and thereafter he had
taken his brother Rohit to hospital. The Ex.PW4/B at page no. 467 of case
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file is photocopy of entire DD entry register A and B which are Ex.DW4/B
and Ex.DW4/C dated 18.10.2011. It is submitted that there is no
explanation by the prosecution on the injuries suffered by the accused
person.
13.1 Ld. APP for the state has submitted that at page 3 of examination-in-
chief of PW-1 dated 27.11.2012 it is deposed that accused no. 1 Sat
Prakash gave Danda blow with full force on the head of PW-1. It is
submitted that the same is corroborated by Ex.PW4/A (at page no. 75 of
the document file) where it is recorded that the patient has alleged physical
assault. Injuries on the skull and arms are mentioned. PW-2 Gaurav
received Danda injury on his head whose MLC is Ex.PW3/A (at page 81 of
the document file).
13.2 It is argued on behalf of complainant through ld. APP for the state
that Ex.PW6/DA (the inquest papers and the certificate), Ex.PW6/DB
(death summary) and Ex.PW6/DC (death certificate) were not produced or
prepared by PW-6 and therefore he cannot depose on them. It is submitted
that PW-6 Dr. Asitesh Bajwa is a Specialist from forensic Subzi Mandi of
AAA hospital. It was for the accused to cross-examine such document
from the doctor who had prepared them and PW-6 cannot depose about
such documents Mark Ex.PW11/A which is CT scan (head report) and
Ex.PW6/DA (the inquest papers and the certificate) as such examination
was done by PW-11 and not by PW-6. It is submitted that when PW-11 is
not cross-examined on such documents then PW-6 also could not be
examined on document which were not prepared by him. The above plea
on behalf of the complainant is heard and rejected for the reason that when
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PW-6 who had conducted postmortem on the body of deceased Brahm
Singh then he is competent to depose on the entire medical history and
cause of death of the deceased. It is not about the technical aspect that who
had prepared the document but it is about competency of the witness who
has deposed on such facts. It is submitted that no cross-examination from
PW-9 Dr. Deepak Bajaj was done by the accused person in respect of
Ex.PW6/DA, Ex.PW6/DB and Ex.PW6/DC though PW-9 had prepared the
death report. It is argued that as per deposition of PW-11 Dr. K.K.
Choudhary dated 08.10.2025 two pieces of stone were found in the brain of
deceased/Brahm Singh. The said two pieces of stone were not seized by
the IO and PW-11 was not cross-examined on Ex.PW6/DA, Ex.PW6/DB
and Ex.PW6/DC. PW-11 was not cross-examined regarding septicemia on
the deceased Brahm Singh. It is submitted that PW-6 Dr. Asitesh Bajwa
had not prepared MLC on the deceased Brahm Singh and therefore he is
not competent to depose on the nature of injury and cause of death on
Brahm Singh. It is submitted that PW-6 is deposing contrary to his
examination-in-chief. Firstly, the medical competency of PW-6 to depose
on such facts is not disputed in his examination. Secondly, cross-
examination of such aspect was not objected to by the state when the PW-6
was cross-examined on such aspect. Now at the stage of final arguments
without any objection at the stage of evidence these objections at this stage
of final arguments cannot be permitted on the proved documents.
13.3 It is incumbent on the part of prosecution to prove that PW-1, PW-2,
PW-5, PW-7 and Brahm Singh had received injuries by Lathi and rod and
such evidence has to be seen with medical evidence. Only one injury was
received by deceased Brahm Singh on the head out of which two pieces of
stone were removed by PW-11 which were removed surgically. As per
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postmortem report only one head injury was there on the deceased Brahm
Singh and it is also admitted by PW-2 that only one injury was received by
the deceased Brahm Singh. When the deceased had expired on 10.01.2012
and injuries were received on 18.10.2011 then the total period comes to 84
days. Hence on 84th day the deceased had expired after receipt of injury.
The operation of deceased was done by PW-11 and was found stable then
discharge was made on 29.10.2011 who was re-admitted after about one
month on 28.11.2011 and discharged again on 15.12.2011. In the surgery
done on 24.10.2011 two stone pieces were removed vide certificate
Ex.PW6/DA. Hence the stone pieces were removed after about six days of
receipt of injury. Later the patient had developed septicemia abscess and
necrosis. Hence it cannot be ruled out that the patient had developed
septicemia abscess and necrosis later on due to which his condition was
deteriorated and thereafter he had expired. It is deposed by PW-6 as correct
that head injury was not sufficient to cause death. Intermittent treatment
was continued to be received by the deceased and he was never under
continuous hospital treatment for the said period. The MLC Ex.PW6/A
from Tirath Ram hospital mentions that the injury was possible after being
hit by stone/brick and it is highly unlikely to be caused by Lathi or rod.
Keeping in view the fact that two stone were recovered from the head
during operation after commission of surgery. No other injury from any
other act was reported by the deceased Brahm Singh. Hence this injury was
inflicted only because of stone injury received by the deceased. Stone
injury was such that it got one hit on the head of the deceased then the two
pieces of stone got broken and remained in the head of the deceased. This
shows that stone injury had much impact on the head of deceased.
However this stone injury was also not sufficient to cause death in ordinary
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course of nature as per deposition of PW-6 and PW-11 as discussed above.
This shows that even if the case of the prosecution is accepted that the
accused person had used Lathi and rod then also it cannot be said that the
deceased was hit by such Lathi and rod. It has to be proved by medical
evidence that injuries were received by the deceased by Lathi and rod. The
MLC of deceased Brahm Singh Ex.PW4/C (at page no. 79 of document
file) does not prove any injury by Lathi and rod on the deceased. Similarly
the MLC from Tirath Ram hospital Ex.PW6/A (page no. 133 of document
file) does not prove any injury by Lathi and rod. Both the MLC mentions
about physical assault and did not mention assault by Lathi and rod. Hence
from the evidence discussed above it has come on record that the deceased
was not hit by Lathi or rod nor he had sustained any injury by Lathi or rod
and therefore it is held that deceased Brahm Singh was not injured by Lathi
and rod. The deceased Brahm Singh was therefore not expired on such hit
by any Lathi or rod by the accused person. Hence it is held that the accused
person had not committed offence against the deceased punishable under
Section 304/302/34 IPC.
13.4 The MLC of Rohit Tyagi Ex.PW12/DX14 which is in photocopy
who is brother of accused no. 2 Mohit. The said MLC also mentions
physical assault. Five injuries are reported. One injury is lacerated wound
over scalp about 2x½ cm, bruise over back is about 2x2cm and pain in
chest is reported. Kind of weapon reported is blunt. Pain and swelling on
left hand and also in abdomen. This MLC is not brought on record by the
prosecution which shows that fair investigation was not done in the present
case. The MLC of other accused is also not brought on record in evidence
by the prosecution. In the MLC Ex.PW12/DX4 the kind of weapon was
blunt. Nature of injuries are not reported. Hence the injuries on accused
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person are suppressed and unexplained by the prosecution. The genesis of
crime is also suppressed by the prosecution since PW-1, PW-2, PW-5, PW-
7 and Brahm Singh had not visited with the police official PW-12, PW14
and PW-21 at the spot. Hence the incident did not start in the evening by
questioning of police person at the house of the accused. It is deposed by
PW-2 that accused no. 1 was standing at the corner of the gali when police
person had discussion with accused no. 1 and before that the complainant
side did not have any conversation with accused person. PW-1 has deposed
that accused no. 1 was standing in front of his house when police had
started making inquiry from him and at that time accused no. 2, 3 and 4
came out from their house. Hence as per PW-1 accused no. 1 was not
standing in the gali and he was standing in front of his house when the
police officers were making inquiry from accused no. 2 Mohit. PW-5 has
deposed that accused no. 1 was standing outside his house in the gali.
13.5 The PW-1 has deposed that accused no. 1, 3 and 4 came out of their
house with Danda and rod and accused no. 1 Sat Prakash gave Danda blow
with full force on the head of PW-1. The MLC of PW-1 is Ex.PW4/A and
out of all the injuries mentioned in the MLC one injury was reported on top
of the head. If the accused no. 1 had hit with full force and gave a Danda
blow on the head of PW-1 then PW-1 must have received a serious injury
on the head. PW-4 in cross-examination has deposed that he is not aware
that on the scalp injuries were incised looking lacerated wounds as in case
of injury by a blunt object. Therefore he could not say that whether the
injury was caused by sharp and blunt object. He had not mentioned
regarding bleeding from injury no. 1 of PW-1. He cannot say whether the
injury was cut laceration, girding laceration or split laceration. It is
admitted as correct that from the type of laceration the weapon used in the
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offence cannot be ascertained. The injury on PW-7 Bijender which are
abrasions is a bruise having rail road pattern and which can be caused
when a person falls on a projection. The injury on the back are possible by
fall. The injury on Pinna can be caused by a scratch by nail. It is admitted
as correct that he had not given shape and colour of injuries on
Deepak/PW-5 and the MLC is Ex.PW4/B. It is deposed that he cannot say
the manner in which injury were caused on Brahm Singh in MLC
Ex.PW4/C. PW-1 has deposed at page no. 3 of his examination-in-chief
that other police officials had reached at the spot when they had fallen
down after being beaten by kicks and fist blows. It is deposed at page 2 of
cross-examination dated 23.01.2014 that SHO had reached at the spot prior
to their departure from the spot. It is deposed that police person came
subsequently armed with Lathi and Danda. In cross-examination dated
02.06.2014 at page 1 PW-1 does not know that how many police person
had reached at the spot. At page 2 it is deposed that police had intervened
during the incident which is contradicted to his earlier deposition that
police did not intervene to save them.
13.6 PW-1 in examination-in-chief dated 27.11.2012 at third page has
deposed that when all of them had fallen on the ground then other police
officials also reached at the spot and the police officials accompanying
them were also present at the spot in the evening incident. To the contrary
PW-14 has deposed at page 4 of his cross-examination dated 19.03.2019
that only PW-12, PW-14 and PW-21 were present at the time of second
incident. No other police official was present. He did not make call to the
police on the second incident. The injured were taken to hospital around 7-
8 PM. PW-21 in his examination-in-chief dated 04.09.2019 has deposed
that PW-12 had sent the injured person to the hospital. At page 4 of cross-
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examination dated 23.01.2014 PW-1 has deposed that only three police
officials are present and they did not intervene. He does not know if the
PCR had reached there. PW-2 at page 5 of his cross-examination dated
19.11.2013 has deposed that around 20-25 person came at the spot when
quarrel was going on and it is deposed that police person who had came
alongwith them had tried to intervene. PW-1 at page 2 of cross-
examination dated 23.01.2014 has deposed that they did not make a call to
the police. However call to the police was made from the mobile phone
call from the side of accused person. It is deposed that when they were
lying in the gali neither SHO nor any other police officer took them to
hospital in their vehicle in the evening incident. There were many public
person at the spot. The police might have Lathi charged the public. The
same is deposition of PW-1 in cross-examination dated 23.01.2014.
However stone pelting is denied. The name of accused person is not
disclosed by PW-1, PW-2, PW-5, PW-7 and Brahm Singh to the attending
doctor which creates doubt that the assault was caused by accused person
and also regarding presence of accused no. 1 Sat Prakash Tyagi at the spot.
PW-5 is confronted at page 5 of his cross-examination dated 05.08.2014
having stated in his statement Ex.PW5/DA that police official had
accompanied them in their Scorpio vehicle. At page 2 of cross-examination
dated 19.11.2014 of PW-7 it is deposed that the PCR had reached at the
spot after 10-15 mins of their reaching at the spot and SHO did not come to
the spot. Other police person had reached after 5-7 mins of arrival of PCR
officials. At page 3 of cross-examination dated 19.11.2014 it is deposed by
PW-7 that PCR officials, police officials who had come alongwith them
and the police officer who came later had tried to intervene. The Santro car
DL 2CAE 1639 belonging to PW-7 was found present at the spot and PW-7
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has deposed that he came in the Scorpio car and not in the Santro car.
When the Santro car was present at the spot then prosecution has not made
clear that who were the person who came in the Santo car at the spot. It is
deposed by PW-12 at page 9 of his cross-examination dated 06.09.2019 as
correct that as per statement recorded by him of PW-1 only Ct. Girish PW-
21 had accompanied him at 5 PM at the spot. Also as per statement of PW-
2, PW-5 and PW-7 only one constable had accompanied him and none of
the statement had mentioned about PW-14 Ct. Vikas. It is also admitted as
correct that in the statement under Section 161 Cr. PC of PW-1, PW2, PW-
5 and PW-7 he had mentioned that they together with PW-12 and PW-21
went to gali no. 8 Wazirabad in Scorpio vehicle. At page 10 it is deposed
that SHO reached at the spot and at that time the quarrel had already
finished. The contents of log book are admitted by PW-12. PW-14 at page
2 of his examination-in-chief dated 08.10.2015 has deposed that all the
injured person were shifted to Trauma Centre by IO/PW-12 leaving PW-21
at the spot. Whereas the PW-1 has not stated that the IO had taken him to
the hospital. PW-14 at page 4 of his cross-examination dated 19.03.2019
has deposed that only he alongwith PW-12 and PW-21 were present at the
spot and no other police official was present. It is deposed that PW-2 had
sustained head injures whereas in the present matter PW-1 has claimed that
he had sustained head injuries and PW-2 has claimed that he did not
sustain any injuries in the evening incident. PW-21 to the contrary has
deposed in his examination-in-chief that he had left the police station on
his motorcycle to attend the evening incident. Hence PW-12 alongwith
PW-14 had left the PS on their motorcycle. At page 2 it is deposed that
PW-12 had sent PW-1, PW-2, PW-5 and PW-7 to the hospital contrary to
deposition of PW-1. PW-21 at page 8 of his cross-examination dated
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04.09.2019 has deposed that at the time of quarrel neither he nor other
police person had tried to intervene since there were three police person
and there was lot of crowd at the spot.
13.7 In such view of the matter it is found that prosecution witness have
improved their stories from time to time. It is proved on record that PW-12,
PW-14 and PW-21 did not reach at the spot with PW-1, PW-2, PW-5, PW-
7 and Brahm Singh in the evening incident. Therefore the evening incident
had not transpired in the manner claimed by the prosecution. The PW-1,
PW-2, PW-5, PW-7 and Brahm Singh person have visited the place of
accused person. The PW-12 did not make inquiry from the accused person
at the door of their house as the visit of PW-12 alongwith PW-14 and PW-
21 at the spot has become doubtful. Therefore the complainant has visited
with his associates as aggressors to the house of accused person. The
injuries on Rohit Tyagi vide MLC Ex.PW12/DX14 are unexplained. The
MLC of the accused person is not filed on record. The testimony of the
prosecution witness is found with full of inconsistencies and
improbabilities. The nature of injuries also does not match with the injuries
proved on record and received by the deceased Brahm Singh. The damage
on Scorpio vehicle HR 51AN 2018 is also not proved on record. The rod
and Danda allegedly used by accused person were not proved on record as
they were not recovered. Other than this even their sketch and size is also
not proved on record by the prosecution witness. There was motive with
the complainant to falsely implicate the accused person keeping in view
the morning incident when the complaint was made to PCR against PW-2,
Ravi and Aman was lodged by accused no. 1. It has come in evidence that
stone pelting has been committed and Lathi charge was also committed by
the police person. Lathi charged could be done when there is large number
SC No. 28366/2016
FIR No. 227/2011
State Vs. Sat Prakash Tyagi Page 116 of 117
of gathering of public person and it has come in evidence that 150-200
person had gathered at the spot in the evening incident. Therefore injuries
on PW-1, PW-2, PW-5, PW-7 and Brahm Singh by stone pelting is more
probable then allegedly claimed to be done by wooden Danda and rod.
14. In such view of the matter, it is held that prosecution has failed to
prove all the charges levelled against all the accused person. Hence
accused person namely Sat Prakash Tyagi, Mohit Tyagi, Ram Kumar Tyagi
and Pappu @ Jai Prakash Tyagi stands acquitted for the offence under
Section 302/304/308/427/34 IPC. The earlier personal bond of all the
accused stands cancelled and surety bond stands discharged. The
documents, if any, be returned to the surety and endorsement on security
documents is allowed to be de-endorsed. In terms of Section 481 of
BNSS/437A Cr. P.C, all the accused have furnished their bail bond as
directed which will be in force for period of six months from the date of
this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Digitally signed
Announced in the open Court JOGINDER by JOGINDER PRAKASH on 06.08.2025. PRAKASH NAHAR NAHAR Date: 2025.08.06 15:21:21 +0530 (JOGINDER PRAKASH NAHAR) ADDITIONAL SESSIONS JUDGE (FTC-01) CENTRAL/TIS HAZARI COURT DELHI SC No. 28366/2016 FIR No. 227/2011 State Vs. Sat Prakash Tyagi Page 117 of 117