JUDGMENT
R.S. Sodhi, J.
1. Criminal Appeal Nos. 903 of 2004, 902 of 2004 and 943 of 2004 seek to challenge the judgment and order of Additional Sessions Judge, Delhi, in Sessions Case No. 1 of 2000, arising out of F.I.R. No. 630 of 1999, Police Station Ashok Vihar, whereby learned judge vide his judgment dated 11.10.2004 has held the appellants, namely, Shambhu, Amarnath, Vinod Kumar and Sudhir @ Pappu, guilty for the offence punishable under Sections 302/307 IPC read with Section 34 IPC for murder of Sampooran. Further vide his order dated 16.10.2004, has sentenced the appellants to imprisonment for life for offence punishable under Section 302/34 IPC together with fine of Rs. 10,000/- each and in default of payment of fine, further rigorous imprisonment for six months each. He has further sentenced the appellants to undergo rigorous imprisonment for five years with fine of Rs. 5,000/- each under Section 307/34 IPC and in default of payment of fine, further rigorous imprisonment for three months each. Both the sentences were directed to run concurrently. The appellants were awarded benefit under Section 428 of Code of Criminal Procedure.
2. Brief facts of the Prosecution case are as follows:
On 12.9.1999 at about 9:30 p.m., one Vinod Kumar, S/o Sh. Tapsu Ram, R/o Jhuggi No. 28, B-413, Chander Shekhar Azad Colony, Wazirpur Industrial Area, Delhi, after taking dinner, came out for urination and heard noise at the khokha of accused Shambhu. On hearing noise, his mother, father, Shanti, Chhedi Lal and other persons also came out. They saw accused Shambhu and Amarnath holding knives in their hands and their servants Pappu and Vinod, S/o Lallan were also with them. Shambhu exhorted Sampooran that he shall be finished today on which Sampooran tried to run away but Amarnath, Pappu and Vinod caught Sampooran and Shambhu gave three-four knife blows continuously on the right side of his chest. On receiving injuries, Sampooran fell down. Shambhu shouted ‘yeh saala zinda na reh jai’. On hearing this, Amarnath gave knife blows on the back of Sampooran. Vinod Kumar intervened and tried to save Sampooran on which Shambhu shouted that he should also be finished. Amarnath, Pappu and Vinod caught him and Shambhu stabbed with knife on his right leg and buttocks and he also fell down. Ram Bali, father of Sampooran also came to the spot, who admitted Sampooran and Vinod in Hindu Rao Hospital. Sampooran was declared brought dead. On the statement of Vinod Kumar, FIR was registered. After completion of investigation, charge was framed against the accused persons to which they pleaded not guilty and claimed trial.
3. The Prosecution in order to establish its case examined as many as 27 witnesses. Of these, PW-1 is Constable Mukesh Kumar. PW-2, Head Constable Ram Pal Singh, proved copy of F.I.R. Exhibit PW 2/A and rukka Exhibit PW 2/B. PW-3 is Constable Vijender. PW-4, Vinod Kumar, is the star witness of the Prosecution. PW-5 is Rambali, father of the deceased. PW-6, Lal Bahadur, uncle of the deceased, identified the dead body and proved his statement Exhibit PW 6/A. PW-7 is Head Constable Dharambir. PW-8, Constable Suresh Kumar, proved DD No. 26, Exhibit PW 8/A. PW-9 is Head Constable Ram Diya, who was working as MHC(M) on that day and proved relevant entries in register No. 19, Exhibit PW 9/A. PW-10, Constable Ashok Kumar, is a formal witness. PW-11, Constable Karambir Singh, photographer who proved photographs Exhibit PW 11/1 to 11/8 and their negatives Exhibit PW 11/9 to 11/16. PW-12, Inspector H.D. Batra is a formal witness. PW-13, Tapsu Ram, PW-14, Kalicharan and PW-15, Shanti Devi, are the eye-witnesses to the incident. PW-16 is S.I. Yashpal Singh. PW-17, S.I. Vijay Pal Singh, proved pointing out memo Exhibit PW 17/A, disclosure statement of accused Shambhu Exhibit PW 17/B and his arrest memo Exhibit PW 17/C. PW-18, Mewati Devi, is another eye-witness. PW-19, Head Constable Subhash Chand is a formal witness. PW-20, S.I. Manohar Lal, Draftsman, who prepared site plan Exhibit PW 20/A. PW-21, Ramjanam is a formal witness. PW-22, Dr. C.B. Dabas, conducted postmortem examination on the body of the deceased Sampooran and proved his report Exhibit PW 22/A. PW-23, Dr. Kavita, proved MLC of the deceased, Exhibit PW 23/A. PW-24 is Inspector Radha Raman. PW-25 is Inspector Haridarshan, Investigating Officer. PW-26, A.K. Srivastav, Senior Scientific Office, FSL, Malviya Nagar, proved reports Exhibit PW 26/A and PW 26/B and PW-27, Dr. C.L. Verma, Senior Medical Officer, Hindu Rao Hospital.
4. It is contended by learned Counsel for the appellant, Shambhu in Criminal Appeal No. 903 of 2004, that he has been falsely implicated in this case and that PW-4, Vinod Kumar, was inimical towards him and, therefore, has deposed falsely. While learned Counsel for the appellant, Sudhir @ Pappu, in Criminal Appeal No. 902 of 2004 and appellant, Vinod Kumar in Criminal Appeal No. 943 of 2004, have argued that the role of these two appellants is merely of preventing the deceased, Sampooran, from running away and that they had no intention of causing any harm or injury of the nature that they knew would result in death of Sampooran. It is further contended that both the appellants, Sudhir @ Pappu and Vinod Kumar, are juvenile and cannot be sentenced, even if found guilty. Learned Counsel for the State, on the other hand, contends that the trial court after due deliberation, has returned a finding that the Prosecution has been able to bring home the guilt of the accused and that there is no reason why this Court should interfere with a well-reasoned judgment.
5. Having heard counsel for the parties and having been taken through the material on record, we find that the star witness of the Prosecution is PW-4, Vinod Kumar, who states that on 12.9.1999 at about 9:30 p.m., he was outside his jhuggi when he heard a noise ‘bachao-bachao’ and saw Shambhu, Amarnath, Pappu and Vinod had surrounded the deceased, Sampooran. The witness identified the accused persons. Appellants Shambhu and Amarnath were having knives in their hands. Accused Shambhu threatened Sampooran saying that he would finish his work, upon which Sampooran tried to run away but was prevented by accused Amarnath, Pappu and Vinod. Accused Shambhu gave 2-3 knife blows on the chest of Sampooran, who fell on the ground. Thereafter, Shambhu exhorted his companions saying ‘saala zinda na reh jai’ upon which Amarnath gave two knife blows on the back side of Sampooran. Accused Shambhu and Amarnath, while slipping away, gave a call that ‘Is saale ko bhi khatam kar do’ upon which Shambhu gave a knife blow on the witness’s right and left thighs as a result of which the witness fell down. At that time, Mewati Devi, PW-18, his mother, and Tapsu Ram, PW-13, his father, as also Shanti Devi, PW-15, Chhedi Lal, Kalicharan, PW-14 and Rambali, PW-5, came to the spot. Rambali and Kalicharan took the witness and Sampooran to Hindu Rao Hospital in a car where they were admitted. The police came to the hospital and recorded his statement Exhibit PW 4/A. The witness identified his trouser Exhibit PW-1 and goes on to say that accused Shambhu gave knife blows to him and the other accused Amarnath, Pappu and Vinod caught hold of him. Pappu was also known as Sudhir Kumar. In cross-examination, the witness states that he has studied up to 10th class with correspondence course. At the time of the incident, he was also studying and working as a labourer with a mason. Sampooran was not studying with him but was living in the neighborhood, that is also the reason why he knew Sampooran. It has been further elicited from this witness that he and Sampooran organized a jaagran in the area and collected money on that account. He denied that there was any quarrel between Sampooran and Surender, cashier, in this regard. At the time of the incident, he had gone to the house of Rambali to collect money for jaagran. He could not tell how many jhuggies were there between house of Rambali and his house and gave a figure of around 100-150. He states that Shambhu had a juice khokha on the main road. It is also elicited from this witness that there is no toilet in his house and that he had to go to the road to urinate. On the fateful night, he had gone to pass urine on the road which was at a distance of 10-15 paces from his house. There was no park abutting the road where people used to urinate. He denied that there was no street light on the entire road. He admits that he heard the noise of Sampooran ‘bachao-bachao’. He does not remember the names of persons other than Rambali, Kalicharan, Chiranji Lal and Shanti, who were present at the spot, however, 100-150 persons had collected there but no other person except this witness came to save Sampooran. He denied that Sampooran was caused injury as a result of quarrel between the witness and Sampooran.
6. The next witness is PW-5, Rambali, father of the deceased, who states that Sampooran was his son and used to work at Rohini. On 12.9.1999 at about 7 p.m., Vinod, living in his neighborhood, came to call Sampooran. After sometime, he went on the road outside his house and saw that Vinod and his son were quarreling. He tried to separate his son but could not separate them. He came back home to call his cousin Inderbali, who Along with him again went there and saw Vinod was stabbing his son, Sampooran, with knife. Accused Vinod after seeing him, ran away. He knew all the four persons present in court, namely, Shambhu, Amarnath, Pappu and Vinod, as they were his neighbours. The witness identified all of them. None of the accused persons had stabbed his son nor any other person was present at the spot on the day of the incident. He took his son to the hospital. This witness was sought to be cross-examined by the Prosecutor. In cross-examination, he states that Shambhu was running a shop of selling illicit liquor but denied that his son Sampooran made a complaint against Shambhu on this account. He denied that Shambhu was arrested on the complaint of Sampooran. He denied the suggestion that accused Vinod Kumar called his son from his house or that his son went Along with accused Vinod. On further cross-examination by counsel for the accused, he states that his signatures were obtained on the blank papers in the police station. He further stated that when his son fell down after being injured, he took him to the hospital. At that time, he did not recover any knife from the hands of his son Sampooran.
7. From an analysis of the evidence of PW-4, Vinod Kumar, it transpires that PW-4 is a eye-witness to Sampooran being caused injuries at the hands of appellants, Shambhu and Amarnath. He has also sustained injuries himself. His testimony has not been shaken by the defense and this witness has supported the Prosecution’s version to the hilt. PW-5, Rambali, has not supported the case of the Prosecution, on the other hand, he blames PW-4 for having caused injuries to Sampooran. However, this witness in his cross-examination stated that the deceased was not armed, in which event, the witness has not been able to explain the injuries sustained by PW-4. In other words, the story put forth by PW-5 is an attempt to save the accused persons, which does not inspire confidence. His version that he took his son to the hospital is also not corroborated.
8. The testimony of PW-4 finds further corroboration from the testimony of PW-13, Tapsu Ram, who states that he was sitting in his house when he heard a noise from outside upon which he and his wife, Mewati Devi, PW-18, went outside and saw Shambhu, Amarnath, Pappu and Vinod have surrounded Sampooran near the juice khokha and Shambhu was saying ‘Saale ko jaan se maar do’. Shambhu and Amarnath had knives in their hands. Amarnath, Pappu and Vinod caught hold of Sampooran while accused Shambhu gave knife blows on the chest of Sampooran. Later on, accused Amarnath also gave 2-3 blows on the back side of Sampooran. His son, Vinod Kumar, PW-4, tried to lift Sampooran. Kalicharan and Rambali took Sampooran and his son to Hindu Rao Hospital.
9. PW-14, Kalicharan, also corroborates version of PW-4. He is a witness to the occurrence and brought a vehicle in which Sampooran and Vinod were taken to Hindu Rao Hospital. PW-15, Shanti Devi, corroborates the version of PW-13 as also lends assurance to the testimony of PW-4 so as the statement of PW-18, Mewati Devi. The testimony of PW-4 is also corroborated by the medical evidence which reveals various injuries on the deceased as also the injuries suffered by PW-4.
10. On re-appraisal of the oral as well as documentary evidence on record, we find that the trial court has correctly analyzed the admissible material while arriving at the conclusion that the appellants are guilty of the offence charged. Consequently, we uphold the judgment of the trial court dated 11.10.2004. However, on the question of sentence in so far as appellants, Shambhu and Amarnath are concerned, we concur with the trial court and uphold its order dated 16.10.2004 to that extent. Appellant Amarnath, who is on bail, shall be taken into custody forthwith. His bail bond stands cancelled.
11. However, coming to the case of appellants, Vinod Kumar and Sudhir @ Pappu, we find that Sudhir @ Pappu was juvenile on the date of the incident. His date of birth is 7.6.1984 and the date of the incident is 12.9.1999, therefore, he is entitled to the protection afforded to a juvenile under the Juvenile Justice (Care and Protection of Children) Amendment Act, 2000 as has been held by the Supreme Court in ; Pratap Singh and Anr. v. State of Jharkhand. As regards appellant, Vinod Kumar, Ossification Test was directed to be carried out where his bone age was between 20-23 years on 24.2.2005. In other words, on the date of the occurrence, i.e., 12.9.1999, he would be below 18 years. He too would be entitled to the protection under Juvenile Justice (Care and Protection of Children) Act, 2000 amended on 26.8.2006 as interpreted by the Supreme Court in AIR 2000 SCC 2111; Umesh Singh and Anr. v. State of Bihar. Consequently, we set aside the sentence qua appellants, Sudhir @ Pappu and Vinod Kumar. They are on bail. Their bail bonds stand cancelled and sureties discharged. Criminal Appeal Nos. 903 of 2004, 902 of 2004 and 943 of 2004 are disposed of in the above terms.