Birbal & Ors v. State

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J. MARCH 02, 2009 mm

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A.115/2001 % Date of Order: 2nd March, 2009 BIRBAL & ORS. ..... Appellants Through: Mr. Mohit Mathur, Advocate versus STATE ..... Respondent Through: Ms. Richa Kapoor, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. (Oral) 1. The appellants along with Pramod and Sunil were apprehended by the police for the offence of forming a rioting group armed with knives and murdering Moti Lal as also the offence of attempting to murder Ram Dhan. 2. Appellant Birbal is the husband of appellant Om Wati. Raju is the eldest child born to them. Two other co-accused, namely Pramod and Sunil are the younger sons of Birbal and Om Wati. Being minor at the time when the offence was committed they were sent for trial before the Juvenile Court. 3. Thus, in the instant appeal we are concerned with Birbal, his wife Om Wati and their son Raju. 4. For record, we may note that Sunil died during the pendency of trial before the Juvenile Court. Pramod has been convicted and has been lodged in the special home for a period of 3 years. 5. Vide impugned judgment and order dated 29.1.2001, the appellants have been convicted for the offence of murdering Moti Lal. They have been convicted for the offence punishable under Section 307 IPC, as also Sections 147, 148 and 149 IPC. 6. Needless to state, the maximum sentence awarded on the appellants is for the offence of having murdered Moti Lal. The sentences have been directed to run concurrently. Thus, the concern in the appeal is for the offence punishable under Section 302 IPC since the appellants have been admitted to bail after they had undergone the sentence of imprisonment for the other offences. 7. However, we would be noticing all the facts for the reason, if it would stand, the conviction would impinge upon the character of the appellants. 8. Briefly stated, case of the prosecution was that Late Sh. Moti Lal used to object to the activities of Birbal, who as per Moti Lal, used to sell hooch from his shop in the locality under the garb of running a sweat meat shop. That on 16.6.1995, when Moti Lal accompanied by his sons Ram Dhan and Rohtash as also his daughter-in-law (wife of Ram Dhan) Ms. Laxmi were returning to their jhuggi at around 10:00 PM and had crossed the shop of one Banney Ali, appellant Om Wati exhorted her husband and her sons who were armed with knives to teach Moti Lal a lesson; she shouted "ye samaj ke sudharak aa rahe hain, maro koi bachne na paye." At that, Birbal and his sons started inflicting knife blows on the various body parts of Moti Lal. He fell down. When Laxmi attempted to intervene, Om Wati caught Laxmi and Raju stabbed Laxmi. When Ram Dhan intervened he was also stabbed by Birbal and Pramod. When Rohtash intervened to save his father, brother and sister-in-law he was given fist blows. Thereafter, all the accused persons ran away. 9. Moti Lal was declared brought dead at the hospital. MLC Ex.PW-10/A of Laxmi records a stab injury on her scapular region. MLC Ex.PW-10/B of Ram Dhan records two incised wound of 3 cm each in the abdomen piercing till the colon. MLC of deceased Moti Lal records various stab wounds. The injuries stand clearly and explicitly enumerated in his post-mortem report Ex.PW-1/A. He suffered as many as 15 injuries as under:- "1. Abrasion 3 x 1 cms on top of head in mind line. 2. Incize 4.5 x 1 cm into subcutaneous tissue prs. Horizontal on right side face 1 cm below right eye. 3. Incised wound 3.5 x 1 cm into subcutaneous tissue deep present on left upper limb. 4. Multiple abrasions in an area 7 x 4 cms present on front of right knee and adjacent leg. 5. Abrasion 10 x 3 cms present on upper left leg. 6. Incised wounds 2 in number and 4 x 0.5 cms each, super facioucial place in 10 x