Mahesh @ Kale v. State

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J. March 06, 2009 Dharmender

* IN THE HIGH COURT OF DELHI % Judgment reserved on : 04.03.2009 Judgment delivered on : 06.03.2009 + CRL.A.827/2008 MAHESH @ KALE ..... Appellant Through: Mr.S.K.Sharma, Mr.Dhruv Kumar and Mr.Mayank, Advocate versus STATE ..... Respondent Through: Mr.Pawan Sharma, Advocate CRL.A.5/2009 JITENDER @ JEETU ..... Appellant Through: Mr.Anand Saini, Advocate versus STATE ..... Respondent Through: Mr.Pawan Sharma, 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. 1. On 7.9.2002 at 2.10 PM, Const.Meenakshi PW-7, recorded DD No.25-B, Ex.PW-7/A on an information received through the police control room that near house No.N-228 Maddi Wali Gali, near Khyala School, a quarrel had taken place. Soon thereafter, at 2.26 PM, on information given by one Chander, same information was re-recorded vide DD No.26-B, Ex.PW-7/B. 2. ASI Gyan Chand PW-22, accompanied by Head Const.Ram Narain PW-6, reached the given place as recorded in the two DD entries and found Hem Raj PW-3, at house No.N-228 Vishnu Garden, who made the statement Ex.PW-3/A recorded by ASI Gyan Chand PW-22, in which he informed that he resides with the other family members at house No.N-228 Vishnu Garden and that Mahesh and Jitender (the appellants) also reside in the same locality and some-time back had teased his sister-in-law because of which his brother Prakash, had a fight with them. That today, at around 1.30 PM, he and Prakash were walking towards Raghubir Nagar and had reached gali No.7, block NA Vishnu Garden, when the appellants who were armed with hockey sticks stopped them and started quarreling with his brother Prakash; they said that they would see as to who would save him today. Both started hitting Prakash on his head with hockey sticks. Prakash fell down and became unconscious. He raised a hue and cry. Both the appellants fled. 3. ASI Gyan Chand made an endorsement Ex.PW-22/A on the statement Ex.PW-3/A and sent HC Ram Narain for registration of an FIR. At 3.50 PM, ASI Kailash Chand PW-5, registered the FIR, Ex.PW-5/A. 4. Though not recorded in the statement Ex.PW-3/A, Hem Raj informed ASI Gyan Chand that his brother Prakash had been removed to Guru Gobind Singh Government Hospital by his brother Chandra Bhan PW-2 and his sister Sunita. ASI Gyan Chand went to the hospital and attempted to record the statement of the injured who was not certified fit for statement by the doctor. ASI Gyan Chand returned and accompanied by Hem Raj went to the spot pointed out by Hem Raj where his brother was assaulted i.e. at gali No.7. ASI Gyan Chand prepared the site plan Ex.PW-22/E. He called a photographer, Dheeraj Kumar PW-8, who took two photographs Ex.PW-8/A and PW-8/B; negatives whereof are Ex.PW-8/A1 and Ex.PW-8/B1 respectively. From the place of the occurrence ASI Gyan Chand lifted blood sample and blood stained earth vide seizure memo Ex.PW-6/A. 5. On 8.9.2002 appellant Mahesh was arrested from House No.N-148 Vishnu Garden, Delhi vide arrest memo Ex.PW- 10/C by ASI Gyan Chand and Const.Pushpraj PW-10. Appellant Jitender was also arrested at the instance of Hemraj vide arrest memo Ex.PW-10/D. On interrogation, appellants Mahesh and Jitender made disclosure statements Ex.PW-10/A and Ex.PW10/B respectively, to ASI Gyan Chand as per which they admitted assaulting the deceased with hockey sticks and volunteered to get the same recovered. Appellant Jitender got a hockey stick recovered from the roof of his house which was seized vide memo Ex.PW-10/G and appellant Mahesh also got a hockey recovered from the corner of his house NA-5 Vishnu Garden, which was seized vide Ex.PW-10/H. 6. On 9.9.2002, ASI Gyan Chand visited the trauma centre near Chandgi Ram Akhada, where the injured had been shifted on the advice of the doctor of Guru Gobind Singh Hospital, wh