Delhi District Court
SC/316/2018 on 3 March, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
SC-316/18
CNR No.DLNE01-004150-2018
FIR: 246/18
Police Station: Khajuri Khas
Under Section: 304 IPC
STATE
V
AMIT GAUTAM S/O OM PRAKASH GAUTAM
R/O H. NO 81, GALI NO.7, D-BLOCK
DAYALPUR
DELHI
INSTITUTION: 01.10.201
ARGUMENTS: 02.03.2020
JUDGMENT:03.03.2020 JUDGMENT
1. The Constitution of India guarantees every citizen protection of life and liberty as a positive right. It cast a duty on State to maintain law and order in society for securing peace and security to citizens. The State to achieve these objectives enacts penal laws, instrumental and symbolic prescribing punishment in case of breach of law and order in society. When any person found guilty of committing breach of right of life, liberty or property guaranteed to citizens then it becomes duty to State to apprehend such person, put to fair trial and punish if found guilty. The aim of Criminal Justice System is to punish the guilty and to protect the innocent. Section 299 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") defines culpable homicide. It reads as under:-
299. Culpable homicide.--Whoever causes death by doing an SC 316/18 STATE V AMIT GAUTAM FIR 246/18 1/20 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.
Section 304 IPC prescribed punishment for offence of culpable homicide not amounting to murder as defines in section 299 IPC. It reads as under:-
304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, 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, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, 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.
2. Shakuntala Devi (hereinafter referred to as 'the deceased') was stated to be owner and residing in House no. 81, D-Block, Gali no.7, Dayalpur (hereinafter referred to as 'the house'). The deceased was having two sons namely Amit Gautam (hereinafter referred to as 'the accused') and Ajit Gautam (hereinafter referred to as 'the complainant'). The deceased and the complainant were present at the house on 17.05.2018 and at about 10.00 pm. The accused who at that time was residing in Krishna Park, Tilak Nagar came and started to talk with the deceased. The accused was saying that the deceased used to quarrel with his wife and on earlier occasions also, the deceased quarreled with the wife of the accused. The accused started to quarrel with the deceased and inflicted fist blows on her face and head. The complainant intervened and tried to save the deceased but the accused after pushing him ran away from the spot. The deceased became unconscious. The complainant called ambulance and the deceased was removed to GTB Hospital.
SC 316/18 STATE V AMIT GAUTAM FIR 246/18 2/20ASI Surender Singh in the intervening night of 17/18.05.2018 was performing his duty as Emergency Officer and DD No.3A was assigned to him. ASI Surender Singh along with Ct. Nikesh reached at GTB hospital and collected MLC of the deceased who was declared unfit for statement. The complainant who was also injured in altercation did not meet ASI Surender Singh. ASI Surender Singh along with Ct. Nikesh in the morning of next day again went to GTB Hospital where he met the complainant and recorded his statement. The deceased was still unfit for statement. ASI Surender Singh prepared rukka. FIR was registered. The accused could not be arrested. The deceased expired on 21.05.2018. Thereafter, further investigation was assigned to Inspector Narender Kumar. Inspector Narender Kumar along with Ct. Kailash on information and pointing of the complainant arrested the accused. Inspector Narender Kumar being investigating officer collected exhibits, prepared site plan and completed other formalities of investigation. The postmortem on the dead body was conducted. Inspector Narender Kumar after completion of investigation charge sheeted the accused for offence punishable under sections 308/304 IPC. The charge sheet was filed in concerned court of the Metropolitan Magistrate.
The copies of charge sheet and annexed documents were supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). The concerned Metropolitan Magistrate vide committal order dated 18.09.2018 committed the case to the Court of Sessions and assigned to this Court for trial in accordance with law.
3. The charge for offence punishable under section 304 IPC was framed against the accused vide order dated 01.10.2018 to which the accused pleaded not guilty and claimed trial.
4. The prosecution examined Monika as PW1, the complainant Ajit Gautam as PW2, Dr. Gaurav Chaurasia, RMO, Max Hospital as PW3, Dr. Shivani Agnihotri as PW4, Dr. Aditya Anand as PW5, Ct. Kailash as PW6, ASI Brijpal as PW7, Mukesh Kumar as PW8, SI Suman Kumar as PW9, Inspector Mahesh Kumar as PW10, HC Zile Singh as PW11, Ct. Satender as PW12, Ct. Nikesh as PW13, ASI Surender Singh as PW14, HC Parmod Kumar as PW15 and Investigating Officer SC 316/18 STATE V AMIT GAUTAM FIR 246/18 3/20 Inspector Narender Kumar as PW16.
PW-1 is the wife of the accused. PW2, the complainant, is the brother of the accused and son of the deceased. PW3 medically examined the complainant. PW4 medically examined the deceased on 18.05.2018. PW5 conducted postmortem on the dead body of the deceased on 22.05.2018. PW6 joined investigation with Investigating Officer Inspector Narender Kumar. PW7 being Duty officer registered the FIR bearing no.246/18 under section 308 IPC on the basis of rukka sent by ASI Surender Singh. PW8 being In charge of CAT Ambulance removed the deceased to the GTB hospital in the intervening night of 17/18.05.2018. PW9 being In-charge of Crime team inspected the spot and prepared the Crime Report. PW10 prepared the scaled site plan of the spot. PW11 was the member of Crime Team and took the photographs of the spot. PW12 deposited the exhibits with FSL. PW13 joined the investigation with ASI Surender Singh. PW14 conducted the initial investigation. PW15 being MHC (M) was entrusted with the case property. PW16 conducted investigation after the death of deceased.
The prosecution proved statement of the complainant as Ex.PW2/A, Copy of register of CAT Ambulance as Ex.PW8/A, MLC of the complainant as Ex.PW3/A, MLC of the deceased as Ex.PW4/A, rukka as Ex.PW14/A, copy of FIR bearing no.246/18 under section 308 IPC as Ex.PW7/A, endorsement on the rukka regarding registration of FIR as Ex.PW7/B, certificate under section 65 B of Indian Evidence Act as Ex.PW7/C, disclosure statement of the accused as Ex.PW6/A, arrest and personal search memos of the accused as Ex.PW2/D and Ex.PW2/E, Crime Team Report as Ex.PW9/A, photographs of the spot as Ex.PW11/1 to Ex.PW11/21, site plan of the spot as Ex.PW16/A, seizure memos of the exhibits as Ex.PW6/C, Ex.PW6/D, Ex.PW2/F, pointing out memo of the spot as Ex.PW6/B, postmortem report of the deceased as Ex.PW5/A, seizure memo of the clothes of the deceased Ex.PW16/B, seizure memo of the blood gauze as Ex.PW16/C, FSL report as Ex.PW16/D, scaled site plan as Ex.PW10/A and relevant entries in register 19 of Malkhana as Ex.PW15/A to Ex.PW15/D. The prosecution evidence was ordered to be closed vide order dated 16.01.2020.
SC 316/18 STATE V AMIT GAUTAM FIR 246/18 4/205. The statement of accused was recorded under section 313 Cr.P.C. vide order dated 19.02.2020 wherein accused pleaded innocence and false implication. The accused stated that his wife PW1 Monika wanted divorce from him and due to this reason he was falsely implicated in the case. He was also having property disputes with his brother. The accused preferred not to lead defence evidence.
6. Sh. Masood Ahmed, Additional Public Prosecutor for the State and Sh. K. N. Sharma, Advocate/LAC for the accused heard. Record perused.
7. The Additional Public Prosecutor argued that the accused wanted to sell the house stated to be owned by the deceased and due to this reason the deceased quarreled with the deceased and caused her death. The defense counsel argued that the prosecution could not prove motive of the accused in committing offence alleged against him.
Section 8 of the Indian Evidence Act, 1872 deals with relevance of Motive in criminal trial. It reads as under: -
8. Motive, preparation and previous or subsequent conduct.
-- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The con- duct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in ref- erence to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
The Supreme Court in Shivaji Genu Mohite V State of Maharashtra, AIR 1973 SC 55observed regarding importance of existence of motive in a criminal case as under:-
In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive SC 316/18 STATE V AMIT GAUTAM FIR 246/18 5/20 is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.
In State of U.P. V Babu Ram, (2000) 4 SCC 515 the Supreme Court has stated that motive is a relevant factor in criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The Supreme Court in Amitava Banerjee V State of West Bengal, (2011) 12 SCC 554 observed that motive for the commission of an offence assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. In Anil Kumar V State, 2011 (5) AD (Delhi) 351 it was held as under:-
Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved.
The Supreme Court in Khurshid Ahmed V State of Jammu & Kashmir, Criminal Appeal No 872 OF 2015 decided on 15 May, 2018 observed that the prosecution may prove but the prosecution is not bound to prove the motive for a crime. Motive is an emotion which compels the person to do a particular act. It will be very difficult for the prosecution to prove the real motive in all cases. Motive is a double-edged weapon when there is direct and reliable evidence available motive loses its importance. In a case of circumstantial evidence motive assumes greater importance than in the case of direct evidence. In a case of direct and compelling evidence even assuming that no motive is attributed, still the prosecution version has to be examined.
8. The prosecution to prove motive of the accused in committing the offence examined Monika, wife of the accused as PW1 who deposed that she had already filed a divorce case against the accused and is residing separately from the accused SC 316/18 STATE V AMIT GAUTAM FIR 246/18 6/20 on rent. PW1 Monika deposed that accused wanted to sell the house no.81, Gali No.7, D- Block, Daylapur which was owned by the deceased. The deceased was not ready and agreed to sell the said house. PW1 Monika subsequently came to know about the death of the deceased due to assault by the accused. PW1 in cross examination deposed that the complainant PW2 informed her about the death of the deceased. A divorce case between the accused and the PW1 Monika was pending adjudication in Tis Hazari Courts. PW1 Monika was residing separately from the accused for the last 3-4 years. PW1 Monika admitted that house was in the name of the deceased and denied the suggestion that the accused was never interested in his share in the house or that the complainant PW2 was interested to take entire house in his name. It is proved from the testimony of PW1 Monika that accused wanted to sell the house of the deceased for which the deceased was not agreed. The accused due to this reason came to the house of the deceased and quarreled with her and ultimately inflicted fatal injuries to the deceased.
9. The role of a witness is paramount in the Criminal Justice System of any coun-
try. A witness has relevant information about a crime. A Witness is an important constituent of the administration of justice. The witness by giving evidence linking to the charge of the offence performs a sacred duty of assisting the court to dis- cover the truth. A witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence. A witness by giving evidence relating to the commission of an offence performs a sacred duty of assisting the court to discover the truth. The witnesses play an integral role in the dispensation of justice. The Supreme Court in Mahender Chawla V Union Of India, Writ Petition (Criminal) No. 156 / 2016 decided on 5 December, 2018 it was observed as under:-
Witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The in- strument of evidence is the medium through which facts, ei- ther disputed or required to be proved, are effectively con- veyed to the courts. This evidence in the form of documen- tary and oral is given by the witnesses. A witness may be a SC 316/18 STATE V AMIT GAUTAM FIR 246/18 7/20 partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with convic- tion of the accused person. Even his testimony is relevant, though, stricter scrutiny is required while adjudging the cre- dence of such a victim. However, apart from these witnesses or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system.
10. The prosecution to prove its case examined sole witness i.e. the complainant as PW2 who supported the case of the prosecution. The defence counsel argued that the testimony of the complainant PW2 is not sufficient to prove guilt of the accused in absence of corroboration. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. It was observed in Kuna @ Sanjaya Behera V State of Odisha, 2017 SCC Online Supreme Court 1336 that the conviction can be based on the testimony of single eye witness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important. The Supreme Court in Veer Singh & others V State of UP, (2014) 2 SCC 455 observed as under:-
Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable.
11. The prosecution case is primarily based on the testimony of the complainant PW2 as no any other eye witness is available. The prosecution does not require number of eye witnesses to prove its case beyond reasonable doubt. Even if there SC 316/18 STATE V AMIT GAUTAM FIR 246/18 8/20 is one eye witness and his testimony is up to the mark, the conviction can be based upon the same. In Namdeo V State of Maharashtra, (2007) 14 SCC 150, the Supreme Court held as under:-
In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone.
However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
12. The complainant PW2 deposed that he was residing with the deceased while the accused was residing in the area of Tilak Nagar separately from the deceased. The deceased on 15/16.05.2018 came to the house at 10.00 am and remained with them for one day. The accused quarreled with the deceased and on hearing the cries, the complainant PW2 came out and noticed that the accused has already pulled down the deceased from the bed. The accused inflicted fist blows on the face of the deceased. The complainant PW2 tried to rescue the deceased but he was pushed by the accused. The accused after giving fist blows to the deceased ran away from the spot. The deceased was taken to hospital in a CAT Ambulance vide entry Ex.PW8/A being driven by PW8 Mukesh Kumar. The complainant PW2 deposed in cross-examination that at the time of incident, he was in adjoining SC 316/18 STATE V AMIT GAUTAM FIR 246/18 9/20 room and after hearing the cries of the deceased he came out from his room. The complainant PW2 saw that the deceased was lying on the bed and covered her face by the hands. The complainant PW2 tried to save the deceased but the accused ran away from the spot after pushing the complainant PW2. The complainant PW2 admitted that accused did not give fist blows on the face of the deceased in his presence. PW2 denied the suggestions that the accused has not committed any assault on the deceased or that the accused never came to the house of the deceased or that the accused was falsely implicated as the complainant PW2 wanted to take entire house or that the deceased sustained injuries as she has fallen down from the bed. The deceased was medically examined by PW4 Dr. Shivani Agnihotri vide MLC Ex.PW4/A who noticed following injuries on the person of the deceased at the time of medical examination:-
i. Lacerated wound over lower lip (1x.5 cm).
ii. Blackening around left eye.
iii. Swelling over zygomatic region.
iv. Bruise Mark near right eye.
v. Swelling over nose.
vi. Swelling in occipital region.
13. The complainant PW2 was medically examined by PW3 Dr. Gaurav Chaurasia who after medical examination of the complainant PW2 found bruises over the chest of the complainant PW2 as reflected from MLC Ex.PW3/A. The presence of injury on person of the complainant PW2 reflects and proved the presence of the complainant PW2 at the spot at the time of incident. The testimony of the complainant PW2 is cogent, consistent and trustworthy and can be safely relied upon. The testimony of the complainant PW2 is not suffering from any infirmity. There is no reason to disbelieve the testimony of the complainant PW2. The combined testimony of the complainant PW2, PW3 Dr. Gaurav Chaurasia PW4 Dr. Shivani Agnihotri who medically examined the deceased vide MLC Ex.PW4/A proved the following facts:
i) The deceased and the complainant PW2 were residing in house no.81, Gali no.7, D-Block, Dayalpur separately from the accused who was residing in the area of Tilak Nagar.
ii) The accused on 17.05.2018 came to the house of the SC 316/18 STATE V AMIT GAUTAM FIR 246/18 10/20 deceased and remained there throughout the day. The accused at 10.00 pm quarreled with the deceased and inflicted fist blows on the face of the deceased. The deceased became unconscious. The accused ran away from the spot after pushing the complainant PW2. The complainant PW2 removed the deceased in CAT Ambulance. The deceased was medically examined by PW4 Dr. Shivani Agnihotri vide MLC Ex.PW4/A and sustained multiple injuries on her face.
The complainant PW2 also received injuries.
14. The defence counsel argued that there are material discrepancies and contradiction in the statement Ex.PW2/A and the testimony of the complainant as PW2. He argued that the complainant PW2 in the complaint Ex.PW2/A stated that the accused on 17.05.2018 came to the house at about 10.00 pm while in deposition deposed that the accused came at about 10.00 am in the house and remained there for one day. The complainant in statement Ex.PW2/A deposed that the accused inflicted fist blows on the head and face of the deceased while in cross-examination admitted that the accused did not inflict fist blows on the face of the deceased in his presence. The defence counsel argued that these are material contradictions and are sufficient to raise substantial doubts as to the guilt of the accused and as such, the accused is liable to be acquitted.
15. Every contradiction discrepancy or improvement is not fatal for prosecution. It is only major contradiction, discrepancy or improvement on material facts shaking very genesis of prosecution case which matters for creating doubt on prosecution case. The Supreme Court in Pawan Kumar @ Monu Mittal V State of Uttar Pradesh and another, (2015) 7 SCC 48 held as under:-
When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
The Supreme Court in Bhagwan Jagannath Markad and others V State of Maharashtra, (2016) 10 SCC 537 observed as under:-
While appreciating the evidence of a witness, the court has to SC 316/18 STATE V AMIT GAUTAM FIR 246/18 11/20 assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence.
Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
The contractions as pointed out by the defence counsel are minor and insignificant and are not fatal to case of prosecution.
16. The accused in statement u/s 313 Cr.P.C. stated that he has been falsely implicated as he was having matrimonial dispute with his wife PW1 Monika and the complainant PW2 being his brother wanted to grab the entire property of the deceased. PW1 Monika in cross-examination denied the suggestion that the accused was not interested for share in the house of the deceased but there is nothing in the cross-examination of PW1 Monika which can reflect that she falsely implicated the accused in the present case. The testimony of PW1 Monika proved that the accused used to quarrel with the deceased to sell the house. The another defence taken by the accused that he was falsely implicated in the case as he was having property disputes with the brother PW2 denied the suggestion that he was interested to take the entire house of the deceased. There is nothing in the cross- examination of the complainant PW2 which can reflect that he falsely implicated the accused in the present case due to property disputes. The defence as taken by the accused is baseless, frivolous, afterthought, sham and without any basis. The defence as taken by the accused is not supported by the evidence on record.
17. The deceased was aged about 65 years. The accused inflicted fist blows on her face. PW4 Dr. Shivani Agnihotri who medically examined the deceased vide MLC Ex.PW4/A found as many as six injuries as mentioned here in above on the face of the deceased. PW5 Dr. Aditya Anand who conducted postmortem on the dead SC 316/18 STATE V AMIT GAUTAM FIR 246/18 12/20 body of the deceased in postmortem report reported following injuries after medical examination:
i) Bluish green contusion of size 8.0 x 3.5 cm present over right side of forehead and face, extending from 5.0 cm above right eyebrow to 3.0 cm below right eyebrow and 5.0 cm to midline.
ii) Bluish green contusion of size 6.0 x 6.0 cm present over left side of face, 5.0 cm to midline and upper end touches left eyebrow with fracture of underlying zygomatic arch, extravasation of blood is present over the fracture ends and in the surrounding tissues.
iii) Bluish green contusion of size 4.0 x 1.5 cm present over nose, 1.5 cm below glabella.
iv) Reddish brown scabbed abrasion of size 3.5 x 1.5 cm present over left side face, 4.0 cm to midline and 4.5 cm below left eyebrow.
v) Superficial lacerated wound of size 0.5 x 0.2 cm x mucosa deep present over the mucosal aspect of lower lip in midline.
vi) Bluish green contusion of size 8.0 x 7.0 cm present over right side front of upper chest, 8.5 cm to midline and 7.0 cm below shoulder top.
vii) Bluish green contusion of size 5.0 x 3.5 cm present over left anterior axillary fold, 9.0 cm below shoulder top.
viii) Bluish green contusion of size 6.0 x 3.5 cm present over medial aspect of left breast, 5.0 cm to midline and 14.0 cm below mid clavicular point.
ix) Incised wound of size 1.5 cm x 0.2 cm x 1.2 cm present obliquely over the lateral aspect of right arm, 6.0 cm below shoulder top. Both ends having acute angle and tailing present towards the anterior end.
PW5 Dr. Aditya Anand also opined that the cause of death was coma as a result of ante-mortem injury to head produced by blunt force impact and all the injuries were ante-mortem in nature. The deceased was admitted in the hospital on the day of incident and remained in the hospital till her death. It reflects and proves that the injuries inflicted by the accused caused the death of the deceased. The postmortem report Ex. PW5/A proved that the deceased died due to fist blows inflicted by the accused.
18. The accused did not commit murder of the deceased with premeditated plan rather the offence was committed in spur of moment. In Jai Prakash V State SC 316/18 STATE V AMIT GAUTAM FIR 246/18 13/20 (Delhi Administration), 1991(2) SCC32, the Supreme Court held as under:
When a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death, it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case. However, as pointed out in Virsa Singh case the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused...
In Pulicherla Nagaraju @ Nagaraja Reddy V State of Andhra Pradesh, (2006) 11 SCC 444, the Supreme Court enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part of the accused. It was observed as under:-
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 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 premeditation. 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 SC 316/18 STATE V AMIT GAUTAM FIR 246/18 14/20 Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder 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..."
In Mangesh V State of Maharashtra, (2011) 2 SCC 123 the Supreme Court held that since the assault was not premeditated and everything happened at the spur of moment upon the accused being overcome by emotions (though not justified) attracted the offence punishable under Section 304 (Part-I) IPC notwithstanding that 6 injuries were caused including on the left side of the chest which is vital part of the body. It was highlighted by the Supreme Court that when a person loses his senses and becomes violent that by itself may not be a ground to be considered against him and a holistic view in the matter has to be taken. This decision highlighted the difference between premeditated acts and acts upon sudden loss of self-control in the heat of passion.
In Chenda Ram @ Chanda Ram V State of Chhatisgarh, 2013 (10) SCALE 637, the Supreme Court has considered its earlier decision right from Virsa Singh V State of Punjab, (1958) 1 SCR 1495; State of Andhra Pradesh V Rayavarapu Punnayya and Another, (1976) 4 SCC 382; Pappu V State of Madhya Pradesh, (2006) 7 SCC 391; Jagriti Devi V State of Himachal SC 316/18 STATE V AMIT GAUTAM FIR 246/18 15/20 Pradesh, (2009) 14 SCC 771; and Gurmukh Singh V State of Haryana, (2009) 15 SCC 635 and observed as under:-
In Gurmukh Singh v. State of Haryana (2009) 15 SCC 635 after scanning all the previous decisions where the death was caused by a single blow, this Court indicated, though not exhaustively, a few factors to be taken into consideration while awarding the sentence. To quote:
23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused.
These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
a) Motive or previous enmity;
b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury;
d) Whether the death ensued instantaneously or the victim died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without pre- meditation in a sudden fight;
h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
i) The criminal background and adverse history of the accused;
j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
k) Number of other criminal cases pending against the accused;
l) Incident occurred within the family members or close relations;
m) The conduct and behaviour of the accused after the incident.
Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to SC 316/18 STATE V AMIT GAUTAM FIR 246/18 16/20 the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused".
The Supreme Court in Dhirendra Kumar V State of Uttarakhand, 2015 (3) SCALE 30 laid down the parameters which are to be taken into consider- ation while deciding the question as to whether a case falls under Section 302 IPC or 304 IPC, which are as under:-
(a) The circumstances in which the incident took place
(b) The nature of weapon used
(c) Whether the weapon was carried or was taken from the spot
(d) Whether the assault was aimed on vital part of body
(e) The amount of the force used
(f) Whether the deceased participated in the sudden fight
(g) Whether there was any previous enmity
(h) Whether there was any sudden provocation
(i) Whether the attack was in the heat of passion
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.
In Lavghanbhai Devjibhai Vasava V The State of Gujarat, 2018(1)JCC565 the Supreme Court after following Dhirendra Kumar observed that Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a sudden altercation which was a result of delay in preparing lunch by the deceased. The appellant picked up a wooden object and hit the deceased. The medical evidence shows that not much force was used in inflicting blow to the deceased. The prosecution has not set up any case suggesting that relationship between the husband and wife was not cordial, otherwise. Manifestly, the incident took place due to sudden provocation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advantage. It was observed that offence would be covered under section 304-II IPC and not under section 302 IPC.
The Delhi High Court in Sher Singh @ Sheru V State, SC 316/18 STATE V AMIT GAUTAM FIR 246/18 17/20 Crl.A.323/1998 decided on 9th January, 2014 after examining the circumstances in which the occurrence has taken place and taking note of the fact that only one injury is attributed to the appellant viewed that the offence committed by the Appellant falls in the category of culpable homicide not amounting to murder which is punishable under Section 304 IPC. The Delhi High Court in Vinod Kumar & others V State (Govt Of NCT of Delhi), Crl. A. 20/2015 decided on 30 May, 2016 observed that it is necessary to prove, first that there was an intention of causing bodily injury; and that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death and to bring the offence within the ambit of exception 1 of Section 300 Indian Penal Code and hence provisions of Section 304 of the Indian Penal Code would be attracted as the appellants had caused such bodily injuries to the deceased which, to their knowledge, were likely to cause death. High Court Of Chhattisgarh, Bilaspur in Ram Kumar V State of Chhattisgarh, CRA No. 1372/2016 decided on 22th July, 2019 after following Lavghanbhai Devjibhai Vasava V State of Gujarat, (2018) 4 SCC 329 and Dhirendra Kumar V State of Uttarakhand,2015 SCC On Line SC 163 observed the appellant was perturbed or rather disturbed due to marriage of the deceased and was not able to reconcile that the deceased would belong to someone else. The appellant inflicted single blow over neck of the deceased and did not repeat blow and as such did not act in cruel manner. The deceased did not die instantly and could have been saved if admitted in the hospital. It was held that the offence would fall under section 304 Part-I IPC and not under section 302 IPC. High Court of Judicature at Allahabad in Khania V State of U.P., Criminal Appeal No. 1558 of 1990 decided on 12 th September, 2019 did not accept argument of defence that as per medical report, only one gunshot injury was found on the body of the deceased and, therefore, the appellant cannot be convicted under Section 302 of IPC and at best he can be convicted under Section 304 Part-I or Part-II of IPC. It was observed that as per prosecution case, it is the appellant, who fired gunshot injury on the appellant, resulting his instantaneous death and the manner in which the deceased was done to death clearly proves the case against the appellant under Section 302 and SC 316/18 STATE V AMIT GAUTAM FIR 246/18 18/20 therefore, he cannot be convicted under Section 304 Part-I or Part-II of IPC.
19. It is apparent and proved from evidence led by the prosecution the accused quarreled with the deceased for property but the act of the accused in attacking the deceased by inflicting fist blows was not premeditated and preplanned. The accused inflicted fatal injuries to the deceased in spur of moment and out of anger. The quality and quantity of evidence led by the prosecution does not reflect that the accused intended to kill the deceased. However the accused was having knowledge that by his acts he is likely to cause death of the deceased.
20. In the adversarial system every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence and cannot be compelled to reply. In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. In case Shivani V State of Maharashtra, AIR 1973 SC 2662 the Supreme Court emphasized that our jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. In State of U.P V Shankar, AIR 1981 SC 897 it was observed that it is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. In Gurbachan Singh V Sat Pal Singh, AIR 1990 SC 209 it was observed that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and there by destroy social defence. In Krishna Mochi V State of Bihar, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values in public life and in present days when crime is looming large and humanity is suffering and society is so much affected thereby duties and responsibilities of the courts have become much more. It was observed as under:-
Now the maxim "let hundred guilty persons be acquitted, but SC 316/18 STATE V AMIT GAUTAM FIR 246/18 19/20 not a single innocent be convicted" is, in practice changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals"
In Sujit Biswas V State of Assam, (2013) 12 SCC 406 it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. The Supreme Court in P. Satyanarayana Murthy V District Inspector of Police and others, (2015) 10 SCC 152 held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. In Jose V Sub Inspector of Police, Koyilandy and others, (2016) 10 SCC 519, the Supreme Court held as under:-
In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".
21. The prosecution could prove from evidence guilt of accused for offence punishable under section 304 Part-II. The accused in view of above discussion is convicted for offence under section 304 Part-II.
SUDHIR Digitally signed by
SUDHIR KUMAR JAIN
Location:
ANNOUNCED IN THE OPEN KUMAR Karkardooma courts,
Delhi
COURT ON 03rd March, 2020 JAIN Date: 2020.03.03
14:51:14 +0530
(DR. SUDHIR KUMAR JAIN)
DISTRICT AND SESSIONS JUDGE, NORTH- EAST
KARKARDOOMA COURTS, DELHI
SC 316/18 STATE V AMIT GAUTAM FIR 246/18 20/20