Delhi District Court
Fir No. 159/2016 State vs . Manoj Mahto & Anr Ps Patel Nagar Page No. ... on 9 February, 2023
IN THE COURT OF SH. MANISH KHURANA:
ADDITIONAL SESSIONS JUDGE: 04, WEST DISTRICT:
TIS HAZARI COURTS : DELHI
CNR No.DLWT01-007335-2016
SC No. 58103/2016
FIR No. 159/2016
PS : PATEL NAGAR
U/s 302/325/34 IPC
State
Vs.
1. Manoj Mahto
S/o Sh. Jai Nath Mahto,
R/o Gaon Koudiya, Thana Bhagwanpur
District Siwan.
Permanent address:
B-2108, 1st Floor, Gali No.11,
Prem Nagar, Delhi
2. Vinod Mahto
S/o Sh. Jai Nath Mahto,
R/o Gaon Koudiya, Thana Bhagwanpur
District Siwan.
Permanent address:
B-2108, 1st Floor, Gali No.11,
Prem Nagar, Delhi
Date of Institution of case : 17.09.2016
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 1 of 83
Date of decision : 09.02.2023
Final order : Both the accused persons
are convicted for the
offence punishable u/s
304 Part II IPC read with
Section 34 IPC and for
the offence punishable
u/s 325 read with Section
34 IPC.
JUDGMENT
1. Brief facts of the case are that on 11.02.2016 on receipt of DD No. 6A, HC Ghamman Ram alongwith Ct. Lal Chand went to Acharya Sri Bhikshu hospital, Moti Nagar where he came to know that injured Sikander, S/o Joginder had visited the hospital and after giving first aid, he was referred to RML Hospital. Thereafter, he alongwith Ct. Lal Chand went to RML Hospital where they found injured Sikander admitted and was unfit for statement. There was no eye witness present in the hospital. Thereafter, they visited the spot i.e. Gali No.12, Prem Nagar, Delhi but no eye witness met them there. Thereafter, they returned to the PS and HC Ghamman Ram informed the Sr. Officers about the incident. They again went to RML hospital vide DD No. 18A at 3.15 pm, where one Ajay Dass, cousin brother of injured Sikander met who informed that injured Sikander had not fallen from stairs but a quarrel had taken place between Sikandar, Manoj and Vinod. HC Ghamman FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 2 of 83 Ram recorded statement of Ajay Dass and endorsed the same and sent Ct. Lal Chand for registration of FIR. HC Ghamman Ram also requested in the rukka to hand over the investigation to some other officer and after the registration of FIR, investigation of this case was marked to SI Parmod.
2. On 12.02.2016 after registration of FIR, SI Pramod received this case file for investigation and on receipt of same, SI Pramod alongwith Ct. Lal Chand went to RML hospital where HC Ghumman Ram, previous IO met him and handed over him MLC of injured Sikander. Witnesses Sh. Kailash and Sh. Ajay Dass also met SI Pramod in the hospital. Injured Sikandar was opined unfit for statement. Sh. Kailash and Sh. Ajay Dass told SI Pramod that Manoj and Vinod had caused head injuries to Sikander by hitting with iron rod. Kailash told SI Pramod that when he tried to rescue Sikandar, Vinod had hit rod in his right hand and he had also sustained injuries in the incident. SI Pramod requested PW Kailash to get the treatment and he alongwith Mr. Ajay Dass went to the spot where Mr. Ajay Dass shown him the spot where incident had taken place and SI Pramod prepared rough site plan. Both the accused persons namely Manoj Mahto and Vinod Mahto met SI Pramod and other police officials in their tenanted room and were identified by Sh. Ajay Dass. SI Pramod interrogated both the accused persons and effected their arrest and also conducted their personal search and also recorded their disclosure statements. SI Pramod has prepared pointing out memo at the instance of accused FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 3 of 83 persons and also seized the clothes of accused persons which they were wearing at the time of incident and kept the same in separate cloth parcels and sealed with the seal of PK. SI Pramod also made inquiries from the neighbours and tried to search the weapon of offence i.e. iron rod but same could not be recovered on that day. SI Pramod got both the accused persons medically examined and then they were sent to lock-up. During investigation, on 13.02.2016, SI Pramod took both the accused persons from lock-up and produced them before the court and obtained their one day PC remand. Thereafter, both the accused persons were got medically examined and returned to PS, where SI Pramod came to know from duty officer about the death of injured Sikandar. SI Pramod added Section 302 IPC in the investigation and thereafter, case file was handed over to Inspector Furqan Khan for investigation. Inspector Furqan Khan took both the accused persons again to the spot and also called the crime team at the spot. Crime team officials got inspected the spot and photographs of the spot were taken by photographer of crime team. Inspector Furqan Khan interrogated both the accused persons who confessed that they had thrown iron rod i.e. weapon of offence at vacant plot which was at the joint place of gali no. 11 & 12, Prem Nagar, Delhi. On the next day, Inspector Furqan Khan alongwith accused persons and police staff reached at vacant plot at Gali no. 11 & 12 where one Bhagirath, owner of house no. B-2108 met them who had also joined the investigation. Both the accused persons took out one iron rod/pipe from the vacant FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 4 of 83 plot near the wall and produced the same to Inspector Furqan Khan and stated that it is the same rod by which they caused injuries to deceased Sikander and injured Kailash. Inspector Furqan Khan seized the said iron rod/pipe and kept the same in a cloth parcel which was sealed with the seal of FK. Thereafter, both the accused persons were produced before the Duty Magistrate. On 15.02.2016, Inspector Furqan Khan alongwith police staff went to RML hospital where Inspector Furqan Khan collected the medical documents of deceased. Thereafter, they took the dead body of deceased Sikandar and brought the same to DDU hospital and got the same preserved in mortuary. Inspector Furqan Khan got filled up inquest papers for postmortem of deceased and recorded the statements of Bechan Dass and Brij Mohan regarding the identification of dead body of deceased Sikander and after postmortem, dead body was handed over to them. After the postmortem, doctor concerned had handed over the parcel having seal of PMDDUH containing blood in gauze along- with sample seal of hospital and Inspector Furqan Khan seized the same through seizure memo.
3. During investigation, Inspector Furqan Khan got prepared the scaled site plan through draftsman and also collected certificate of Duty Officer, DD No.6A, 18A, 14A, death report, PM report, death summary, MLC and other medical documents of Kailash and also collected 12 photos of the spot from Ct. Sachin. Inspector Furqan Khan also received the CD of postmortem and photographs of postmortem.
4. After completion of investigation, chargesheet was filed FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 5 of 83 before concerned Ld. M.M. on 10.05.2016. Vide order dated 08.09.2016, passed by Ld. MM the present case was committed to the court of Sessions in accordance with Section 323 Cr.P.C for 17.09.2016 and on 17.09.2016 the present case was assigned to the Sessions Court for trial.
5. On 18.10.2016, order on charge was passed by Ld. Predecessor and charge for offence punishable under Section 302/325/34 IPC was framed against both the accused persons namely Manoj Mahto and Vinod Mahto. The charge was read over and explained to both the accused persons in vernacular and they were asked as to whether they want to plead guilty or claim trial. After understanding the charge, both the accused persons pleaded not guilty and claimed trial.
6. Thereafter, the prosecution has examined 32 witnesses i.e. PW1 HC Indu Bala, PW2 HC Rajesh, PW3 Ct. Arun, PW4 ASI Naresh Kumar, PW5 Inspector Rupesh Khatri, PW6 Sh. Ajay Dass, PW7 Bhagirath Narayan, PW8 Brij Mohan, PW9 Zila Jeet, PW10 Kailash, PW11 Hari Krishan @ Lalu, PW12 Bachan Dass @ Bechnu Dass, PW13 Dr. Sachin Kumar, PW14 Dr. Pradeep Poswal, PW15 Dr. Mamta Yadav, PW16 Sanjeev Singh, PW17 Ct. Lal Chand Dhaka, PW18 Ct. Madan Lal, PW19 Ct. Prabhu Lal, PW20 Seema Nain, PW21 HC Mehtab, PW22 Dr. V.K Ranga, PW23 Ct. Harendra Singh, PW24 Ct. Sandeep, PW25 Ct. Sachin Kumar, PW26 HC Suraj Bhan, PW27 Inspector Manohar Lal, PW28 HC Ghamman Ram, PW29 ASI Vinod, PW30 Ct. Harender, PW31 SI Pramod and PW32 Inspector Furqan.
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 6 of 83
7. The brief of the testimonies of the prosecution witnesses examined during trial are as under:-
8. PW1 H Ct. Indu Bala deposed that on 13.02.2016, she was posted as Duty Officer at P.S. Patel Nagar, Delhi from 08:00 am to 04:00 pm. On that day, at about 03:30 pm, she recorded DD No.14A Ex.PW1/A on the basis of message received from Duty Ct. Ramesh from RML Hospital on landline phone regarding admission of injured Sikandar in RML Hospital who was referred from Aacharya Bhikshu Hospital and expired during treatment in the hospital. She further deposed that after recording the same, she informed the SHO in this regard and handed over the copy of DD to SI Parmod for making inquiry. PW1 had also brought the original record of DD No.6A Ex.PW1/B which was recored in the PS at about 01:30 am on 11.02.2016 regarding admission of injured Sikandar in Aacharya Bhikshu Hospital. The information of the same was sent to H. Ct. Ghuman Ram for making inquiry.
9. During cross-examination, PW1 stated that she had recorded the DD No.14A at about 03:30 pm in her own handwriting. She also stated that duty constable did not explain her in detail regarding the reason of admission of injured in the hospital.
10.PW2 H. Ct. Rajesh deposed that on 12.02.2012, he was deputed as DO from 04:00 pm to 12:00 mid night. At about 06:30 am, on the basis of rukka received from Ct. Lal Chand, he got recorded FIR Ex.PW2/A of this case through computer operator and made endorsement on rukka Ex.PW2/B. He also issued certificate under Section FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 7 of 83 65B of Indian Evidence Act Ex.PW2/C. He further deposed that after registration of FIR, he handed over the copy of FIR and original rukka to Ct. Lal Chand to hand over the same to SI Parmod for investigation as per the order of the SHO.
11.During cross-examination, PW2 stated that he could not tell the IP number of the computer on which the FIR was recorded.
12.PW3 Ct. Arun deposed that on 13.02.2016, he was posted as Ct./Photographer in Mobile Crime Team, Central District, Delhi. On that day, upon receipt of wireless message from Control Room, he alongwith SI Rupesh Khatri, Incharge of Mobile Crime Team and ASI Naresh, Finger Print Proficient reached at the spot i.e. House No.D-2108, First Floor, Gali No.12, Prem Nagar, Delhi where they came to know that a quarrel had taken place. IO Insp. Furqan Khan alongwith police staff were also present there. He further deposed that as per the instructions of IO, he took 12 photographs Ex.PW3/A1 to Ex.PW3/A12 of the spot and the articles lying there, from different angles. He brought the negatives Ex.PW3/B1 to Ex.PW3/B12 of the said photographs.
13.During cross-examination, PW3 could not tell the number of floors of the house no. D-2108. He stated that he came to know from the IO that quarrel had taken place at the first floor of the building. PW3 admitted that no iron rod was found lying at the spot. PW3 also admitted that there was no grill on the stair-case as shown in the photographs Ex.PW3/A1 and Ex.PW3/A9. He stated that he did not FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 8 of 83 visit the other floors of the building. PW3 denied the suggestion that he did not visit the spot or that he did not take any photograph.
14.PW4 ASI Naresh Kumar deposed that on 13.02.2016, he was posted as ASI/Fingerprint Proficient in Mobile Crime Team, Central District, Delhi. On that day, he alongwith Insp. Rupesh Kumar, Incharge of Mobile Crime Team and Ct./Photographer Arun Kumar visited the spot i.e. B-2108, First Floor, Gali No.11, Prem Nagar, Patel Nagar, Delhi where IO alongwith police staff met them. He further deposed that no chance print could be lifted from the spot as the quarrel in between the parties had taken place about two days prior to their visit.
15.PW4 was not cross examined on behalf of accused persons despite opportunity given.
16.PW5 Inspector Rupesh Khatri deposed that on 13.02.2016, he was posted as Incharge, Mobile Crime Team, Central District, Delhi. On that day, upon receipt of information from District Control Room, he alongwith ASI Naresh Kumar, Finger Print Proficient and Ct. Arun Kumar, Photographer visited the spot i.e. at B-2108, First Floor, Gali No.11, Prem Nagar, Patel Nagar, Delhi where IO Insp. Furkhan Khan alongwith police staff met them. PW5 inspected the spot and prepared the scene of crime report Ex.PW5/A. He further deposed that the incident had taken place in the intervening night of 10/11.02.2016 and hence, no clue was found at the spot.
17.During cross-examination on behalf of accused persons, PW5 stated that he did not visit the second floor of the FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 9 of 83 house No.2108. He did not remember if the said house was situated on the right hand side or the left hand side of the street connected to the main road. PW5 did not remember the number of floors in the said house.
18.PW6 Ajay Dass deposed that he was doing the work of selling the clothes on rehri in his village and that deceased Sikander was his cousin brother (son of bua) who was residing at Gali No.12, Prem Nagar, Delhi. He further deposed that when he had come to Delhi to meet Sikander in the month of February, 2016, he was residing at first floor of rented house. He further deposed that the landlord of the house had pasted some cement on the side of naali near the tap which was near the side of stair-cases at first floor to give the flow of the water in the drainage. In the intervening night of 10/11.02.2016 i.e. at about mid night, Manoj had come at the tap to wash his legs and in the mean time, Sikander reached there and asked Manoj that "aap yaha paani kyon gira rahey ho malik ne cement ka masala naali mai lagvaya tha or paani girney se cement ka masala hatney laga hai or kaha ki aap yaha pair (legs) kyon do rahey ho" on that Manoj replied that "tu kon sa makan malik hai jo tu mujhe pair (legs) dhoney se mana kar raha hai" and accused Manoj started abusing Sikandar and started quarreling with him. PW6 further deposed that he had already reached there on hearing the noise and the above exchange of words had taken place in his presence. He stated that in the mean time, accused Vinod also arrived there. He further deposed that accused Vinod had brought the iron rod from the room. PW6 also deposed that prior to FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 10 of 83 bringing the rod by accused Vinod, accused Manoj had slapped Sikandar two three times on his cheek. Accused Manoj had also beaten Sikander by giving leg and punch blows. PW6 raised alarm and called his villagers there who were in a room on third floor. He stated that accused Vinod hit the iron rod on the back side of the head of Sikander. He further deposed that on hearing the noise, his co- villager Kailash reached there. When accused Vinod tried to hit third blow of rod on the head of Sikander, Kailash intervened and tried to rescue Sikander. In the process, the iron rod hit the hand of Kailash and he sustained injury. PW6 further deposed that when accused Vinod was giving blows to Sikander with the rod, accused Manoj was holding the hands of Sikander. He further deposed that after sustaining injuries on his head, Sikander became unconscious and fell down. Both the accused persons went away to their room. PW6 further deposed that one Jilajit, co-villager of accused Vinod also came out from his room after Sikander had become unconscious. Kailash and Jilajit took Sikander to the hospital on the motorcycle and PW6 also visited the hospital in the next morning. PW6 further deposed that police officials met him there and recorded his statement Ex.PW6/A. He stated that during the treatment, Sikander expired in the hospital. He further deposed that on the next day, he came to know from the landlord that both the accused persons had been arrested from their room by the police. PW6 identified the iron rod (pipe) Ex.PW6/P1 having length of about 2 ft. and paint of brown colour which was used by accused Vinod while FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 11 of 83 causing injuries to Sikander and Kailash.
19.During examination in chief, Ld. Addl. PP for the state sought permission to ask leading question from the witness on the point of arrest of accused persons. Upon leading question, PW6 admitted that accused persons were arrested from their room in his presence and at his instance by the police. PW6 also admitted that arrest and personal search memos Ex.PW6/B. Ex.PW6/C, Ex.PW6/D and Ex.PW6/E of accused persons were prepared in his presence and the same bear his signatures.
20.During cross-examination on behalf of accused persons, PW6 stated that he knew Ramjit @ Ramhit, who is his paternal uncle (chacha) as he belongs to the same village. He also stated that he had come to Delhi for 10 to 15 days to see Delhi and not for looking for any job. He also sated that at the time when deceased Sikander was hit with the rod by the accused Vinod, he and Kailash were present and Jilajit was not present at the spot at that time. He further stated that five six persons from the adjoining rooms had also come to the spot upon hearing the noise after the injuries had already been inflicted to deceased Sikander. He further stated that police met him in the hospital and they took him at the spot. He further stated that he visited the PS on 12.02.2016 and 13.02.2016 and had signed some documents in the PS. He further stated that he had gone to the hospital on the next day of incident in the morning. He did not accompany the deceased to the hospital as deceased was being taken on the motorcycle by Jilajit and Kailash. He further stated that he had not told the said fact FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 12 of 83 to the police. He stated that he had told the police that the accused Vinod had hit the head of deceased Sikander with iron rod from back side. He further stated that accused Vinod was standing at the back side of deceased Sikander at the time of inflicting injury. He also stated that the door of the room of accused Vinod was at the back side of the said accused when he had caused injury to deceased. He also stated that he had tried to intervene when accused Vinod was about to inflict injury, however, he was given a slap by accused Vinod and therefore, he could not save the deceased from injury. He further stated that Kailash had also tried to intervene but they both were not successful in saving the deceased from the injury. He further stated that he had never seen any altercation between the deceased and the accused persons Vinod and Manoj prior to the incident in question. He stated that the accused persons were having only one rod at the time of incident with which the accused Vinod had inflicted injury on the head of deceased. He further stated that accused Vinod had given two blows with the said rod. He also stated that deceased Sikander never used to drink liquor. He stated that he did not see any blood spots/stains on the floor at the spot. He did not remember the description of clothes either of deceased or of the accused persons, at that time. He further stated that he was having the mobile number of deceased Sikander but the same got missed after the incident in question. He volunteered that it was lost in the hospital at the time when the clothes of the deceased were changed. He denied the suggestion that on the date of FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 13 of 83 incident, deceased was under the influence of liquor and that when deceased had gone to the room of Kailash on the second floor, he slipped and sustained injuries. He further denied the suggestion that he was not present at the spot at the time of incident or that he went to the hospital only upon receiving the information regarding the injury sustained by the deceased. He further denied that no cement was pasted near the tap/naali on that day.
21.PW7 Sh. Bhagirath Narayan deposed that he was the owner of House No.2108, Gali no.11, Prem Nagar, Delhi. He did not remember the date, however, he stated that on the next day of incident, he had gone to RML Hospital to meet Sikander but could not meet him as he was unconscious and after 5/7 days, he expired. He further deposed that he did not know anything else about this case.
22.PW7 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW7 stated that he did not remember if his statement was recorded by the IO in this case. PW7 denied the suggestion that on 14.02.2016, he was present in Gali No.11, Prem Nagar, Delhi where IO alongwith police staff and accused Vinod and Manoj Mahto came and accused Vinod led the police party to the vacant plot which was in front of Gali no.11 and from there, he took out one iron rod and produced the same to the IO and stated that it was the same rod by which he caused injuries to Sikander and Kailash on 10/11.02.2016 and thereafter while fleeing from the spot, they threw the rod in the said vacant plot.
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 14 of 83 He voluntarily stated that on that day, he was present there and police officials had told him that accused Vinod and Manoj Mahto took the said rod from the vacant plot and at that time other public persons were also present there. PW7 further denied that on 14.02.2016, accused Vinod had taken out the said rod from the above-said vacant plot in his presence or that IO had seized the same in his presence or that accused Vinod had disclosed that it was the same rod by which he and accused Manoj Mahto caused injuries to Sikander and Kailash and thereafter, they threw the same in the vacant plot while fleeing from the spot. PW7 denied recording of his statement Ex.PW6/A by the IO of this case. PW7 admitted his signatures on seizure memo Ex.PW6/B. He denied that the said iron rod was sealed by the IO in a parcel in his presence. He admitted that accused Vinod and Manoj Mahto as well as deceased Sikander and Kailash were his tenants. PW7 identified the rod Ex.PW6/P1.
23.During cross-examination by Ld. Counsel for both accused persons, PW7 stated that incident of this case did not happen in his presence. PW7 also stated that there were ten rooms at first floor in the building where the incident had taken place and there were around 30 tenants each in the ground floor as well as on the second floor. He also stated that he knew that Ajay Dass is related to deceased Sikander and the said fact came to his knowledge only after the alleged incident. PW7 admitted that Kailash and Sikander were residing in one room.
24.PW8 Brij Mohan deposed that deceased Sikander was his FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 15 of 83 cousin (son of Bua) and he had identified the dead body of Sikander in DDU Hospital Mortuary on 15.02.2016 and after the postmortem, he, Kailash and his father Sh. Bechan Dass received the dead body of Sikander vide receipt Ex.PW8/A. He further deposed that IO had recorded the statement of his father which is Ex.PW8/B.
25.PW8 was not cross examined on behalf of accused persons despite opportunity given.
26.PW9 Zila Jeet deposed that on 10.02.2016, he was working in a factory of fan situated at N-290, Sector-I, Bawana Industrial Area, Delhi. On that day at about 09:30 pm, he had visited the room of his friend Lalu at Prem Nagar, Delhi on the motorcycle of his cousin (son of maternal uncle) where one Vinod, friend of Lalu was also present. He further deposed that at about 12 midnight, a quarrel took place in between accused Vinod and Sikander on the issue of falling water and a scuffle had also taken place in between them and at that time, accused Manoj was not there. He further deposed that Sikander was also residing in the same building in a room near the room of Vinod. Thereafter, Sikander fell down from the stairs while he was going upstairs at second floor to call someone and hence, he sustained injury. He further deposed that he alongwith Kailash took Sikander to hospital on the motorcycle and got him admitted there and thereafter, he left the hospital. He further deposed that on the next day morning, he left from there to his room at Bawana. He also deposed that he did not know anything else about this case and nothing more happened in his presence.
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27.PW9 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW9 admitted that his friend Lalu was residing at first floor in the building where the incident had taken place but he did not remember the house number or even could not say if the house number was B-2108, Gali No.11. He denied the suggestion that he had stated to the IO in his statement that at about 12:00 mid night, accused Manoj had come in the room of his friend Lalu and while he and his friend Lalu were in the room, a quarrel had taken place in between accused Manoj, accused Vinod and Sikander and both the accused persons had beaten Sikander. He further denied that while he and Lalu tried to intervene into the matter and tried to separate them, accused Vinod went inside his room and brought one iron rod in his hand from his room and hit the same on the head of Sikander and while accused Vinod was trying to give second blow of iron rod on the head of Sikander, Kailash, who was also present there, tried to stop the same, due to which Kailash sustained injuries from iron rod and Sikander fell down on the ground and bleeding started from his head. PW9 admitted that he alongwith Kailash had taken Sikander to Aacharya Bhikshu Hospital on motorcycle for treatment. He also admitted that the real name of Lalu is Hari Kishan, who is resident of Mau, U.P. and during his working in the factory, he came in contact of Lalu, accused Manoj and Vinod. PW9 denied the suggestion that he was the eye witness of the incident and FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 17 of 83 in his presence, accused Vinod had hit the iron rod on the head of Sikander and at that time, accused Manoj had caught hold of Sikander.
28.During cross-examination by Ld. Counsel for accused persons, PW9 admitted that Kailash had also stated in the hospital that Sikander had fallen from the stair-cases. He stated that accused Vinod and Manoj were not well known to him, however, he knew them through his friend Lalu. He also stated that at the time of incident, he, Vinod and Lalu were present there apart from Sikander.
29.PW10 Sh. Kailash has deposed that at the time of incident, he was residing on rent in Prem Nagar, Delhi at second floor. In the intervening night of 10/11.02.2016, he was present in his rented room and at about 12:00 mid night, he heard some noise and voice of Ajay (cousin of Sikander), who was also residing on rent on the first floor in the same building that "bhai ko Manoj ne maar raha hai aap log bahar aayea". On hearing the same, he came out at the first floor and saw that accused Vinod and Manoj were giving beatings to Sikander. He stated that accused Vinod went inside his room and brought one iron rod in his hand and hit the same on the head of Sikander twice and at that time, accused Manoj had caught hold the hands of Sikander. He stated that he had also asked both the accused persons as to why they were beating Sikander and on this, both of them started quarreling with him and scuffled with him and accused Manoj had hit the iron rod on the fingers of his right hand. He further stated that accused Vinod had tried to hit the iron rod on his head but he took the blow on his FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 18 of 83 right hand fingers. He further stated that he raised alarm by stating "Sikander mar gaya". Bleeding started from the head of Sikander. He also stated that on hearing his alarm, both the accused persons went to other side in the gallery and other tenants had also gathered there. He further stated that Ajay and Zila Jeet were also present there at the time of incident and he with the help of Zila Jeet took Sikander to Aacharya Bhikshu Hospital and got him admitted there. He further stated that Zila Jeet had wrongly stated to the hospital staff, doctor and the police officials that Sikander had fallen from the stairs and due to which he sustained injuries. He also stated that Zila Jeet had also stated to him to tell the hospital staff and the police that Sikander had fallen from the stair-cases otherwise the police officials would harass and beat them and thereafter, Zila Jeet left from there. He further stated that he alongwith the hospital staff took the injured Sikander to RML Hospital in Ambulance and got him admitted there. He further stated that police officials met him in hospital and made inquiry from him about the incident and recorded his statement. He further stated that on the next day, Sikander had expired in the hospital during treatment due to the injuries caused by the accused persons. He further stated that he had also identified the dead body of Sikander in the hospital and after the postmortem, he alongwith Brij Mohan and his father received the dead body of Sikander vide receipt Ex.PW8/A. PW 10 also identified one iron rod (pipe) having length of about 2 ft. Ex.PW6/P1 by which accused Vinod had caused injuries on the head of Sikander FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 19 of 83 and on the right hand fingers of his hand.
30.During cross-examination on behalf of accused persons, PW10 stated that he was residing at the second floor in the same building where deceased Sikander was residing and he was residing there for the last about two three months at the time of incident. He stated that the other neighbourers were not known to him. He also stated that accused Vinod had hit the iron rod/pipe on the back side of head of Sikander and accused Manoj had held the hands of the deceased Sikander while twisting the same on his back side and accused Vinod was hitting the iron rod on his head. He also stated that accused Manoj was behind the deceased Sikander at the distance of length of hand while holding the hands of Sikander at the time of hitting the iron rod/pipe on his head by accused Vinod. He denied the suggestion that Sikander had fallen from the stair-cases while he was going to call him from the second floor. He denied the suggestion that no call was made to the police from the spot as no such incident had occurred. He also stated that he did not call the police on 100 number as he was not having the mobile phone at that time. He further stated that he did not inform the villagers from the STD booth about the incident. He denied the suggestion that no beatings were given to him by the accused persons. He admitted that there was no previous enmity between him and the accused persons. He further stated that he did not see any quarrel between Sikander and the accused persons prior to the incident.
31.PW11 Hari Kishan has deposed that at the time of incident FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 20 of 83 of this case, he was residing at Prem Nagar, Kirti Nagar, Delhi and was working in a factory of fans at Kirti Nagar, Delhi. On the day of incident, he was present in his room which was adjoining to the room of accused Manoj and Vinod. At about 11:00/11:30 pm, a quarrel had taken place between accused persons Manoj, Vinod and one Sikander, who was also residing in the same building as tenant on second floor. On hearing the noise, he came out and saw that Sikander was going upstairs on third floor to call Kailash. He further deposed that Sikander fell down on the staircases and his head was hit with the angles which was fixed on the sides of stairs. He further deposed that Kailash and Zilajeet, who was also present there, reached there and he requested them to take Sikander to hospital and both of them took Sikandar to hospital on motorcycle and admitted him there. After some time, his brother Zilajeet returned to the tenanted room but Kailash remained in the hospital.
32.PW11 was cross examined by Ld. Addl. PP for the State as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, he admitted that date of incident was 10.02.2016 and that on that day at about 09:30 pm, his friend Zilajeet had come at his rented room on the motorcycle of his cousin (mama ka ladka). He also admitted that on that day accused Vinod had prepared dinner for them and Manoj had come there at about 12:00 mid night. He denied the suggestion that he had stated to the IO that at about 12:00 mid night, while he and Zilajeet were in his room, accused Manoj and Vinod had quarreled FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 21 of 83 with Sikander and gave beatings to him and while he and Zilajeet tried to separate them, accused Vinod had gone to his room and brought one iron rod from his room and hit the same on the head of Sikander and while he tried to hit the same second time on the head of Sikander, Kailash tried to stop Vinod and due to which, Kailash sustained injuries with the rod and Sikander fell down on the ground and blood started oozing out from his head. He also denied the suggestion that he had stated to the IO in his statement that his friend Zilajeet had stated in the hospital that Sikander had fallen from the stairs while in fact accused Vinod had hit the iron rod on his head and accused Manoj had caught hold him at that time. He admitted the fact that Zilajeet was the resident of District Ambedkar Nagar, U.P. and he, accused Vinod and Manoj came into his contact while working in the factory. He denied the suggestion that accused Vinod had hit the iron rod on the head of Sikander and accused Manoj had caught hold him at that time. He further denied the suggestion that he and Zilajeet tried to rescue Sikander from accused Manoj and Vinod and that accused Vinod had also caused injury to Kailash with the iron rod while Kailash was trying to save Sikander.
33.During cross-examination on behalf of accused persons, PW11 admitted that Zilajeet was his friend but he used to consider him as brother. He stated that on that day, quarrel had taken place between Vinod and Sikander and not in between Manoj and Sikander. He also stated that there was no person by the name of Ajay present at the spot at the time of incident. He also stated that he was residing there FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 22 of 83 for the last about one and half months.
34.PW12 Bachan Dass @ Bechu Dass deposed that he was business man by profession and deceased Sikandar was his nephew being the son of elder sister. He further deposed that on 10th/11th month of year 2016, he received a phone call from his nephew Ajay at his house in Bihar that Sikander had been killed by hitting with rod by two persons whose names were disclosed as Vinod and other person was probably Pramod. On receiving the information, he came to Delhi and went to the hospital where he identified the dead body of his nephew Sikander and IO recorded his statement. After the postmortem, the dead body of Sikander was handed over to him on 13th. He identified his signatures on receipt vide which the dead body was handed over to him as well as on his statement recorded by the IO Ex.PW8/B and also on the handing over slip of the dead body Ex.PW8/A.
35.PW12 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW12 admitted that he had received the information on 10/11.02.2016. He denied the suggestion that Ajay had informed him about a quarrel only. He volunteered that when he had started for Delhi, he received the information during the course of journey that his nephew had expired. He also admitted that the name of the other person with whom the quarrel had taken place was told as Manoj and not Pramod.
36.This witness was not cross examined on behalf of accused FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 23 of 83 persons despite opportunity given.
37.PW13 Dr. Sachin Kumar deposed that on 12.02.2016, he was posted as SR, Orthopedics, RML Hospital. On that day, after perusal of the record and x-ray of the patient Kailash Kumar, he opined the nature of injury as grievous on MLC Ex.PW13/A.
38.During cross-examination on behalf of accused persons, he stated that he had not examined the patient and his opinion was based only on the documents produced before him.
39.PW14 Dr. Pradeep Poswal deposed that on 12.02.2016, he was posted as PG Resident at RML Hopspital, Delhi. On that day, he had examined patient Kailash Kumar vide MLC No. E/30612/16 Ex.PW13/A brought for medical examination with the alleged history of assault. He further deposed that patient had sustained two injuries as mentioned in the MLC and after examination, patient was referred to Orthopedics Emergency. He further deposed that the patient had blunt injuries and he also filled up x- ray form Ex.PW14/A of injured Kailash Kumar. He also deposed that as per radiologist, there was fracture of 5th metacarpal bone.
40.During cross-examination on behalf of accused persons, PW14 stated that he had not seen the injury no.1 on MLC Ex.PW13/A at portion D as there was plaster on the same. He also stated that the second injury was 1x1 cm abrasion on right leg 10 cm above ankle joint. He further stated that this sort of injuries could happen if the injured fell down or someone hit the injured with some blunt weapon. He also stated that he had not seen the blood and the area of FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 24 of 83 injuries was not swollen.
41.PW15 Dr. Mamta Yadav deposed that on 11.02.2016, she was posted as CMO at Acharyashree Bhikshu Govt. Hospital, Moti Nagar, Delhi. On that day, at about 01:00 pm, she medically examined the patient Sikander, vide MLC No.12284 Ex.PW15/A. She further deposed that after medical examination, the patient was referred to SR Anesthesia and SR Surgery. She further deposed that the patient had sustained two injuries (on head and right foot) as mentioned in MLC Ex.PW15/A and that the patient was unconscious, pupil dilated non reactive seizure present and gasping and was in serious condition.
42.During cross-examination on behalf of accused persons, PW15 stated that patient was brought to the hospital by his neighbourers Kailash and Zilajeet, whose names are mentioned in MLC Ex.PW15/A. She also stated that she did not remember if Kailash and Zilajeet were in good physical condition or not as she had not examined them. She did not remember if she had actually seen the neighbourers Kailash and Zilajeet or not. She could not say if the injury no.2 as mentioned in the MLC could have been caused due to fall. She also stated that she had specified only the length of the injury which was 4-5 cm and could not tell about the depth of the said injury. She also stated that she could not say from her personal experience as to how the said injury had been sustained by the patient.
43.PW16 Sanjeev Singh deposed that on 11.02.2016, patient Sikander was admitted in the hospital and he expired on FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 25 of 83 13.02.2016 due to severe head injury with brain stem infact. He prepared the death summary Ex.PW16/A and had also prepared death report Ex.PW16/B.
44.This witness was not cross-examined on behalf of accused persons despite opportunity given.
45.PW17 Ct. Lal Chand Dhaka deposed that on the intervening night of 10/11.02.2016, he was on night emergency duty. On that day at about 02:00/03:00 am, he alongwith H. Ct. Ghumman went to Aacharya Bhikshu Hospital and from where they went to RML Hospital. In the hospital, they found one Sikandar admitted in the hospital in injured condition and was unfit for statement and thereafter, they returned to PS Patel Nagar. He further deposed that thereafter, in the evening time, they again went to RML Hospital where one Ajay Dass, who is the cousin of Sikander (son of maternal uncle) met them. H. Ct. Ghumman made inquiry from Ajay Dass and recorded his statement and also endorsed the same and same was handed over to him for getting registered the FIR from PS Patel Nagar. PW17 went to PS, got the case registered and handed over the copy of FIR and original rukka to SI Pramod in the PS for investigation. He further deposed that thereafter, he alongwith SI Pramod went to RML Hospital where SI Pramod made inquiry from Ajay Dass and one more public person and recorded their statements. He stated that thereafter, he alongwith SI Pramod and PW Ajay Dass reached at the spot i.e. at House No.2108, Gali No.12, Prem Nagar, Delhi where one Ct. Madan met them and SI Pramod inspected the spot and made inquiry from FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 26 of 83 the nearby neighbours. He further deposed that IO SI Pramod came to know the names of the accused persons as Manoj and Vinod, who were present in a room at first floor of House No.2108 and were also identified by PW Ajay Dass.
46.PW17 further deposed that both the accused persons were apprehended and interrogated by SI Pramod and custody of both the accused persons were handed over to him and Ct. Madan. Both the accused persons had also disclosed that the clothes which they were wearing at the time of incident were lying in their room and in pursuance of their disclosure statement, both of them got recovered their clothes from the said room. IO seized the clothes of the accused Manoj and Vinod vide seizure memos Ex.PW17/A and Ex.PW17/B respectively. He further deposed that IO kept the clothes in separate cloth parcels and sealed the same with the seal of PK and IO had arrested both the accused persons at the spot vide their arrest memos Ex.PW6/C and Ex.PW6/B respectively and conducted their personal search vide personal search memos Ex.PW6/E and Ex.PW6/D respectively. Disclosure statements of both the accused persons were also recorded by the IO vide statement Ex.PW17/C and Ex.PW17/D respectively. He further deposed that both the accused persons had also pointed out the place of occurrence vide pointing out memo Ex.PW17/E and thereafter, they alongwith accused persons returned to the PS. Both the accused persons were got medically examined from Lady Harding Hospital. PW17 identified the clothes of accused FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 27 of 83 Manoj Ex.PW17/A1 (Colly) and clothes of accused Vinod Ex.PW17/A2 (Colly).
47.During cross-examination on behalf of accused persons, PW17 stated that he did not remember as to what were the surroundings of the building from where the accused persons were allegedly apprehended. He stated that there were about more than 10 to 12 rooms at the first floor of the said building and those rooms were occupied by the tenants. PW17 did not remember if the IO had recorded the statement of any of the tenants in his presence. PW17 admitted that there was no grill on the stairs leading to first floor. He did not remember if there was grill on the stairs leading to second floor or on roof. He stated that the size of room from where accused persons were apprehended was around 8x10 ft and there was only one door in the said room but he did not remember if there was any window or not. He also stated that his statement was recorded by the IO at the spot on the date of arrest of accused persons. He could not say if the clothes similar to Ex.PW17/A1 (Colly) and Ex.PW17/A2 (Colly) were easily available in the market. He denied the suggestion that he never met with PW Ajay at any point of time and that the clothes Ex.PW17/A1 (Colly) & Ex.PW17/A2 (Colly) were planted one.
48.PW18 Ct. Madan Lal deposed that on 12.02.2016 he was present at Prem Nagar on emergency duty where IO SI Pramod Kumar alongwith Ct. Lal Chand and complainant Ajay Dass met him and at the instance of complainant, they reached at house No. 2108, Gali No.11, Prem Nagar FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 28 of 83 where accused Manoj and Vinod were residing on rent. He further deposed that they reached at the first floor of said building i.e. the rented room of accused persons and found two boys present there, who were identified by complainant as accused Manoj and Vinod and at his instance, both accused were apprehended. IO interrogated both the accused persons namely Manoj and Vinod and arrested them vide arrest memos Ex.PW6/C & Ex.PW6/B, conducted their personal search vide memo Ex.PW6/E & Ex.PW6/D respectively and also recorded their disclosure statements vide memos Ex.PW17/C and Ex.PW17/D. He further deposed that on interrogation, both the accused persons had disclosed that they were wearing the same clothes which they had been wearing on the date of incident. IO got changed their clothes and seized the clothes which they were wearing on the date of incident vide memos Ex.PW17/A & Ex.PW17/B respectively and kept in separate cloth parcels and sealed with the seal of PK. He further deposed that in pursuance of disclosure statement, they tried to search the weapon of offence i.e. iron rod but the same could not be recovered. He stated that both the accused persons also pointed out the place of occurrence vide memo Ex.PW17/E and thereafter, both the accused persons were got medically examined. PW18 identified the clothes of accused Manoj Ex.PW17/A1 (Colly) and clothes of accused Vinod Ex.PW17/A2 (Colly).
49.During cross-examination on behalf of accused persons, PW18 admitted that the rented building of accused persons FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 29 of 83 was situated in residential area and the said building was surrounding with residential houses/buildings. He could not tell the area of first floor of building from where the accused persons were apprehended. He stated that there were about 4/5 rooms on the first floor of building where some other tenants were residing. He also stated that the size of room of accused persons was 10x10 ft where some clothes, utensils and gas cylinder and stove were lying. He did not remember if there was grill on the stairs or not. He denied the suggestion that he did not join investigation at any point of time or that the clothes of accused persons had been planted upon them or that no such recovery was effected in his presence.
50.PW19 Ct. Prabhu Lal deposed that on 14.02.2016 as per the instructions of IO, he alongwith SI Pramod and Ct. Sandeep took the accused persons namely Vinod Mahto and Manoj Mahto to Lady Hardinge hospital for their medical examinations and thereafter, they alongwith both the accused persons went to Tis Hazari Courts where IO met them and produced the accused persons before Ld. Duty MM who remanded the accused persons to JC. He further deposed that since all the jail vans had already left from court, they took both the accused persons to Tihar Jail and lodged them there.
51.During cross-examination, he denied the suggestion that he did not join the investigation at any point of time or that he was deposing falsely at the instance of IO.
52.PW20 Ms. Seema Nain deposed that on 21.04.2016 four sealed parcel having the specimen seal were received in FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 30 of 83 the office of FSL from SHO PS Patel Nagar, through Ct. Harender and the same were marked to her for examination. She opened the parcels and gave them number as S1, S2, 3 & 4 which were found containing exhibits S-1A, S-1B, S-1C, S-2A, S-2B, S-2C, 3 & 4 as mentioned in detailed FSL report no. FSL-2016/B-2904 BIO No. 848/16 dated 16.12.2016. She further deposed that blood was detected on exhibits 3 (iron rod) and 4 (blood in gauze of deceased). The exhibits were subjected to DNA isolation and DNA was isolated from the source of exhibits 3 & 4. She further deposed that identifiler plus amplification (STR) kit was used for each of the exhibit and data was analyzed by Gene-Mapper IDx software. She further deposed that DNA profile was generated from source of exhibit 4 (blood in gauze of deceased), however, DNA profile could not be generated from the source of exhibit 3 (iron rod). She further deposed that remnants of exhibits were resealed with the seal of FSL S.Nn DELHI and she identified her signatures on detailed report Ex.PW20/A.
53.This witness was not cross examined despite opportunity given.
54.PW21 HC Mahtab deposed that On 12.02.2016, both the accused persons namely Manoj Mahto and Vinod Mahto were taken out from the lock up. IO interrogated them and thereafter, at their instance, he alongwith IO and Ct. Harender reached at Gali No. 11, Prem Nagar, Delhi and from a vacant plot of gali no. 12, accused Vinod took out one iron rod lying there and produced the same to the IO.
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 31 of 83 He further deposed that the accused persons disclosed that it was the same rod by which the murder was committed and IO seized the same vide seizure memo Ex PW6/B and IO kept the same in a cloth parcel and sealed the same. He further deposed that thereafter, medical examination of both the accused persons was conducted from Govt. Hospital i.e Lady Harding hospital and they were produced before the court. He identified the iron rod Ex PW 6/P1 which was got recovered from the vacant place by the accused Vinod.
55.PW21 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, he admitted that when they reached at gali no 11 near house no 2108, one Mr Bhagirath landlord of the said house met and also joined investigation of this case and in his presence, accused Vinod got recovered the iron rod/pipe from the vacant plot of gali no. 11 and stated to the IO that it was the same rod by which he caused injuries to Kailash and Sikandar on the intervening night of 10/11.2.2016. He also admitted that Mr. Bhagirath had also signed the seizure memo of the said rod apart from him and Ct Harender. He further admitted that IO had recorded statement of Bhagirath in his presence. He further admitted that Iron rod was sealed in a parcel with the seal of FK and after use, seal was handed over to him. He stated that the accused persons were produced before the Ld MM and both were remanded to JC. He further admitted that due to late time they took the accused persons to Tihar Jail as per FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 32 of 83 the order of Ld MM and produced them there.
56.During cross-examination on behalf of accused persons, PW21 admitted that there were houses adjacent to the vacant plot and there was house built in front of the vacant plot. He also admitted that if something would be thrown from the house built in front of the vacant plot that would have reached there. He also admitted that access of the plot was open to all and anyone could come there. He did not know if the TIP of the said rod was got conducted by the IO from the eye-witnesses. He also did not remember if the site plan of place of recovery was prepared by the IO. He denied the suggestion that nothing was recovered in his presence from the said plot or that the same was planted upon the accused persons or that he signed the seizure memo of the rod at the instance of IO in the PS being the police official.
57.PW22 Dr. V.K Ranga, Specialist Department of Forensic deposed that on 15.02.2016 he had conducted the post- mortem of dead body of Sikandar, 24 years Male, sent by Inspector Furqan Khan of PS Patel Nagar, who expired in the RML hospital on 13.2.2016 at about 11:41 pm during the course of treatment vide PM no. 235/2016. He exhibited his detailed post-mortem report as Ex PW22/A. He further deposed that the deceased had sustained 8 external injuries as mentioned in his PM report on page no 2 and the cause of death was due to septicaemia subsequent upon infection to multiple vital organs. He further deposed that injury no. 1 and 2 were sufficient to cause death in ordinary course of nature individually or FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 33 of 83 collectively. He stated that all injuries were antemortem in nature, about three days old in duration could be caused by blunt force impact to the head. He further deposed that the blood in gauze piece was preserved, sealed with seal of PM DDUH and handed over to the IO along with sample seal and Inquest papers (total no 11) was also handed over to the IO.
58.During cross-examination on behalf of accused persons, PW22 stated that the injuries as mentioned in Ex.PW22/A were not possible due to fall at a hard surface i.e. floor. However, it could be sustained if the fall is from a height i.e. first floor or second floor. He voluntarily stated that in the case in hand, the injury was not caused due to fall from height. He further stated that there are chances of infection after 72 hours of injuries. He also stated that he could neither admit nor deny if the infection was caused in this case due to improper medical treatment and use of rusted instruments. He also stated that he did not have personal knowledge about the case.
59.PW23 Ct. Harendra Singh deposed that on 21.04.2016 as per instructions of the IO he received parcel of this case from the MHC(M) vide RC No. 262116 and deposited the same in the office of FSL Rohini, Delhi. After depositing the same, he handed over the receipt of the same to the MHC(M).
60.This witness was not cross examined on behalf of accused persons despite opportunity given.
61.PW24 Ct. Sandeep deposed that on 12.02.2016, he was on emergency duty and as per the instructions of the IO, he FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 34 of 83 alongwith SI Pramod and Ct. Prabhu Lal took out the accused persons namely Vinod Mahto and Manoj Mahto from the lock-up and took them to Lady Hardinge Hospital for their medical examinations. Thereafter, they brought both the accused persons to Tis Hazari Courts and produced them before the Ld. M.M. and accused persons were remanded to JC but due to late time, they could not be taken by jail van and hence, they took them to Tihar Jail and lodged them there.
62.This witness was not cross examined on behalf of accused persons despite opportunity given.
63.PW25 Cr. Sachin Kumar deposed that on 08.04.2016, as per instruction of the IO, he went to DDU hospital and collected the post-mortem report, PM CD and PM Photographs and handed over the same to the IO who seized the same vide memo Ex PW25/A. He further deposed that again on 22.4.2016, as per instruction of the IO, he went to crime team office, Central District Paharganj Delhi and collected 12 photographs and handed over the same to the IO at PS Patel Nagar, who seized the same vide Memo Ex PW25/B. He further deposed that again on 26.04.2016, as per instructions of the IO, he went to RML hospital and collected MLC. Thereafter, he went to Ashok Vihar DCP Office and collected scaled site plan from draftman and thereafter, handed over the same to the IO in PS Patel Nagar and IO recorded his statement in this regard.
64.During cross-examination on behalf of accused persons, he denied the suggestion that he did not not visit the aforesaid FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 35 of 83 places or that he never joined the investigation of this case at any point of time or that I was deposing falsely at the instances of IO or that he signed the said memos in the PS at the instance of IO.
65.PW26 HC Suraj Bhan deposed that on 15.02.2016 he along with IO went to RML Hospital and took the dead body of deceased Sikandar in Ambulance to DDU hospital and got preserved the same in mortuary of the DDU hospital for postmortem. IO filled the inquest papers for getting the postmortem conducted upon the dead body of deceased. He further deposed that the dead body of Sikander was identified by Bichan Dass, Maternal uncle of deceased and Brij Mohan cousin of deceased and after postmortem, the dead body was handed over to Bichan Dass. He further deposed that the doctor concerned who conducted the post mortem, handed over the parcel of the blood samples and samples seal of the DDU hospital to the IO who seized the same vide memo Ex PW26/A. IO had recorded the statement of Bichan Dass, Brij Mohan and Kailash in the hospital.
66.During cross-examination on behalf of accused persons, PW26 denied the suggestion that he did not visit the aforesaid places or that he never joined the investigation of this case at any point of time or that he signed the memo in the PS at the instances of IO.
67.PW27 Inspector Manohar Lal deposed that on 13.04.2016, he was posted as Insp. Draftsman at North West District, Ashok Vihar, Delhi. On that day, at the request of IO Insp. Furqan Khan of PS Patel Nagar, he visited the place of FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 36 of 83 incident i.e. House No.B-2108, First Floor, Gali No.12, Prem Nagar and took rough notes and measurement. He further deposed that on 26.04.2016, he prepared scaled site plan Ex. PW27/A and handed over the same to the IO.
68.During cross-examination, he denied the suggestion that he had never gone to the place of occurrence and the map scaled by him was not according to the actual construction of the building.
69.PW28 HC Ghamman Ram deposed that on the intervening night of 10/11.02.2016, he was posted as H. Ct. at PS Patel Nagar, Delhi and upon receipt of DD No.6A Ex.PW1/B, he alongwith Ct. Lal Chand went to Aacharya Bhikshu Hospital where he came to know that injured Sikander, S/o Joginder had visited the hospital and after giving first aid, he was referred to RML Hospital. He collected the MLC of patient and thereafter, went to RML Hospital where he found injured Sikander admitted who was unfit for statement. He further deposed that no eye witness met him in the hospital and thereafter, they visited the spot i.e. House No.B-2108, First Floor, Gali No.12, Prem Nagar, Delhi but no eye witness met them there and then they returned to the PS and he informed the Sr. Officers about the incident. He further deposed that on 12.02.2016, he again went to RML Hospital but no eye witness met him in the hospital and patient was still unfit for statement. He stated that thereafter, he again visited the spot and then went to RML Hospital where Ajay Dass, S/o Bachnu Dass, who was the cousin of injured Sikander met and he recorded statement of Ajay Dass Ex.PW6/A and endorsed FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 37 of 83 the same vide endorsement Ex.PW28/A and sent the same to PS through Ct. Lal Chand for the registration of FIR. He also requested in the rukka to hand over the investigation to some other officer and after the registration of FIR, investigation of this case was marked to SI Parmod.
70.During cross-examination, PW28 admitted that it is mentioned in DD No.6A Ex.PW1/B that the injured had sustained injury by falling from second floor. He also admitted that it is mentioned in the MLC Ex.PW15/A that the injured had sustained injury by falling from second floor of flat. He also stated that any of the IO did not make inquiry from him about the facts of the case. He voluntarily stated that he handed over the MLC of the injured to IO in RML Hospital and apprised him about the facts of the case.
71.PW29 ASI Vinod deposed that on 13.02.2016, he was posted as MHC(M) at PS Patel Nagar, Delhi and on that day, he had received two sealed parcels having the seal of PK from the IO and deposited the same in the Malkhana and made the entry at Sl. no.2613 in Register No.19. He further deposed that on 14.02.2016, he received one more sealed parcel having the seal of FK from IO Insp. Furkhan Khan and deposited the same in Malkhana and made entry of the same at Sl. no.2618 in Register No.19. He further deposed that on 15.02.2016, he received one sealed parcel having the seal of PMDDUH alongwith the sample seal from the IO and deposited the same in Malkhana and made the entry of the same at Sl. no.2615 in Register No.19. He also deposed that on 21.04.2016, he sent all the said four FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 38 of 83 sealed parcels alongwith the sample seal to the office of FSL Rohini through Ct. Harender vide RC No.2611/16 and after depositing the same, Ct. Harender handed over him the receipt/RC of the same. He further deposed that on 30.12.2016, he received FSL result alongwith the above said parcels through H. Ct. Pawan and he deposited the parcels in the Malkhana and handed over the result to the IO to file the same in the concerned court. He also exhibited the extracts of the relevant entries of Register No.19 as Ex.PW29/A (Colly) and copy of RC and receipt as Ex.PW29/B and Ex.PW29/C.
72.During cross-examination, PW29 stated that his statement was not recorded by the IO on 13.02.2016, 14.02.2016, 15.02.2016 and 30.12.2016 and it was recorded on 21.04.2016 at PS Patel Nagar. He denied the suggestion that the entries are ante-dated or ante-timed or that he had made the same at the instance of the IO. He also denied the suggestion that he had tampered the parcels during the period they remained in his custody.
73.PW30 Ct. Harender deposed that on 14.02.2016 he along-
with Ct. Mehtab had joined investigation of this case and accused persons namely Manoj Mahto and Vinod Mahto were taken out from the lock-up and he, Ct. Mehtab, IO and both the accused persons reached at H.No. 2108, Gali no. 11, Prem Nagar, Delhi where one Bhagirath, owner of the said house met them. He further deposed that both the accused persons pointed out towards a vacant plot near the said house and took out one iron rod having holes, lying near the wall in the plot and produced the same to IO and FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 39 of 83 stated that it was the same rod which was used by them while causing injury to Sikander and Kailash. IO seized the said iron rod vide seizure memo Ex.PW6/B and kept the same in a cloth parcel and sealed with the seal of FK. He further deposed that IO recorded the statement of said Bhagirath and thereafter, both the accused persons were got medically examined from Lady Harding hospital and thereafter, both the accused persons were brought to Tis Hazari Courts and produced before duty magistrate from where they remanded to JC. He further deposed that since jail vans had already left from Tis Hazari Courts, they took accused persons to Central Jail, Tihar and got them lodged there. Witness also identified the iron rod Ex.PW6/P1.
74.During cross-examination, PW30 admitted that the place of recovery i.e. vacant plot was located in a thickly residential area and there were plots of 20 to 25 sq. yards. He also admitted that there were constructed houses across the road in front of vacant plot. He could not say if somebody could see in the vacant plot from the house built up in front of vacant plot. He also admitted that anybody could throw anything in the said vacant plot. He further admitted that the vacant plot was accessible to any public person. He did not know if the TIP of iron rod/pipe was got conducted by IO or not. He also admitted that the iron rod/pipe was hollow and same was of like iron pipe of ceiling fan. He denied the suggestion that he did not join the investigation of this case or that nothing was recovered in his presence.
75.PW31 SI Pramod deposed that on 12.02.2016 after FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 40 of 83 registration of FIR, he received this case file for investigation and on receipt of same, he alongwith Ct. Lal Chand went to RML hospital where HC Ghumman Ram, previous IO met him and handed over him MLC of injured Sikander. He further deposed that one Kailash and Mr. Dass also met him in the hospital and the injured Sikandar was unfit for statement. He further deposed that Kailash told him that he had also sustained injuries in the incident caused by accused persons namely Vinod Mahto and Manoj Mahto. He requested PW Kailash to get the treatment and he alongwith Mr. Dass went to the spot where Mr. Dass shown him the spot where incident had taken place and PW31 prepared site plan Ex.PW31/A. He further deposed that both the accused persons met them in their tenanted room, who were identified by PW Dass. PW31 interrogated both the accused persons and arrested them vide arrest memo Ex.PW6/C & Ex.PW6/B, conducted their personal search vide memo Ex.PW6/E & Ex.PW6/D and also recorded their disclosure statements Ex.PW17/C & Ex.PW17/D respectively. He further deposed that at the instance of both the accused persons, he prepared pointing out memo Ex.PW17/E. PW31 seized the clothes of accused persons which they were wearing at the time of incident vide memo Ex.PW17/A and Ex.PW17/B respectively and kept the same in separate cloth parcels and sealed with the seal of PK. He further deposed that he made inquiries from the neighbours and also tried to search the weapon of offence i.e. iron rod but same could not be recovered on that day. He further deposed that thereafter, FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 41 of 83 both the accused persons were got medically examined and then sent to lock-up.
76.He further deposed that on 13.02.2016, he took both the accused persons from lock-up and produced them before the court and took their one day PC remand. Thereafter, both the accused persons were got medically examined and returned to PS, where, he came to know from DO about the death of injured Sikandar. He further deposed that after discussion with senior officers, he added Section 302 IPC in the investigation and thereafter, case file was handed over to Inspector Furqan Khan for investigation. He further deposed that he alongwith IO and both the accused persons again went to the spot. IO called the crime team at the spot and got it inspected from the members of crime team and photographs of the spot were taken by photographer of crime team. He further deposed that both the accused persons were again interrogated by IO and both the accused persons had confessed that they had thrown iron rod i.e. weapon of offence at vacant plot which was at the joint place of gali no. 11 & 12, Prem Nagar, Delhi. He further deposed that as it was already late night time, they returned to PS and on the next morning, he alongwith accused persons and police staff reached at vacant plot at Gali no. 11 & 12 where one Bhagirath, owner of house no. B-2108 met them who was joined in the investigation. He further deposed that both the accused persons took out one iron rod/pipe from the vacant plot near the wall and produced the same to IO and stated that it was the same rod by which they caused injuries to deceased Sikander FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 42 of 83 and injured Kailash. IO seized the said iron rod/pipe and kept the same in a cloth parcel which was sealed with the seal of FK. He stated that thereafter, both the accused persons were produced before the Duty Magistrate. He further deposed that since they were informed by lock-up Incharge that the jail vans had already left, they took the accused persons to Central Jail, Tihar and got them lodged there.
77.He further deposed that on 15.02.2016, he alongwith IO and police staff went to RML hospital where IO collected the medical documents of deceased and thereafter, they took the dead body of deceased Sikandar and brought the same to DDU hospital and got the same preserved in mortuary. PW31 filled up inquest papers for postmortem of deceased at the instance of IO and IO recorded the statements of Bechan Dass and Brij Mohan regarding the identification of dead body of deceased Sikander and after postmortem, dead body was handed over to them. He further deposed that after the postmortem, doctor concerned had handed over the parcel having seal of PMDDUH containing blood in gauze along-with sample seal of hospital and IO seized the same vide seizure memo Ex.PW26/A. PW31 identified the accused persons as well as the case property i.e. iron rod Ex.PW6/P1. He also identified the clothes of accused Manoj Ex.PW17/A1 (colly) and clothes of accused Vinod Ex.PW17/A2 (colly).
78.During cross-examination on behalf of accused persons, PW31 admitted that it is mentioned in DD No. 6A Ex.PW1/B that injured Sikander (deceased) had sustained FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 43 of 83 injuries by falling from second floor. He also admitted that in MLC Ex.PW15/A, it is mentioned 'as told by Kailash and Jilajeet falling from second floor of flat, Gali No. 12, Patel Nagar, Prem Nagar'. He denied the suggestion that it was the accident case and that was why, they did not register the FIR on 11.02.2016. He stated that he had recorded the statement of Kailash in hospital. He also stated that he did not try to seize or to know the whereabouts of motorcycle on which the deceased was taken to hospital by Kailash and Jilajeet. He voluntarily stated that investigation of this case remained with him only for one day. He further stated that he did not try to seize the clothes of Kailash and Jilajeet worn by them on the date of incident, who had taken the injured to hospital. He admitted that Kailash was available in the hospital on that day and he did not lift the blood from the spot. He admitted that there was no railing on the stairs of the building where the incident had taken place. He also stated that they reached at the spot at about 9.30 pm on motorcycle and remained there upto 11.00/11.30 pm. He further stated that there were about 6/7 rooms on the first floor of that building. He made inquiry from the tenants who were available on first floor but did not record their statements. He also stated that he tried to join them in investigation but none agreed. He did not serve any notice upon them on their refusal to join investigation. He admitted that none of the accused had disclosed in their disclosure statements that they could get recovered their clothes which they were wearing at the time of incident.
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 44 of 83 He also admitted that there is no date on the disclosure statements of the accused persons. He also admitted that both the accused persons were arrested at the instance of public witness Ajay. PW31 did not remember the type and colour of clothes which accused persons had worn after removing their clothes which they were wearing at the time of incident. He stated that no public witness was joined in the investigation at the time of recovery of clothes of accused persons. He also admitted that they had also visited the vacant plot to search the weapon of offence prior to the day of recovery. He also admitted that the vacant plot was located in a thickly populated residential area and same was surrounded with residential houses. He further admitted that there were electric poles in the street wherein the vacant plot was situated. He also admitted that the said plot was easily accessible to any public person and anybody could throw any articles therein.
79.He stated that he made inquiries from the neighbours but did not record their statements as they refused to join the investigation. He did not serve any notice upon them on their refusal to join investigation. He also stated that Ct. Mehtab and Ct. Harinder were with him at the time of making search of weapon of offence. He also stated that IO did not prepare the site plan of place of recovery or the sketch of weapon of offence i.e. iron rod in his presence. He did not know if IO tried to get conducted the TIP of iron rod. He admitted that the iron rod/pipe was hollow and same was of like iron pipe of ceiling fan.
80.PW32 Inspector Furqan deposed that on 13.02.2016, he FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 45 of 83 received investigation of this case after the information of death of injured, which was recorded vide DD No. 14A Ex.PW1/A. He received case file from SI Pramod, perused the same and added Section 302 IPC in investigation. He further deposed that both the accused persons were taken out from lockup and thereafter, he alongwith SI Pramod, Ct. Harinder, Ct. Mehtab and both the accused persons reached at the spot. He further deposed that pursuant to his information, crime team visited and inspect the spot and SI Upesh, Incharge of crime team handed over his report Ex.PW5/A to him. Photographs of scene of crime were also taken by photographer and thereafter, they tried to recover the weapon of offence i.e. iron pipe but same could not be recovered despite best efforts as it was night time. He further deposed that on the next day, they alongwith both the accused persons and police staff i.e. SI Pramod, Ct. Mehtab and Ct. Harinder went for recovery of weapon of offence and at the instance of accused persons, they reached at place of occurrence where landlord namely Bhagirath met them who also joined the investigation and thereafter, at the instance of accused persons, they reached at the vacant plot which was opposite the place of occurrence, from where, accused persons took out one iron pipe lying under the garbage/malwa and produced the same. He stated that accused persons stated that it was the same weapon/iron pipe by which they caused injury of deceased Sikander. PW32 seized the said iron pipe vide memo Ex.PW6/B and kept the same in cloth parcel and sealed with the seal of FK and thereafter, they returned to FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 46 of 83 PS and deposited the case property in Malkhana and accused persons were sent to lockup. He further deposed that on the next day, both the accused persons were taken out from lockup and after their medical examination, they were produced before the court and thereafter, remanded to JC.
81.He further deposed that on 15.02.2016, he alongwith SI Pramod and HC Suraj Bhan went to RML hospital from where they took the dead body of deceased to DDU hospital and got preserved the same in mortuary for postmortem vide application Ex.PW32/A. He also filled/prepared inquest papers Ex.PW32/B, brief facts Ex.PW32/C, form no. 25.35 Ex.PW32/D and recorded statement of Bichan Dass Ex.PW8/B regarding identification of dead body and after the postmortem, dead body of deceased was handed over to Bichan Dass vide receipt Ex.PW8/A. He further deposed that after postmortem, doctor concerned had handed over him one sealed envelop and one sample seal having seal of hospital which was sealed vide memo Ex.PW26/A. Thereafter, they returned to PS and deposited the said parcel and sample seal in malkhana. He further deposed that during investigation, he called the draftsman and got inspected the spot and thereafter, scaled site plan Ex.PW27/A was handed over to him. He further deposed that during investigation, he collected certificate of DO Ex.PW2/C, DD No. 6A Ex.PW1/B, death report Ex.PW16/B, PM report Ex.PW22/A on his application Ex.PW32/E, DD No. 6A, DD No. 18A, DD No. 14A Ex.PW32/F-1, Ex.PW32/F-
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 47 of 83 2 & Ex.PW32/F-3, MLC Ex.PW15/A, death summary Ex.PW16/A, MLC Ex.PW13/A and other medical documents of Kailash Ex.PW32/G and Ex.PW4/A. He stated that he also collected 12 photos of spot from Ct. Sachin and seized the same vide memo Ex.PW25/B. He also received CD of postmortem and photographs of postmortem and seized the same vide memo Ex.PW25/A. He also identified the accused persons as well as case property i.e. iron pipe Ex.PW6/P1.
82.During cross-examination on behalf of accused persons, PW32 admitted that it is mentioned in DD No. 6A Ex.PW1/A that injured had fallen himself from second floor and sustained injury. He also admitted that the said DD was lodged by Kailash. He further admitted that as per MLC Ex.PW15/A the history of patient is mentioned as fall from second floor, at portion X1. He denied the suggestion that the present case was accidental case and later on, he converted the same into murder. He admitted that he did not seize the motorcycle on which the deceased was taken to hospital nor inquired regarding its owner and other details. He voluntarily stated that the owner of the motorcycle was Jilajeet. He stated that he called Jilajeet and Kailash at PS and recorded their statements. He also stated that he did not seize their clothes during investigation nor they handed over the same. He further stated that he did not seize any construction material from the spot as same was not available there and was washed out. He further stated that he visited the spot 2-3 times and there were three floors in the building. He also stated that FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 48 of 83 no neighbours agreed to join the investigation and he did not serve any notice upon them to join the investigation. He admitted that the disclosure statements of accused persons did not bear date under the name and signature of SI Pramod. He also admitted that the rented room of accused persons was of size about 8x8 and there was no separate kitchen in that room. He also admitted that the household articles of accused persons were lying in their room and same were visible. He also admitted that the weapon of offence was recovered from the vacant plot in second time of their visit there. He also admitted that the vacant plot was surrounded by thickly populated residential houses and there was street light near the spot but same was not in front of vacant plot. He also stated that the area of vacant plot was about 100/150 sq. yards. He also admitted that the vacant plot was accessible to all. He also admitted that he did not mention in the record that the iron pipe was recovered under the garbage and construction material. He further stated that no chance print/finger prints were taken from iron pipe. He voluntarily stated that it was having blood stains. He admitted that the said iron pipe was of ceiling fan.
83.He denied the suggestion that under the pressure of family members of deceased, Section 302 IPC was added in investigation or that nothing was recovered at the instance of accused persons. He also denied the suggestion that accused persons did not give any disclosure statements or that all the documents were prepared in the PS or that recovery of weapon was planted upon accused persons.
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84.On 30.05.2019 prosecution evidence was closed. On 25.07.2019, statements of both the accused persons namely Manoj Mahto and Vinod Mahto were recorded u/s 313 Cr.P.C. In their statement u/s 313 Cr.P.C, accused persons stated that they are innocent and have been falsely implicated in this case and deceased died due to fall from stair-cases of second floor. Both the accused opted not to lead any evidence in their defence.
FINDINGS & OBSERVATIONS:
85.I have heard the arguments advanced by Ld. Addl. PP for the State and Ld. Defence Counsel. My findings are as under:
Ocular Evidence:
86.Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness.
Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspects connected with the offence, there is no reason to reject their testimonies.
87.The case of the prosecution is mainly based upon the testimonies of following material public witnesses i.e. PW6 Ajay Dass, PW7 Bhagirath, PW9 Zila Jeet, PW10 Kailash and PW11 Hari Kishan.
88.Since the prosecution is placing its heavy reliance on the testimonies of PW6 Ajay Dass, PW7 Bhagirath, PW9 Zila Jeet, PW10 Kailash and PW11 Hari Kishan, it is therefore FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 50 of 83 necessary for this Court to first determine whether their testimonies are reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness- box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 51 of 83 scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
89.Applying the settled principles of law to the facts of the present case, coming first to the testimony of PW6 Sh. Ajay Dass, according to him, deceased Sikander was his cousin brother (son of bua) who was residing at Gali No.12, Prem Nagar, Delhi. He further deposed that on the intervening night of 10/11.02.2016 i.e. at about mid night, Manoj had come at the tap to wash his legs and in the mean time, Sikander reached there and asked Manoj that "aap yaha paani kyon gira rahey ho malik ne cement ka masala naali mai lagvaya tha or paani girney se cement ka masala hatney laga hai or kaha ki aap yaha pair (legs) kyon do rahey ho" on that Manoj replied that "tu kon sa makan malik hai jo tu mujhe pair (legs) dhoney se mana kar raha hai" and accused Manoj started abusing Sikandar and started quarreling with him. He further deposed that accused Vinod had brought the iron rod from the room. PW6 also deposed that prior to bringing the rod by accused Vinod, accused Manoj had slapped him two three times on his cheek and accused Manoj had also beaten Sikander by giving leg and punch blows. PW6 stated that he raised alarm and called his villagers there who were in a room on third floor and that accused Vinod hit the iron rod on the back side of the head of Sikander. He further deposed that on hearing the noise, his co-villager Kailash reached there. When accused Vinod tried to hit third blow of rod on the head of Sikander, Kailash intervened and tried to rescue Sikander and in the process, the iron rod hit the hand of FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 52 of 83 Kailash and he sustained injury. He further deposed that when accused Vinod was giving blows to Sikander with the rod, accused Manoj was holding the hands of Sikander. He further deposed that after sustaining injuries in his head, Sikander became unconscious and fell down and both the accused persons went away to their room. PW6 further deposed that one Jilajit, co-villager of accused Vinod also came out from his room after Sikander had become unconscious. Kailash and Jilajit took Sikander to the hospital on the motorcycle and he also visited the hospital in the next morning. He further deposed that police officials met him there and recorded his statement Ex.PW6/A. He further deposed that during the treatment, Sikander expired in the hospital. He identified the iron rod (pipe) as Ex.PW6/P1 having length of about 2 ft. and paint of brown colour which was used by accused Vinod while causing injuries to Sikander and Kailash. Upon a leading question, this witness had also admitted that both the accused persons were arrested in his presence.
90.The witness PW6 Ajay Dass has been cross-examined at length but despite detailed cross-examination, this witness stood firm by his version and nothing material in favour of accused persons comes out despite detailed cross- examination of PW6.
91.It is evident from the above that the witness PW6 Ajay Dass has duly identified both the accused persons namely Manoj Mahto and Vinod Mahto in the Court and has attributed specific role to both the accused persons during the commission of offence.
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92.I may also note that the witness PW6 Ajay Dass is the eye witness and has stood by his version. His testimony has its own efficacy and relevancy and his testimony clearly reveals that he was present at the place of occurrence and had seen the occurrence by himself [Ref.: Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Evidence of eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eye-witness are natural witnesses and they could not have concocted a baseless case against accused.
93.A plain reading of the testimony of injured PW6 Ajay Dass confirms the presence of both the accused persons Manoj Mahto and Vinod Mahto at the spot and also confirms the role attributed to them by PW6. I find no reason to disbelieve the testimony of PW6 Ajay Dass and I hold the said witness credible, reliable and trustworthy.
94.Now coming to the testimony of PW10 Kailash who has deposed that on the intervening night of 10/11.02.2016, he was present in his rented room and at about 12:00 mid night, he heard some noise and voice of Ajay (cousin of Sikander), who was also residing on rent on the first floor in the same building that "bhai ko Manoj ne maar raha hai aap log bahar aayea". On hearing the same, he came out at the first floor and saw that accused Vinod and Manoj were giving beatings to Sikander. He stated that accused Vinod went inside his room and brought one iron rod in his hand FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 54 of 83 and hit the same on the head of Sikander twice and at that time, accused Manoj had caught hold the hands of Sikander. He stated that he had also asked both the accused persons as to why they were beating Sikander and on this, both of them started quarreling with him and scuffled with him and accused Manoj had hit the iron rod on the fingers of his right hand. He further stated that accused Vinod had tried to hit the iron rod on his head but he took the blow on his right hand fingers. He further stated that he raised alarm by stating "Sikander mar gaya" as bleeding started from the head of Sikander. He also stated that on hearing his alarm, both the accused persons went other side in the gallery and other tenants had also gathered there. He further stated that Ajay and Zila Jeet were also present there at the time of incident. He with the help of Zila Jeet took Sikander to Aacharya Bhikshu Hospital and got him admitted there. He further stated that Zila Jeet had wrongly stated to the hospital staff, doctor and the police officials that Sikander had fallen from the stairs and due to which he sustained injuries. He also stated that Zila Jeet had also stated to him to tell the hospital staff and the police that Sikander had fallen from the stair-cases otherwise the police officials would harass and beat them and thereafter, Zila Jeet left from there. He further stated that he alongwith the hospital staff took the injured Sikander to RML Hospital in Ambulance and got him admitted there. He further stated that police officials met him in hospital and made inquiry from him about the incident and recorded his statement. He further stated that on the next FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 55 of 83 day, Sikander had expired in the hospital during treatment due to the injuries caused by the accused persons. He further stated that he had also identified the dead body of Sikander in the hospital and after the postmortem, he alongwith Brij Mohan and his father received the dead body of Sikander vide receipt Ex.PW8/A. PW 10 also identified one iron rod (pipe) having length of about 2 ft. Ex.PW6/P1 by which accused Vinod had caused injuries on the head of Sikander and on the right hand fingers of his hand.
95.The witness PW10 Kailash has been cross-examined at length but despite detailed cross-examination, this witness stood firm by his version and nothing material in favour of accused persons comes out despite detailed cross- examination of PW10.
96.It is evident from the above that the witness PW10 Kailash has duly identified both the accused persons namely Manoj Mahto and Vinod Mahto in the Court and has attributed specific role to both the accused persons during the commission of offence.
97.I may also note that the witness PW10 Kailash is the injured eye witness and has stood by his version. His testimony has its own efficacy and relevancy and the fact that he had sustained injuries on his right arm would show that he was present at the place of occurrence and had seen the occurrence by himself [Ref.: Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Further, in the case of State of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 56 of 83 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness have greater evidentiary value, unless compelling reasons exist.
98.A plain reading of the testimony of injured PW10 Kailash confirms the presence of both the accused persons Manoj Mahto and Vinod Mahto at the spot and also confirms the role attributed to them by PW10. I find no reason to disbelieve the testimony of PW10 Kailash and I hold the said witness credible, reliable and trustworthy.
99.Now coming to the testimony of PW7 Sh. Bhagirath Narayan, it has been observed that this witness has not supported the case of prosecution. Ld. Counsel for accused persons has strongly argued that PW7 being material witness of prosecution has not supported the case of prosecution in any manner and thus the benefit of doubt must be given to the accused persons. On the other hand, Ld. Addl. PP has strongly argued that though PW7 Sh. Bhagirath Narayan has not supported the case of prosecution but this witness has admitted during his cross- examination that accused Vinod and Manoj Mahto were his tenants at the time of incident at the first floor of his House No. B-2108 and has also admitted that he has submitted the copy of police verification to the IO of this case.
100. Though the testimony of PW7 Bhagirath Narayan is not helpful to the case of prosecution but in this regard, it is pertinent to mention that the law is well settled to the effect that testimony of each witness has its own reliability and efficacy and the fact that one witness has not FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 57 of 83 supported the case of prosecution would not affect the case of prosecution if the other witnesses of occurrence supports the case of prosecution. (Reliance placed upon the judgment of Hon'ble Supreme Court of India in case Rajesh Yadav & Anr Vs. State of UP, Crl. Appeal No. 339- 340 of 2014 decided on 04.02.2022).
101. Now coming to the testimony of PW9 Sh. Zilajeet, it has been observed that this witness has deposed that on the day of occurrence i.e. on 10.02.2016 at about 9.30 pm he had visited the room of his friend Lalu at Prem Nagar, Delhi to meet him on the motorcycle of his cousin where one Vinod i.e. friend of Lalu was also present and his friend was preparing dinner and thereafter, they had taken the dinner. He further deposed that a quarrel took place between accused Vinod and Sikander on the issue of falling water and a scuffle had also taken place between them. He further deposed that the incident had taken place at about 12.00 midnight. This witness has further deposed that Sikander fell down from the stair-cases and sustained injury and thereafter, he and Kailash took Sikander to the hospital on the motorcycle and got him admitted there. This witness has not supported the case of prosecution and was cross examined on behalf of state. During his cross- examination by Ld Addl. PP for the State this witness failed to support his statement Ex.PW9/A which he allegedly made before the police.
102. Ld. Counsel for accused persons has strongly argued that PW9 Zila Jeet being material witness of prosecution has not supported the case of prosecution in any manner FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 58 of 83 and thus the benefit of doubt must be given to the accused persons.
103. Though the testimony of PW9 Zila Jeet is not helpful to the case of prosecution but in this regard, it is pertinent to mention that the law is well settled to the effect that testimony of each witness has its own reliability and efficacy and the fact that this witness has not supported the case of prosecution would not affect the case of prosecution in any manner if the other witnesses of occurrence supports the case of prosecution. (Reliance placed upon the judgment of Hon'ble Supreme Court of India in case Rajesh Yadav & Anr Vs. State of UP, Crl. Appeal No. 339-340 of 2014 decided on 04.02.2022).
104. Now coming to the testimony of PW11 Hari Kishan, who deposed that on the day of incident, he was present in his room which was adjoining to the room of accused Manoj and Vinod. At about 11:00/11:30 pm, a quarrel had taken place in between accused persons Manoj, Vinod and one Sikander, who was also residing in the same building as tenant on second floor. On hearing the noise, he came out and saw that Sikander was going upstairs on third floor to call Kailash. He further deposed that Sikander fell down on the staircases and his head was hit with the angles which were fixed on the sides of stairs. He further deposed that Kailash and Zilajeet, who were also present there, reached there and he requested them to take Sikander to hospital and both of them took Sikandar to hospital on motorcycle and admitted him there. He stated that after some time, his brother Zilajeet returned to the tenanted FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 59 of 83 room but Kailash remained in the hospital.
105. Though the testimony of PW11 Hari Kishan @ Lalu is not helpful to the case of prosecution but in this regard, it is pertinent to mention that the law is well settled to the effect that testimony of each witness has its own reliability and efficacy and the fact that this witness has not supported the case of prosecution would not affect the case of prosecution in any manner if the other witnesses of occurrence supports the case of prosecution. (Reliance placed upon the judgment of Hon'ble Supreme Court of India in case Rajesh Yadav & Anr Vs. State of UP, Crl. Appeal No. 339-340 of 2014 decided on 04.02.2022).
Medical Evidence:
106. During the course of trial, the prosecution has examined following medical witnesses i.e. PW13 Dr. Sachin Kumar, PW14 Dr. Pradeep Poswal, PW15 Dr. Mamta Yadav, PW16 Dr. Sanjeev Singh and PW22 Dr. V.K Ranga.
107. Now, let us discuss the testimony of the medical witnesses i.e. the aforesaid doctors and to see if their deposition and observations made in the medical documents are in corroboration to the ocular testimony of PW6 Ajay Dass and PW10 Kailash (injured himself).
108. PW13 Dr. Sachin Kumar, SR, Orthopedics has deposed that on 12.02.2016 he was posted as SR, Orthopedics, RML hospital and on that day, he perused the x-ray of patient Kailash Kumar and opined the nature of injury as grievous on MLC Ex.PW13/A at portion A to A FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 60 of 83 and the same bears his signature at point A.
109. PW14 Dr. Pradeep Poswal has deposed that on 12.02.2016, he was posted as PG Resident at RML Hopspital, Delhi. On that day, he had examined patient Kailash Kumar vide MLC No. E/30612/16 Ex.PW13/A brought for medical examination with the alleged history of assault. He further deposed that patient had sustained two injuries as mentioned in the MLC and after examination, patient was referred to Orthopedics Emergency. He further deposed that the patient had blunt injuries and also filled up x-ray form Ex.PW14/A of injured Kailash Kumar. He also deposed that as per radiologist, there was fracture of 5th metacarpal bone. During cross-examination on behalf of accused persons, this witness has deposed that this sort of injuries could happen if the injured fell down or someone hit the injured with some blunt weapon.
110. Now coming to the testimony of PW15 Dr. Mamta Yadav, who has deposed that on 11.02.2016, she was posted as CMO at Acharyashree Bhikshu Govt. Hospital, Moti Nagar, Delhi. On that day, at about 01:00 pm, she medically examined the patient Sikander, vide MLC No.12284 Ex.PW15/A. She further deposed that after medical examination, the patient was referred to SR Anesthesia and SR Surgery. She further deposed that the patient had sustained two injuries (on head and right foot) as mentioned in MLC Ex.PW15/A and that the patient was unconscious, pupil dilated non reactive, seizure present and gasping and was in serious condition. During cross-
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 61 of 83 examination on behalf of accused persons, she deposed that patient was brought to the hospital by his neighbourers Kailash and Zilajeet, whose names are mentioned in MLC Ex.PW15/A. She also stated that she had specified only the length of the injury which was 4-5 cm and could not tell about the depth of the said injury. She also stated that she could not say from her personal experience as to how the said injury had been sustained by the patient.
111. PW16 Dr. Sanjeev Singh prepared the death summary Ex.PW16/A of patient Sikandar and also prepared death report Ex.PW16/B. This witness was not cross examined by Ld defence counsel.
112. Now coming to the testimony of PW22 Dr. V.K Ranga, he has deposed that on 15.02.2016 he had conducted the post-mortem of dead body of Sikandar, 24 years Male. He exhibited the post-mortem examination report as Ex PW22/A. As per his deposition, deceased (Sikander) had sustained 8 external injuries and the cause of death was due to septicaemia subsequent upon infection to multiple vital organs. As per his deposition, injury no. 1 and 2 were sufficient to cause death in ordinary course of nature. As per his deposition, all injuries were antemortem in nature, about three days old in duration could be caused by blunt force impact to the head.
113. The medical evidence on record in the form of MLC Ex.PW13/A of the injured/ victim Kailash Kumar corroborates the ocular evidence and confirms the version given by patient Kailash Kumar (PW10) who has deposed that accused Vinod hit the iron rod on the fingers of his FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 62 of 83 right hand and thereafter tried to hit the iron rod on his head but he took the blow on the right hand fingers. As per PW14 Dr. Pradeep Poswal, patient Kailash Kumar had suffered fracture of 5th metacarpal bone and as per PW13 Dr. Sachin Kumar, he opined the nature of injury suffered by Kailash Kumar as grievous on MLC Ex.PW13/A. The aforesaid medical evidence on record corroborates the ocular evidence in the form of testimony of PW10 Kailash Kumar on record.
114. Further, the medical evidence on record in the form of death summary Ex.PW16/A and death report Ex.PW16/B and postmortem report Ex.PW22/A of deceased Sikandar prepared by Dr. V.K Ranga confirms the version given by public witness i.e. Kailash Kumar (PW10) as well as the version given by PW6 Ajay Dass i.e. another public witness examined by the prosecution during trial. The aforesaid medical evidences on record corroborates the ocular evidence in the form of testimony of PW10 and PW6 on record.
Apprehension / Arrest of the accused-proved:
115. The case of the prosecution is that both the accused persons namely Manoj Mahto and Vinod Mahto met PW31 SI Pramod and other police officials in their tenanted room, who were identified by PW6 Ajay Dass. PW31 SI Pramod interrogated both the accused persons and arrested them vide arrest memo Ex.PW6/C & Ex.PW6/B, conducted their personal search vide memo Ex.PW6/E & Ex.PW6/D and also recorded their disclosure statements Ex.PW17/C & Ex.PW17/D respectively. During FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 63 of 83 investigation, at the instance of both the accused persons, PW31 SI Pramod prepared pointing out memos Ex.PW17/E and also seized the clothes of accused persons which they were wearing at the time of incident vide memos Ex.PW17/A and Ex.PW17/B respectively.
116. Ld. Counsel for accused persons argued that the arrest of accused persons in the manner as deposed by the witnesses is doubtful as no independent public witness has been joined at the time of effecting the arrest of accused persons.
117. In so far as public witnesses are concerned, it is common experience that public persons are generally reluctant to join police proceedings and there is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133. It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment.
118. Similar view was taken in Manish vs. State, 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai Vs. State reported in AIR 1989 SC 696, wherein it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 64 of 83 umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit.
119. Moreover, there is no reason to disbelieve the testimonies of police officials PW31 SI Pramod, PW17 Ct. Lal Chand Dhaka and PW18 Ct. Madan Lal regarding the manner of arrest of accused persons which is corroborated by the testimony of PW6 Ajay Dass. Their testimonies cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vss. State, reported in (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. In view of the aforesaid facts and circumstances, I am of the view that the prosecution has been able to establish the factum of arrest of accused persons at the instance of PW6 Ajay Dass in his presence by PW31 SI Pramod.
Charge under Section 302/34 Indian Penal Code:
120. In the present case, both the accused persons have been charged for the offence punishable u/s 302/34 IPC as well as for offence u/s 325/34 IPC. The relevant law in this regard is as under:-
Murder and Culpable Homicide not amounting to Murder-Distinction Abstract:
The term culpable homicide and murder are the two most confusing terms in the Indian Penal Code, 1860. There is a faint line difference between both of them. Where Section 299 of IPC defines Culpable homicide and section 300 deals with concept of Murder.
These terms always snarls up the one who starts learning FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 65 of 83 these concepts. According to Sir James Stephen, the definition of culpable homicide and murder are the weakest part of the code, as they are defined in forms closely resembling each other and at times it becomes difficult to distinguish between the two, as the causing of death' is common in both. However, The basic difference between these two offences lies in the gravity with which the offence has been perpetrated.
In common parlance Sec. 300 is a sub-set of the sec. 299 (Culpable homicide is a genus and murder its specie), Every unnatural human death is homicide but when it is coupled with intention and not only knowledge (culpable homicide not amounting to murder) then it is a murder.
The distinction of Murder and Culpable homicide not amounting to Murder is very vital. Referring to Section 299 and 300 of IPC, Whitely Stocks, Previously Law member of the council of the Governor General of India, in his introduction to the Indian Penal Code in the Anglo Indian Codes Volume 1, published in 1887, Page 41 comments as follows:
The definitions just referred to are the weakest part of the code, and the law on the subject should be recast so as to express clearly what is or sought to be the intention of the legislature.
But, unfortunately, such a legislative exercise did not take place. It has been left to the courts to bring out and expound the difference between culpable homicide and murder, as defined in the above said sections. In the scheme of the IPC culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide which are as under:-
1. Culpable homicide of First degree: Gravest form of Culpable homicide, Defined u/s 300 as Murder.
2. Culpable homicide of second degree: Punishable u/s 304 Part 1
3. Culpable homicide of Third degree: lowest type of Culpable homicide which is punishable u/s 304 Part 2.
The academic distinction between 'murder' and 'culpable FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 66 of 83 homicide not amounting to murder' has vexed the courts for more than a century. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of section 299 and 300.
In order to deal with such a topic, it is proper to deal with the following three heads namely:
1. Exceptions as enumerated in Section 300 IPC.
2. Distinction between murder' and 'Culpable homicide not amounting to murder.
3. Distinction between section 304 part 1 and part 2.
Exceptions as enumerated in Section 300 IPC:
There are certain exceptional situations under which, if murder is committed, it is reduced to culpable homicide not amounting to murder punishable under section 304 IPC and not under section 302 IPC.
Indian Penal Code recognizes such five exceptions which are as follow:
1. Grave and Sudden Provocation
2. Private Defence
3. Exercise of Legal Power
4. Without Premeditation to a sudden fight and
5. Consensual Homicide/Suicide Pacts.
Exception 1 - Grave and Sudden Provocation When the person losing his self-control by the sudden and grave provocation, causes the death of the person who gave the provocation or any other person due to a mistake or an accident then he will be liable for the culpable homicide not amounting to murder.
According to Goddard C.J in the case of R v. Duffy:
Provocation is some act, or series of acts done by the dead man to the accused which would cause in any reasonable person..... a sudden and temporary loss of self-control, making him for the moment now master of his mind....
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 67 of 83 However, it has to be noted that this provocation should not be first initiated at the instance of the accused.
Essentials of this exception are as under:-
1. The accused should not have any ill will and premeditation
2. The accused had been provoked by the deceased.
3. Such provocation must be grave and sudden.
4. Due to it, the accused loses his power of self-control.
5. That the offence of murder was committed by the accused before he could cool down.
It is essential to prove that provocation was sudden as well as grave. The Statutory explanation of the provision under IPC provides that:
Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
However courts generally apply the principle of reasonableness in order to determine if such provocation was grave and sudden enough to result in the ground of exception.
Hence Hon'ble Supreme Court gives Reasonable man's test in the landmark case of K.M. Nanavati v. State of Maharashtra 1962 SCR Supl. (1) 567:
1.The test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self control.
2. Gestures and words under certain situations cause sudden and grave provocation to an accused so as to bring his action under this exception.
3.The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 68 of 83
4. The fatal blow on the person giving a sudden and grave provocation should be immediately when he was provoked but not after the time which was sufficient for him to calm down or to cool down.
Sustained Provocation (A court formulated exception under Exception 1) From the analysis so far, the concerns with the traditional definition of provocation are discernible. Acknowledging the problems with the grave and sudden criteria, Madras High Court in the case of Suyambukani In re 1989 LW (cr) 86 have introduced the defence of sustained provocation within the wider ambit of provocation.
Though the exceptions to Section 300 of the IPC seem restrictive in nature, courts have been broadening the exceptions ejusdem generis to the existing exceptions and have brought in sustained provocation under Exception 1 to Section 300 of the IPC.
After noting that either pre-meditation or ill will is absent in all exceptions, and that an act or omission would not be an exception if both are present, the courts came to the conclusion that sustained provocation can be brought within Exception 1 to Section 300 of the IPC. Thus, it was held that a series of acts over a period of time could also cause grave and sudden provocation.
Further, the ground of provocation is itself subject to the limitations set by further statutory explanation to the section, according to which:
1. The provocation must not cause intentionally from the act of the offender as an excuse to kill such person or any other person.
2. The provocation is not caused by anything which is done in accordance with the law, or by a public servant in the lawful exercise of the powers of any public servant.
Example: A is lawfully arrested by C, a constable. A was provoked because he was arrested so he kills C. Here A will be liable for murder as C was exercising his public FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 69 of 83 duty.
3. The offender must not have been provoked by the act of the person who is exercising his right to private self- defense.
Exception 2 - Private defence This exception came into play in those cases wherein a person exceeds the right of private defense. If the excess is intentional, the offence is Murder, if unintentional, it's culpable homicide not amounting to murder.
Essentials for this exception is as follow:
1. The act must be done in exercise of right of private defence of person or property
2. The act must be done in good faith
3. The person doing the act must have exceeded his right given to him by law and have thereby caused death
4. The act must have been done without premeditation and without any intention of causing more harm than was necessary in private defence.
Hence, accused get partial defence from criminal liability, when exercising his right to self-defence in good faith, unfortunately crosses the legal limits imposed by law of self-defence. Thus, his offence of murder becomes culpable homicide under this ground of exception.
In case of Lachhmi Koeri v. State of Bihar, in which a hwaldar in civil uniform went to arrest appellant. The Hawaldar confronted appellant in which appellant's shirt was torn. Then appellant took out his chhura and gave a blow on Hawaldar's arm. Later appellant gave several blows to Hawaldar and fled. The Hawaldar died shortly afterwards. Hon'ble Supreme Court held, that the appellant initially had the right of private defence, but subsequently intended to cause more harm than was necessary for his defence. Therefore appellant's case did not comes under this exception and was guilty under section 302 IPC for murder.
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 70 of 83 Exception 3- Exercise of Legal Power This exception has been provided to protect a public servant or a person aiding a public servant, if either of them exceeds the power given for the advancement of public justice. This exception clause will not apply, if the act is illegal or against public policy and not authorized by law, or the person glaringly exceeds the power given to him by law.
The question whether the public servant did or did not believe in the legality of his power is a question of fact to be decided upon the facts and circumstances of each cases.
In Dakhi Singh v. State, where a suspected thief who was arrested by a police officer, while trying to escape by jumping down from the train from its off-side was shot dead by the police officer [finding himself not in a position to apprehend him], the court held that the accused as guilty of culpable Homicide not amounting to murder, as it was a case where the officer though exceeded his legal powers did not have any ill will and committed the offence for the advancement of public justice.
Exception 4 - Without Premeditation to a Sudden Fight Sudden fight means when the fight was unexpected or premeditated. There was no intention of either of the parties to kill or cause the death of any person. It is not an important fact that which party has first assaulted or who have offered a provocation.
The Hon'ble Supreme court in Surendar Kumar v. Union Territory, Chandigarh (1989) 2 SCC 217 summarized the principles as follows:
1. it was a sudden fight
2. there was no premeditation
3. the act was done in a heat of passion and
4. the assailant had not taken any undue advantage or acted in a cruel manner.
In Amirthalinga Nadar v. State of Tamil Nadu (1976) 2 SCC 195, Justice P.N. Bagwati, held that in a case of FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 71 of 83 Sudden fight, where the fatal blow was given as part of the sudden fight that arouse out of sudden quarrel between the appellants part and deceased's party, there is no scope for premeditation. The appellant neither took undue advantage nor acted in cruel and unusual manner.
Conviction altered from section 302 to 304 Part 1.
Exception 4 v. Exception 1 of section 300 IPC The Hon'ble Supreme court in the case of Smt. Sandhya Jadhav v. State of Maharashtra, clarified this by holding:
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 reasons 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.
Exception 5 - Consensual Homicide The last exception of section 300, IPC deals with causing death by consent which is commonly known as 'Euthanasia' (mercy killing). According to this Exception, culpable homicide is not murder when the person whose death is caused being above the age of 18 years, suffers death or takes the risk of death with his own consent.
B. Culpable homicide not Amounting to Murder v. Murder:
Culpable homicide is a genus and murder its specie. All murders are culpable homicide, but all culpable homicides are not murder. According to section 299 of IPC culpable homicide means the unlawful killing of a FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 72 of 83 human being, and this killing becomes murder when the act firstly fulfills all the conditions of section 299 and then section 300.
As per section 299 of IPC which defines culpable homicide says, Whoever causes death by doing an act with
1. Intention of causing death.
2. Intentionally causing bodily injury which is likely to cause death.
3. Doing an act with knowledge that it is likely to cause death.
Section 300 which defines Murder says, Whoever causes death by doing the act with:
1. Intention of causing death.
2. Causing such bodily injury as the offender knows it is likely to cause death of a person.
3. Intentionally causing bodily injury which is sufficient to cause death.
4. Doing an act with knowledge that it is so imminently dangerous and in all probability causes death.
If we carefully examine the bare act language of both the section 299 and 300 of IPC, there is thin line difference between both the sections. Section 299 includes term 'an act' which shows uncertainty, that means 'doing an act by which probability of death is not certain. On the other hand section 300 includes the act, which shows certainty, that means where the probability of death is certain by that act.
For example: taking illustration (a) of section 299 - A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
Now suppose A put some poisonous snakes in the same pit, then here this act of A comes under the scope of section 300 as Murder.
The true difference between culpable homicide and murder is only the difference in degrees of intention and FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 73 of 83 knowledge. A greater the degree of intention and knowledge, the case would fall under murder and a lesser degree would result culpable homicide. It is therefore difficult to arrive at any strait jacket differences between culpable homicide and murder.
Hon'ble Supreme Court from time to time through different cases give their views on this topic. As in the case of Thangaiah v. State of Tamil Nadu, Hon'ble Supreme court held that following factors should be taken into consideration for determining death is culpable homicide or murder weapon used, place of injury, ferocity of attack, state of mind of the accused.
Perhaps the distinction between culpable homicide and murder could be well appreciated by the illustration given by Justice Melville in the landmark case of Reg v. Govinda, and repeatedly quoted with approval by the Supreme court (State of Andhra Pradesh v Rayavarappu Punnayya AIR 1977 SC 45) may be outlined thus.
Section 299 Section 300
A person commits Subject to certain
culpable homicide, if the exceptions, culpable
act by which the death is homicide is murder, if the
caused is done: act by which the death is
caused is done:
INTENTION 1. With the intention of
a. With the intention causing death;
of causing death; 2. With the intention of
b. With the intention causing such bodily injury,
of causing such as the offender knows to be
bodily injury as is likely to cause the death of
likely to cause death; the person to whom the
harm is caused;
3. 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
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 74 of 83 death;
KNOWLEDGE (4) With the knowledge that
the act is so imminently
(c) With the knowledge dangerous that it must in all
that the act is likely to probability cause death, or
cause death such bodily injury as is
likely to cause death and
committed without any
excuse for incurring the risk
or causing death or such
injury as aforesaid.
On comparison between section 299 and 300 IPC, the points of distinction are as follows:
Intention to Kill Clause (a) of s 299 and cl (1) of s 300 are identical, that shows where there is an intention to kill, the offence is always murder. Example - A shoots Z with the intention of killing him. Z dies in the consequence. A commits murder (illustration (a) section 300).
Note - If an intentional act which fulfills the condition of section 299, but it goes to the second part of section 300 (exceptions), then the act does not amount to murder.
Intention to Cause Bodily Injury Likely to Cause Death Clause (b) to Section 299 corresponds with clauses (2) and (3) of Section 300. Both require intention to cause bodily injury. As far as s 299 (b) is concerned, it merely stipulates that if death is caused by an act, with the intention of causing such bodily injury as is likely to cause death it amounts to culpable homicide.
Whereas clause (2) of section 200 clarifies, The offence is murder, if the offender knows that the particular person injured is likely, either from peculiarity of constitution or suffering from any disease or immature age could be killed by an injury which would not ordinarily cause death.
The word likely' used in sec. 299 (b) means a mere FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 75 of 83 probability or possibility (a fifty-fifty chance) that the injury could result in death. But on other hand word 'likely' used in clause (2) of sec. 300 denotes, to an extent, certainty of death.
Illustration (b) to s 300 explains this aspect, where A knowingly with intention of causing death strikes Z, who is labouring under such a disease that a blow is likely to cause his death, and Z dies in consequence of the blow.
A is guilty of murder, although the blow might not have been sufficient in the ordinary course of natures to cause death of a person in a sound state of health. The distinction in the meaning attributed to the word likely in sections 299 (b) and 300 (2) is only in the 'degree of probability'.
Bodily injury + Intention + knowledge = Murder As far as cl (3) of sec. 300 is concerned, the intention of causing bodily injury is accompanied by a further objective of certainty that such bodily injury is sufficient in the ordinary course of nature to cause death.
The sufficiency is the highest probability of death in the ordinary course of nature and when this exists and death ensues and the causing of such injury is intended, the offence is murder. The degree of the probability of death is higher in this particular clause than sec. 299 (b).
For example, a blow inflicted by stick on head may be likely to cause death amounting to culpable homicide, on the other hand, a wound from a sword in heart will be sufficient in ordinary course of nature to cause death amounting to murder.
Bodily injury that is sufficient in the ordinary course of nature to cause death + Intention = Murder Knowledge of Death Both cl (c) of s 299 and cl (4) of s 300 apply to cases where the accused has no intention to cause death or FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 76 of 83 bodily injury, but there is knowledge that the act is essentially a risky one. In such a case whether the act amounts to murder or culpable homicide depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide [illustration (b) of sec. 299] if it is the most probable result, it is murder [illustration (d) to sec. 300].
For example:
Death caused due to furious driving will be culpable homicide whereas death caused due to firing at a mark near a public road will be murder under section 300 IPC.
Hon'ble Supreme Court in Willie Staney v. State of Madhya Pradesh held that:
Sec. 300 (4) contemplates the doing of an imminently dangerous act in general and not the doing of any bodily harm to any particular individual. It is designed to provide for rarest of rare cases wherein the accused puts in jeopardy lives of many persons as shown in illustration (d) of section 300 IPC.
C. Distinction between section 304 part 1 and part 2.
For the purpose of awarding sentence sec. 304, IPC divides culpable homicide not amounting to murder in two parts on the basis of intensity and gravity.
Part 1 - (a) which is considered to be more serious and grave in nature, liability has to be proved on the basis of intention of the person while committing the offence. a. It covers those cases which fall within one of the exceptions 1 to 5 of section 300 IPC and cases which fall within second clause of sec. 299, IPC. b. Punishment - Imprisonment for life, or imprisonment for either description for a term which may extend to ten years and fine.
Part 2 - (a) which is considered to be less serious in nature, the liability does not depend upon the intention rather knowledge is the basis for punishment.
(b) It applies when the act is done with the knowledge that is likely to cause death but no intention to cause death FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 77 of 83 (third clause of sec. 299, IPC). However, if an offence is committed with the knowledge 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 such act is done without any excuse, then the offence will be taken out of the purview of sec. 304, Pt. II, and would be covered under sec. 302, as the offence would amount to murder under sec. 300, cl (4). Thus, the knowledge referred to in Pt II of s 304 is of a lesser degree than the special knowledge referred to in cl (4) of sec. 300.
(c) Punishment - Imprisonment extending up to 10 years or fine.
The law is well settled to the effect that whenever a court is confronted with the question of whether a killing is murder or culpable homicide, it will be convenient to approach the problem in 3 stages:
1. In the first stage, proof of causal connection between the act and death is determined.
2. In second stage, it is determined whether the act of the accused amounts to culpable homicide'. If the answer is yes', then the third stage is reached.
3. In third stage, it is determined whether the act is murder' e.g. case within the ambit of four clauses of Sec. 300. If the answer is negative, then the offence would be culpable homicide not amounting to murder' punishable under the first or second part of Sec.
304, depending on whether the second or third clause of Sec. 299 is applicable.
If the answer is positive but the case comes within any of the exceptions enumerated in Sec. 300, the offence would still be culpable homicide not amounting to murder' under the first part of Sec. 304 (State of A.P. v R. Punnayya, AIR 1977 SC 45).
121. Being guided by the aforesaid law, as per the facts of the present case as deposed by PW6 Ajay Dass and PW10 Kailash that on the intervening night of 10/11.02.2016 at about midnight, accused Manoj had come at the tap to FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 78 of 83 wash his legs and in the meantime, Sikander (deceased) reached there and asked accused Manoj that "aap yahan paani kyu gira rahe ho, maalik ne cement ka masala naali me lagaya tha or paani girne se cement ka masala hatne laga hai or kaha ki aap yahan par pair/legs kyu dho rahe ho" on that Manoj replied to Sikander (deceased) "tu kon sa makaan maalik hai jo tu mujhe pair dhone se mana kar raha hai" and accused Manoj started abusing Sikander (deceased) and started qurreling with him. In the meantime, accused Vinod also arrived there. Accused Manoj went inside his room and brought iron rod. Prior to bringing the iron rod by accused Vinod, accused Manoj had slapped PW6 Ajay Dass 2-3 times on his cheek and also gave beatings to Sikander by leg and punch blows. Accused Vinod hit the iron rod on the back side of head of Sikander. When accused Vinod tried to hit the third blow of rod on the head of Sikander, Kailash (PW10) intervened and tried to rescue Sikander and in the process, the iron rod hit the hand of Kailash (PW10) and PW10 received injuries on the fingers of his right hand. When accused Vinod was giving blows to Sikander with the rod, accused Manoj was holding the hands of Sikander. After sustaining injuries in his hand, Sikander became unconscious and fell down. The occurrence took place on the intervening night of 10/11.02.2016 and Sikander expired in RML hospital on 13.02.2016 at about 11.41 PM. As per the postmortem report Ex.PW22/A, the cause of death was due to septicaemia subsequent upon infection to multiple vital organs. PW22 has also deposed that injury no. 1 & 2 as FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 79 of 83 detailed in postmortem report were sufficient to cause death in ordinary course of nature. As per postmortem report, injury no.1 is infected 'C' shaped stitched lacerated wound present over left parieto-temporal region of head and injury no.2 is contusion present over left parieto- temporal region of head. It is pertinent to mention here that during trial, PW30 Ct. Harender and PW31 SI Pramod in their respective testimonies have categorically deposed that the iron rod/pipe was hollow and that the same was like iron pipe of ceiling fan.
122. In view of the aforesaid facts, the testimonies on record and the manner in which injury was caused coupled with the fact that the nature of weapon which was used in the commission of offence was a hollow iron pipe, it is established that the occurrence took place due to sudden fight i.e. a fight which was unexpected or pre-mediated. There was no intention of either of the accused persons to kill or cause the death of Sikander.
123. In view of the aforesaid discussion, I am of the considered view that the prosecution has been able to prove that both the accused persons caused the death of Sikander in the said sudden fight and that they had no intention to cause the death of Sikander and they were not having any motive to cause the death of Sikander. However, in view of the above, I am of the opinion that the facts of the case does not make out a case for offence punishable under Section 302 IPC however, both the accused persons Manoj Mahto and Vinod Mahto are liable to be convicted for offence punishable under Section 304 FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 80 of 83 IPC. Now, it has to be ascertained as to whether the prosecution has been able to prove offence under Section 304 Part I IPC or offence punishable under Section 304 Part II IPC.
124. Here it is observed that the distinction between section 304 Part I and Part II of IPC can be summarized as under:-
For the purpose of awarding sentence sec. 304, IPC divides culpable homicide not amounting to murder in two parts on the basis of intensity and gravity. Part I - (a) which is considered to be more serious and grave in nature, liability has to be proved on the basis of intention of the person while committing the offence. a. It covers those cases which fall within one of the exceptions 1 to 5 of section 300 IPC and cases which fall within second clause of sec. 299, IPC. b. Punishment - Imprisonment for life, or imprisonment for either description for a term which may extend to ten years and fine.
Part II - (a) which is considered to be less serious in nature, the liability does not depend upon the intention rather knowledge is the basis for punishment.
(b) It applies when the act is done with the knowledge that is likely to cause death but no intention to cause death (third clause of sec. 299, IPC). However, if an offence is committed with the knowledge 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 such act is done without any excuse, then the offence will be taken out of the purview of sec. 304, Pt. II, and would be covered under sec. 302, as the offence would amount to murder under sec. 300, cl (4). Thus, the knowledge referred to in Pt II of s 304 is of a lesser degree than the special knowledge referred to in cl (4) of sec. 300.
(c) Punishment - Imprisonment extending up to 10 years or fine.
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 81 of 83 The law is well settled to the effect that whenever a court is confronted with the question of whether a killing is murder or culpable homicide, it will be convenient to approach the problem in 3 stages:
1. In the first stage, proof of causal connection between the act and death is determined.
2. In second stage, it is determined whether the act of the accused amounts to culpable homicide'. If the answer is yes', then the third stage is reached.
3. In third stage, it is determined whether the act is murder' e.g. case within the ambit of four clauses of Sec. 300. If the answer is negative, then the offence would be culpable homicide not amounting to murder' punishable under the first or second part of Sec.
304, depending on whether the second or third clause of Sec. 299 is applicable.
125. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
126. This being the background, I hereby hold that the prosecution has been able to prove and establish that the accused persons namely Manoj Mahto and Vinod Mahto had caused injuries to Sikander (deceased) with hollow iron pipe as a result of which Sikander had expired and the accused persons caused the said injuries on the person of Sikander with the knowledge that it is likely to cause his death but without any intention to cause his death and FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 82 of 83 accordingly, both the accused persons are convicted for offence punishable under Section 304 Part II IPC read with Section 34 IPC. Further, the prosecution has also been able to prove that both the accused persons in furtherance of their common intention had also voluntarily caused grievous hurt on the person of Kailash Kumar (PW10) and accordingly, they are also convicted for offence punishable under Section 325 read with Section 34 IPC.
127. Copy of this judgment be provided Dasti to both the sides free of cost.
(Passed & announced
in open court today) (MANISH KHURANA)
Addl. Sessions Judge-04
West District, Tis Hazari Courts
Delhi/09.02.2023
FIR No. 159/2016 State Vs. Manoj Mahto & Anr PS Patel Nagar Page no. 83 of 83