Delhi District Court
State vs . Krishna Murthi @ Vicky Etc. on 13 March, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No.36/08)
Unique ID case No. 02404R0001522008
State Vs. Krishna Murthi @ Vicky Etc.
FIR No. : 1107/07
U/s : 308/120B/34 IPC
P.S. : Saraswati Vihar
State Vs. 1 Krishna Murthi @ Vicky
S/o Ramesh
R/o L233, J.J. Colony,
Shakurpur, Delhi.
2 Soniya @ Sona
w/o Kartikiyan
r/o B1/170, New Moti Nagar,
Delhi.
Date of institution of case 09.04.2008
Date on which, judgment has been reserved 13.03.2013
Date of pronouncement of judgment 13.03.2013
SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 1 of 26
2
JUDGMENT:
1 Briefly stated the case of the prosecution is that on 03.12.2007, information was received at P.S. Saraswati Vihar, regarding quarrel at G204, Shakurpur. The said information was reduced to writing vide DD No.36A dated 03.12.2007 i.e. Ex.PW24/A and was handed over to SI Ved Prakash for investigation. The PW24 SI Ved Prakash proceeded to the spot along with PW4 Ct. Ved Prakash and PW7 Ct. Surender, where they came to know that injured had been removed to Jaipur Golden Hospital. IO did not find any eye witness at the spot and so he left PW7 Ct. Surender at the spot for supervision and went to Jaipur Golden Hospital where injured Arun Kumar was found admitted vide MLC No.8222, and was declared "unfit for statement". The PW6 Narender, who had taken the injured to hospital, and PW3 Raj Rani, mother of the injured, were also found present, however, they could not tell IO anything about the incident. The IO got case FIR Ex.PW22/A registered on basis of Ex.PW24/A i.e. DD No.36A.
2 During the course of investigations, IO seized earth control samples as well as the samples of blood stained earth from the spot. He also seized blood stained piece of brick from the spot. No eye witness to the incident was found by the IO and matter was kept pending investigations. On 30.12.2008 injured was discharged from the hospital and thereafter IO recorded his statement wherein complainant made allegations of assault against accused Krishna Murti @ Vicky and Vardha Muthu @ Max and he further alleged that the said assault had been carried out at the instance of accused Sonia @ Sona. The assailants named by the injured could not be traced by the IO. On SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 2 of 26 3 02.02.2008, accused Krishna Murthi @ Vicky was arrested by staff of Special Cell in case FIR No.4/08 u/s.25 Arms Act and he made disclosure about his involvement in the present case. On receiving information in this regard, PW24 interrogated and arrested the accused Krishna Murthi @ Vicky in the present case with the permission of the concerned Court. Subsequently accused Sonia @ Sona was also arrested in case FIR No.10/08 and she too is stated to have disclosed about her involvement in the present case. Accused Sonia @ Sona was interrogated and arrested in the present case by PW24 SI Ved Prakash with the permission of the concerned Court. The third accused namely Vardha Muthu @ Max could not be arrested.
3 During the course of further investigations, IO had the exhibits of the case sent to FSL and after completing investigations, charge sheet was prepared and filed in the concerned Court.
4 Upon committal of this case to the court of Sessions, charges for the offence under Sections 308/120B/34 IPC were framed against the accused Krishna Murti @ Vicky and Sonia @ Sona. However, accused persons pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 5 In order to prove its case, prosecution has examined 25 witnesses. Injured and other Public Witnesses 6 PW1 Arun Kumar is the injured in the present case. His testimony shall be SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 3 of 26 4 discussed at length in the following paragraphs.
7 The PW2, Neeraj Bajaj, is the brother of the injured. He deposed that on the night intervening 03 / 04.12.2007, he returned to his house at about 12:00 midnight and that when he reached gali in front of his house, he found police officials present there and came to know that his brother had been admitted in Jaipur Golden Hospital in injured condition. He joined investigations with the IO wherein blood stained earth and piece of blood stained brick were seized from the spot by the IO. The PW2 identified his signatures on memo Ex.PW2/A vide which the abovementioned articles were seized by the IO. He also identified the half piece of brick and stated that it was the same brick which had been seized by the IO in his presence and the same was exhibited as Ex.P1. 8 During his crossexamination by learned counsel for accused Krishna Murthi, PW2 stated that he came to know about involvement of accused in the present case 34 days after the incident and had stated about his suspicion to the Police also. He also deposed that his brother regained consciousness after about 12 days. 9 The PW3, Raj Rani, is the mother of the injured. She deposed that her son Arun Kumar @ Sonu was running a grocery shop on the ground floor of their house and that on 03.12.2007 he called PW3 from the house and asked her to sit in the shop as he had to go for some work in the gali. The PW3 sat in the shop and thereafter her son Arun Kumar went towards the gali at about 8:50 PM. He came back after about 15 minutes in an injured condition with blood oozing from his wounds. He fell down on the ground in front of the shop and became conscious. The PW3 stated that at that time SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 4 of 26 5 their customer Narender was present at the shop and took her injured son Arun Kumar to Jaipur Golden Hospital and that after closing the shop, she too went to Jaipur Golden Hospital and that her son remained admitted in hospital for about one month. 10 During her crossexamination by learned counsels for accused persons, PW3 stated that at the time of incident, accused Soniya @ Sona was residing in their neighbourhood and that she came to know that accused were involved in the present case after 5 - 6 days of the incident.
11 The PW6 Narender had taken the injured to the hospital and deposed regarding the same by stating that on 03.12.2007 at about 9:00 - 9:10 AM, he went to shop of Sonu (i.e. injured Arun Kumar) and that at that time, he saw mother of Sonu weeping. Other public persons were also present. The PW6 saw Sonu lying in a seriously injured condition and he took him to Jaipur Golden Hospital in TSR, got him admitted there and after mother of injured reached there, he returned back to his house. 12 During his crossexamination, PW6 stated that he had not inquired from injured as to how he had sustained injured.
Doctor and expert witnesses 13 The PW17 Dr. Pradeep Dua was deputed in place of Dr. Naresh Nagpal, who had examined injured Arun Kumar @ Sonu, on being admitted in Jaipur Golden Hospital on 03.12.2007, and prepared his MLC. He proved the MLC of injured as SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 5 of 26 6 Ex.PW17/A and the signatures of Dr. Naresh Nagpal at point "A" thereupon. PW17 also proved the opinion about the nature of injuries as 'Grievous' which was given by Dr. Sanjay Gupta at point "B" on MLC Ex.PW17/A. He stated that both Dr. Naresh Nagpal and Dr. Sanjay Gupta had left the services of the hospital. 14 During his crossexamination, PW17 admitted that patient has not been examined in his presence by Dr. Naresh Nagpal and Dr. Sanjay Gupta. Dr. Sanjay Gupta was subsequently traced out and summoned as PW19. He proved his signatures at point "X1" (earlier exhibited at point "B" by PW17) on MLC Ex.PW17/A. 15 The PW14, Dr. Sheetal Yadav, had taken blood sample of the injured Arun Kumar @ Sonu on 28.03.2008 and deposed regarding the same. She proved the MLC of the injured prepared on 28.03.2008 as Ex.PW14/A and stated that the sample was sealed and handed over to Ct. Om Prakash Yadav, who had brought the injured for taking his blood sample.
16 The PW18, Sh. Parshuram Singh, had examined the cemented material which was received in Physics Division through Biology Division of FSL. He proved his report of examination as Ex.PW18/A and stated that the parcel No.C containing cemented material described as "blood stained soil" and parcel No.D containing cemented material described as "earth control", were given Exhibits No.C and D respectively and on examination both the exhibits were found possessing similar physical characteristics.
SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 6 of 26 7 Police witnesses 17 The PW24, SI Ved Prakash, is the IO of the case. He deposed that on 03.12.2007, he was attending another call in the area and received DD No.36A Ex.PW24/A regarding quarrel at G204, Shakurpur through PW4 Ct. Ved Prakash and that thereafter PW24 along with PW4 Ct. Ved Prakash and PW7 Ct. Surender went to the spot where they came to know that injured Arun Kumar had already been removed to Jaipur Golden Hospital by one Narender. Blood was found lying in front of house No.G204 and G216. The PW24 further deposed that he left PW4 Ct. Ved Prakash at the spot and went with PW7 Ct. Surender to hospital and collected the MLC Ex.PW17/A of the injured whereupon doctor mentioned patient to be 'unfit for statement' and that no eye witness met him at the spot and that PW24 prepared rukka Ex.PW24/B on the basis of Ex.PW24/A i.e. DD No.36A and sent the said rukka through PW7 Ct. Surender for registration of the case. The PW24 then deposed that he returned to spot where PW4 Ct. Ved Prakash and one Neeraj, brother of injured met him and that one half piece of brick, having blood stains, was found lying in front of house No. G216, Shakurpur. The PW24 lifted blood from two places i.e. from in front of house No.G216 and G204, and put them in separate plastic jars. He also lifted earth control samples from in front of house No. G204 and put them in plastic jar. The bloodstained half piece of brick was also lifted, kept in plastic poly bag and converted into cloth parcels. All the three plastic containers containing samples of bloodstained earth and earth control sample were also converted into parcels and sealed by the IO and seized vide memo Ex.PW2/A. The PW24 then deposed that he recorded statement of witnesses namely SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 7 of 26 8 Neeraj Bajaj, Narender and the Constables and that he also made inquiries from other persons at the spot but there was no clue about the cause of the quarrel and so he returned back to PS and deposited exhibits with MHCM. On 07.12.2007 IO recorded the statement of Smt. Raj Rani, mother of the injured. The PW24 further deposed that he continued to visit hospital but injured remained 'unfit for statement' and that on 30.12.2007 injured Arun Kumar @ Sonu met him at his house after being discharged from hospital and that he prepared site plan Ex.PW24/C at the pointing out of the injured. The injured disclosed names of assailants in his statement and thereafter PW24 commenced search for them but in vain. The PW24 further deposed that on 02.02.2008 DD No.19A i.e. Ex.PW21/A was recorded on the basis of information received from SI Dinesh Pal of Special Cell (Southern Range) regarding arrest of accused Krishna Murthi @ Vicky in case FIR No.4/2008 u/s.25 of Arms Act of P.S. Special Cell and that in the said case accused had disclosed about his involvement in the present case as well. On 11.02.2008 PW24 arrested accused Krishna Murthi @ Vicky with the permission of concerned Court and took his personal search vide memos Ex.PW8/A and Ex.PW8/B respectively. He also recorded disclosure statement of accused vide Ex.PW8/C. The PW24 further deposed that accused Krishna Murthi @ Vicky disclosed about involvement of his coaccused namely Soniya @ Sona in the present case and further disclosed that accused Soniya @ Sona was in J.C. in a case registered at P.S. Punjabi Bagh and accordingly, PW24 inquired from P.S. Punjabi Bagh and found that accused Soniya @ Sona was in J.C. in case FIR No.10/2008 registered at P.S. Punjabi Bagh. The PW24 got issued production warrants of accused Soniya @ Sona and on her production before the concerned Court on 13.02.2008 PW24 took permission of the Court and formally arrested accused Soniya @ Sona vide SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 8 of 26 9 arrest memo Ex.PW5/B. He also recorded disclosure statement of accused Soniya @ Sona vide Ex.PW5/A. 18 During the course of further investigations, PW24 recorded statement of police officials of Special Cell. On 28.03.2008 he sent injured Arun Kumar along with PW12 Ct. Om Prakash to Bhagwan Mahavir Hospital for collection of blood samples of the injured and that said blood samples were handed over by concerned doctor to Ct. Om Prakash, who brought back the same along with MLC of the injured, Ex.PW14/A, which were seized by the PW24 vide memo Ex.PW1/A. The PW24 then deposed that on 31.03.2008 he got the exhibits of the present case sent to FSL Rohini through PW10 Ct. Surender vide RC No.40/21/08. After completing investigations IO prepared the charge sheet and filed the same in the Court. He also deposed that he had made efforts to arrest accused Verdha Murthy @ Max but without any success. PW24 identified the case property i.e. one half piece of brick and stated that it was the same brick which had been seized by him from the spot and the same was exhibited as Ex.P1. 19 During his crossexamination by learned defence counsels, PW24 termed it correct that from 03.12.2007 till 02.02.2008, the accused persons could not be arrested. He denied that disclosure statement of accused Krishna Murthi @ Vicky and Soniya @ Sona was obtained under duress. The PW24 admitted that the place of occurrence was a thickly populated residential area. He further stated that he had made inquiry from residents of locality about the quarrel but there was no clue received by him. Regarding the seizure of brick PW24 stated that it was lifted from the spot at about 2:00 AM in the night intervening 03 - 04.12.2007. PW24 denied that some unknown persons SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 9 of 26 10 had assaulted injured Arun Kumar or that he had falsely implicated accused persons in the present case.
20 From the further crossexamination of PW24 it is brought out that he had not obtained discharge summary of the injured from the hospital nor could he state when the injured was discharged from the hospital. He could also not tell if the injured visited the Police Station in the intervening period and stated that as he was on leave he could not state anything about it. The PW24 further stated that he had not conducted any investigation to effect that there was love affair between accused Krishna Murthi @ Vicky and Soniya @ Sona and that he had also not collected any documentary evidence and had also not examined the landlord concerned to verify the fact if accused Soniya @ Sona was residing at House No. G216 or not. The PW24 denied that accused Soniya @ Sona had left house No.G216 one month prior to the incident. 21 The PW4, Ct. Ved Prakash, had joined investigations of the case with the IO, however, he is stated the date on which he had joined investigations to be on 03.12.2004. He also stated that he was left at the spot by the IO for safe custody of place of the offence and that when IO returned back to spot, brother of injured Neeraj Bajaj also met them and that IO had seized bloodstained piece of brick and earth control, kept them in white cloth and plastic polythene, sealed them with the seal of VP and seized them vide memo Ex.PW2/A. 22 During his crossexamination, PW4 stated that bloodstained brick seized by the IO, was lying in the corner of gali. He also stated that blood was lying scattered in SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 10 of 26 11 two places.
23 The PW7, Ct. Surender, is also stated to have joined investigations of the case with the IO PW24 SI Ved Prakash and PW4 Ct. Ved Prakash. He, however, stated that the date of joining of said investigations was 03.05.2007. The PW7 further deposed that on reaching the spot, they had found blood spots in front of house No. G204 and G216 and that piece of bloodstained brick was found in front of house No. G216. PW7 then deposed about his accompanying the IO to the hospital and returning to spot and then going to PS for getting the FIR registered. 24 The PW9, HC Subhash Chander, deposed that on 04.12.2007, he was working as duty officer at PS Saraswati Vihar and that on that day, at about 1.25 am, on receipt of rukka through Ct. Surender sent by SI Ved Prakash, he recorded the FIR No.1107/07 u/s 308 IPC of this case and he proved the computer generated copy of the FIR as Ex.PW9/A and the endorsement made by him on rukka as Ex.PW9/B. 25 The PW10, Ct. Surender, had taken the exhibits of the case to FSL on 31.03.2008 and deposed regarding the same.
26 The PW13, HC Narender, was posted as MHCM at P.S. Saraswati Vihar at the relevant time. He deposed about deposit of exhibits of the present case by IO SI Ved Prakash on 04.12.2007 and about sending the said exhibits to FSL Rohini and receiving the FSL result on 09.01.2009. He produced the original register No.19 and proved the photocopies of the relevant entries as Ex.PW13/A and Ex.PW13/B SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 11 of 26 12 respectively.
27 The PW12, Ct. Om Prakash, had taken injured Arun Kumar to Bhagwan Mahavir Hospital on 28.03.2008 for taking of his blood samples and deposed regarding the same.
28 The PW11, Ct. Satish; PW15, Inspr. Shri Krishan and PW16, SI Rajinder Khatri were members of the raiding party of the Special Cell, New Friends Colony, which had apprehended accused Krishna Murthi @ Vicky on 01.02.2008 and got case FIR No. 4/08, P.S. Special Cell (Special Branch), Lodhi Colony, New Delhi, registered against him and deposed regarding the same.
29 The PW15, Inspr. Shri Krishan, also deposed that accused Krishna Murthi @ Vicky made disclosure statement Ex.PW15/A regarding his involvement in the present case and had further stated that he had committed the crime along with his co accused Soniya @ Sona and Max.
30 The PW23, SI U.R. Khan, had recorded the case FIR No.4/08 u/s. 25 of Arms Act and deposed regarding the same. He proved the photocopy of said FIR as Ex.PW23/A by producing the original record.
31 The PW21, ASI Sunita Dutta, was posted as duty officer at PS Saraswati Vihar on 02.02.2008 and had received message from SI Dinesh Pal of Special Cell on 02.02.2008 at about 12:30 PM regarding the arrest of accused Krishna Murthi @ Vicky SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 12 of 26 13 by Special Cell and had reduced the said information into writing vide DD No.19A and deposed regarding the same. She proved the attested copy of DD No.19A as Ex.PW21/A. 32 The PW20, Sh. Chandramani Prasad, Mauza Clerk, Record Room (Criminal), Tis Hazari Courts, Delhi, produced the file of case titled as "State Vs. Krishna Murthi" bearing FIR No.04/08, u/s.25 of Arms Act, P.S. Special Cell and proved photocopy of the disclosure statement of accused as Ex.PW15/A by verifying the same from the original record.
33 The PW22, HC Lalit Tomar, produced the original FIR No.10/08 u/s.394/34 IPC registered at P.S. Punjabi Bagh and proved the photocopy thereof as Ex.PW22/A by verifying from the original record.
34 The PW8, HC Sushil Kumar, had joined investigations with PW24 SI Ved Prakash during the arrest of accused Krishna Murthi @ Vicky in the present case and deposed regarding the same. He proved his signatures on Ex.PW8/A i.e. the arrest memo of accused; Ex.PW8/B i.e. the personal search memo of accused and Ex.PW8/C i.e. the disclosure statement of accused. He further deposed that he had again joined investigations of the present case with IO PW24 SI Ved Prakash and PW5 W/Ct. Sangeeta during the arrest of accused Soniya @ Sona. He proved his signatures on Ex.PW5/B i.e. the arrest memo of accused Soniya @ Sona and Ex.PW5/A i.e. the disclosure statement of accused Soniya @ Sona.
SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 13 of 26 14 35 The PW5, W/Ct. Sangeeta, had also joined proceedings of arrest of accused Soniya @ Sona with PW24 SI Ved Prakash and PW8 HC Sushil Kumar on 13.02.2008 and deposed regarding the same. She proved her signatures on the disclosure statement and arrest memo of accused Soniya @ Sona. 36 After closing of prosecution evidence, statement of accused Krishna Murthi @ Vicky and Soniya @ Sona were recorded u/s 313 Cr.P.C. The accused persons termed all incriminating evidence against them are to be incorrect. The accused persons further stated that they are innocent and had been falsely implicated in the case due to pressure on the Police to solve the case. The accused Soniya @ Sona desired to lead evidence in defence and examined her sister Smt. Valli as DW1. The DW1 deposed that accused Soniya @ Sona was her real sister and had been residing with her since November, 2007 at house No. H482, Shakurpur, J.J. Colony, Delhi, since the time of quarrel with her husband in the year 2007 and prior to registration of the present case against her.
37 During her crossexamination by learned Additional PP, DW1 admitted that she did not have any document to prove the fact that accused Soniya @ Sona had been residing with her at house No. H482, Shakurpur, J.J. Colony, Delhi, since November, 2007. She also stated that HBlock of J.J. Colony, Shakurpur was within the distance of 2 - 3 gali from GBlock. She denied that at the time of incident, accused Soniya @ Sona was residing at G216, Shakurpur, J.J. Colony, Delhi. 38 After recording of statement of accused persons, it transpired that certain SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 14 of 26 15 biological samples had been taken in the case by IO but report thereof was not on record. Accordingly, IO SI Ved Prakash was summoned for clarification regarding the biological sample taken by him in the Case. The IO filed report of bio division on 03.09.2013 after which PW25 Dr. Anita Chari was summoned who deposed that she had examined the biological samples in the case. She proved her report of biological examination of samples as Ex.PW25/A and that of serological examination as Ex.PW25/B respectively.
39 Additional statement of both the accused persons u/s.313 were recorded on 14.12.2012 to put to them statement of PW25 and her reports Ex.PW25/A and Ex.PW25/B respectively. Both the accused reiterated that they were innocent and had been falsely implicated in the case.
40 Arguments have been addressed by learned Additional PP for the State as well as Sh. Ajay Malha, learned counsel for accused Soniya @ Sona and Sh. Sachin Sharma, learned Amicus Curie for accused Krishna Murthi @ Vicky. 41 Written submissions have also been filed on behalf of accused Krishna Murthi @ Vicky by learned Amicus Curie.
42 Learned Additional PP has contended that prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt and that PW1 injured Arun Kumar has clearly deposed about the manner in which he was called to the place of incident by accused Soniya @ Sona and while she kept him engaged in talks he SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 15 of 26 16 was attacked by accused Krishna Murthi @ Vicky and Verdha Murthy @ Max and seriously injured. It is accordingly prayed that both the accused persons be convicted for the charged offence u/s.308/120B/34 IPC.
43 On the other hand learned counsels for accused persons have contended that the accused persons have been named in the present case as an after thought. It is contended that the injured had regained consciousness after about 10 days of the incident and yet his statement was recorded by the IO belatedly on 30.12.2007 and that there is no explanation for this delay. It is also contended that accused persons have been falsely implicated in the case as accused Soniya @ Sona was earlier friendly with injured Arun Kumar and later when she befriended accused Krishna Murthi @ Vicky, the same was not to the liking of injured Arun Kumar. It is also contended that the alleged weapon of offence namely the piece of brick does not connect the accused persons with the present incident since the place of recovery of brick itself is doubtful and even otherwise it has not yielded positive result in the FSL report as is evident from testimony of PW25 Smt. Anita Chari. The place of incident is also claimed to be disputed and it is stated that the prosecution could not establish whether the incident had taken place outside house No. G204 or house No. G216. In addition on behalf of accused Soniya @ Sona it is contended that there is nothing incriminating brought on record against accused Soniya @ Sona except for the disclosure statement of coaccused Krishna Murthi @ Vicky and that prosecution has failed to prove that accused Soniya @ Sona was residing at house No.G216 at the time of incident. The testimony of DW1 Smt. Valli has been relied upon in this regard. It is accordingly prayed that both the accused persons be acquitted of charged offences.
SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 16 of 26 17 44 I have heard the rival contention raised before me and also perused the record as well as written submissions filed on behalf of accused Krishna Murthi @ Vicky. I have also carefully considered the evidence adduced by the prosecution in support of its case.
45 In the present case accused Krishna Murthi @ Vicky and Soniya @ Sona are stated to have acted in furtherance of their common intention with their associate Verdha Murthy @ Max (not arrested) to assault Arun Kumar @ Sonu and caused injuries to him with such intention or knowledge that had his death being caused by the acts of accused then they would have been guilty of culpable homicide not amounting to murder.
46 The Section 308 of the IPC deals with attempt to commit culpable homicide and reads as under : "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both".
47 In order to attract the applicability of Section 308/34 IPC, the act or assault by the accused persons should have been done in furtherance of their SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 17 of 26 18 common intention, with such intention or knowledge and under such circumstances that if by that act, the accused persons had caused death, they would have been guilty of culpable homicide not amounting to murder.
48 In the present case injured Arun Kumar @ Sonu is the only material witness, who could link the accused Krishna Murthi @ Vicky and Soniya @ Sona with the charged offences. There is no eye witness to the incident put forth by the prosecution. The incident in the present case is alleged to have occurred on 03.12.2007 at about 9:15 PM. The statement of injured Arun Kumar @ Sonu was recorded by the IO on 30.12.2007. In the said statement injured stated that he was residing at House No.G204, J.J. Colony, Shakurpur, Delhi, and was running his Parchun shop on the ground floor of his house. On 03.12.2007 at about 9:00 PM, he was returning from F Block, Shakurpur, after purchasing Bidi, Cigarette, etc. for his shop and met accused Soniya @ Sona r/o G216, J.J. Colony, Shakurpur, in park situated in gali on backside of the gali in which his house is situated. He further stated that accused Soniya @ Sona had been deserted by her husband and that she had two children and that he was having friendship with her. The said Soniya @ Sona also had a friend by the name of Krishna Murthi @ Vicky, who was a criminal type of person. The complainant stated that accused Soniya @ Sona asked him to meet her at her house. Injured Arun Kumar @ Sonu told her that he would drop the articles he was carrying at his shop and would return back and accordingly, he went to his shop, asked his mother to take care of the shop and went towards Soniya's house. Accused Soniya @ Sona was standing in gali outside her house and injured as well as accused Soniya @ Sona started talking to each other while standing in the gali. At that time no one else was passing by the said gali. SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 18 of 26 19 The injured was having his back towards the park. All of a sudden injured was caught hold from behind by a boy named Verdha Murthy @ Max and was given blow on his head with a piece of brick by accused Krishna Murthi @ Vicky and thereafter accused Soniya @ Sona told both of them to go away from there. The injured fell down at the spot. Accused Soniya @ Sona also went away from there after locking her room. Injured somehow reached his shop and became unconscious and stated that he did not know what happened thereafter. He alleged that accused Soniya @ Sona had conspired with her coaccused Krishna Murthi @ Vicky and Verdha Murthy @ Max and had assaulted him with intention to kill him. He also stated that he knew accused Krishna Murthi @ Vicky and Verdha Murthy @ Max from before and that accused Krishna Murthi @ Vicky was resident of LBlock, J.J. Colony, Shakurpur. A supplementary statement of complainant was also recorded on 28.03.2008 when his blood samples were taken.
49 The complainant / injured was examined as PW1 before the Court. During his testimony he deposed as per his statement dated 30.12.2007 with certain modifications. He deposed that at the time of incident accused Soniya @ Sona had also hit him with brick once or twice and had caused injury on his head and that thereafter accused Soniya @ Sona locked her house and that all the three accused ran away from the spot. He further stated that he remain admitted in hospital for about one month. The witness identified both accused Soniya @ Sona and Krishna Murthi @ Vicky. He also identified one half piece of brick which was then exhibited as Ex.P1. 50 During his crossexamination by learned defence counsel, PW1 stated SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 19 of 26 20 that there was a distance of about 50 steps between house No.G216 and G204. He also stated that he could not raise alarm when he was beaten as his mouth was covered by boy named Max. PW1 could not remember for how many days, he remained unconscious in the hospital. He also stated that Police was not allowed to meet him during the said period by the doctors of the hospital and that after regaining consciousness, he narrated the entire incident to the Police. He also stated that he had come to know about arrest of accused persons in the present case in January, 2008 and that he was called to Police Station by the Police and was shown the accused persons. The PW1 denied the suggestion that on the day of incident, he had tried to outrage the modesty of accused Soniya and was given beatings by a mob. He also denied the suggestion that he had named accused Krishna Murthi as he loved accused Soniya and could not accept her live in relationship with accused Krishna Murthi. 51 During his further crossexamination PW1 termed it correct that prior to the incident there was no quarrel between him, accused Soniya and accused Krishna Murthi. He also stated that he had told the Police in his statement that he had called accused Soniya to a park which was dimly lit and not frequented by public persons. He further stated that as soon as he reached the park, he was caught hold by accused Max. The PW1 denied that accused Soniya was not residing in the area at the time of incident or that he had falsely implicated accused Soniya to teach her a lesson.
52 In the present case as already observed the incident had taken place on 03.11.2007. Neither the family members i.e. PW2 Neeraj, brother of the injured or SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 20 of 26 21 PW3 Raj Rani, mother of the injured, nor any other public witness i.e. PW6 Narender had any clue as to manner in which injured had sustained injuries and who was responsible for the same.
53 In his crossexamination PW2 Neeraj, brother of the injured, stated that his brother had regained consciousness after about 12 days of the incident. The PW3 Smt. Raj Rani, mother of the injured, does not state anything as to when her son regained consciousness but she stated that her son Arun Kumar remained admitted in hospital for about one month. She further stated that she came to know that accused persons were involved in the present case after 56 days of the incident but she does not state about the source from which she had received the said information. As per Ex.PW17/A i.e. MLC of the injured Arun Kumar, he continued to remain "unfit for statement" till 20.12.2007 and thereafter presumably he was "fit for statement", however, the statement of injured was recorded only on 30.12.2007 by the IO after considerable delay. No explanation has been given by the prosecution for this delay in recording of statement of injured Arun Kumar, who for the first time in his statement dated 30.12.2007 named accused Soniya @ Sona, Krishna Murthi @ Vicky and Verdha Murthy @ Max. Moreover, in his statement dated 30.12.2007, the injured has assigned no role to accused Soniya @ Sona other than that she had called him to talk to her. There is no murmur that accused Soniya @ Sona had exhorted or signaled to accused Krishna Murthi @ Vicky or accused Verdha Murthy @ Max in any manner to attack the injured Arun Kumar. The only allegation against accused Soniya @ Sona is that after accused Krishna Murthi @ Vicky had given him a blow with the brick on his head, accused Soniya @ Sona asked accused Krishna Murthi @ Vicky and Verdha Murthy @ Max to go away SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 21 of 26 22 from the spot and she too went away from there after locking her door. 54 In his statement as PW1 injured Arun Kumar has improved upon his earlier statement to state that accused Soniya @ Sona had also hit him with brick once or twice and thereafter she locked her house and all three accused ran away from the spot. He does not state anything about accused Soniya @ Sona asking accused Krishna Murthi @ Vicky and Verdha Murthy @ Max to run away from the spot before locking her room and running away.
55 During his crossexamination by counsel for accused Soniya, PW1 stated that he had told the Police that he had called Soniya to a park which was dimly lit and not frequented by public persons and that as soon as he reached the park, he was caught hold by Verdha Murthy @ Max. Thus the complainant has changed his version during his crossexamination and shifted the place of incident from outside house of accused Soniya to a dimly lit park. He has also changed his version that when he was talking to accused Soniya @ Sona in gali outside her house with his back towards the park, all of a sudden he was caught hold of from behind by accused Verdha Murthy @ Max and then given blow on his head by accused Krishna Murthi @ Vicky with a piece of brick. The injured has admitted that prior to the incident there was no occasion for him to quarrel with accused Soniya @ Sona or accused Krishna Murthi @ Vicky and in these circumstances, it is difficult to comprehend why all of a sudden accused Soniya @ Sona came up with a conspiracy with her coaccused Krishna Murthi @ Vicky and Verdha Murthy @ Max to unleash a murderous assault on complainant / injured, who survived the same. Moreover considering the conflicting version given by injured in his SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 22 of 26 23 examination in chief and his crossexamination, a doubt is created as to the place of incident and the manner in which the incident had taken place and the persons, who were responsible for causing injuries to him. It is obvious that injured has improved upon his version to rope in accused Soniya @ Sona. The fact that accused Soniya was present at the spot by itself does not make her responsible for the incident. In case of Matru @ Girish Chandra Vs. The State of U.P., AIR 1971 SC 1050, it has been held that, "The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of selfpreservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the Courts are disinclined to attach more importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 23 of 26 24 necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence."
56 A similar view has been reiterated in case of Rehman Vs. State of U.P., AIR 1972 SC 110 and State of M.P. Vs. Paltan Mallah & Ors., AIR 2005 SC 733. Thus merely because accused Soniya @ Sona ran away from the spot is not sufficient to prove her guilt. She may have been a witness to the incident, who panicked after seeing such an act of violence.
57 Further in the present case prosecution has not placed anything on record to show what were the exact injuries sustained by the injured and how the nature of injuries on his person was opined to be 'grevious'. The concerned doctor, who had given nature of injuries to be 'grevious' was examined as PW19 but he has not explained on what basis he had given said opinion. The doctor, who had prepared the MLC of injured Arun Kumar on 03.12.2007, has not been examined by the prosecution and PW17 Dr. Pradeep Dua, who was examined in his place admitted that he had not personally examined the injured / patient nor was the patient examined in his presence when his MLC Ex.PW17/A was prepared.
58 Further the weapon of offence, namely the brick, is alleged to have been seized by the IO from the spot yet the same was not produced before the doctor, who gave opinion regarding the nature of injuries to ascertain whether the injured had sustained injuries by the said brick Ex.P1 or not. This is again a serious lacunae in the case of the prosecution. Moreover PW4 Ct. Ved Prakash, PW7 Ct. Surender and SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 24 of 26 25 PW24 IO SI Ved Prakash, who were initially present during investigations carried out at the spot on 03 / 04.12.2007 have given different version. While PW4 stated that he had joined investigations on 03.12.2004, PW7 stated that he had joined investigations on 03.05.2007 and PW24 IO stated that investigations were conducted by him on 03.12.2007, which is actual date when the incident had taken place and investigations were commenced after registration of the FIR. Further PW4 stated that IO had seized the bloodstained piece of brick and earth control sample, converted them to pullanda and sealed them with the seal of 'VP' and seized them vide memo Ex.PW2/A and that the brick was seized in front of house No.G204, which is in the corner of the gali. On the other hand, PW7 stated that the piece of brick was found in front of house No.G216 and that blood spots were found in front of house No. G204 and G216. The IO claimed that he had lifted bloodstained earth from two places i.e. in front of House No.G216 and G204 and had also taken earth control sample from in front of G204. He further stated that he had seized the bloodstained half piece of brick but does not state from where. He has, however, shown point "A" in site plan Ex.PW24/C which is in front of House No.G216.
59 The PW2 Neeraj Bajaj, brother of injured, in whose presence the brick and bloodstained earth were seized merely stated that it was lifted from the spot. He does not state from where exactly said articles were lifted from, whether in front of House No.G204 or G216. Thus a considerable doubt is created as to the place from where the bloodstained brick was seized whether it was in front of house No.G204, which is the house where injured was residing, or house No.G216, where accused Soniya @ Sona is alleged to have been residing, or if the incident had taken place inside the park SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 25 of 26 26 as was stated to be the PW1 during his crossexamination. The fact that FSL result Ex.PW25/B did not show any reaction for specie of origin i.e. whether it was human blood or not by itself creates doubt regarding the alleged weapon of offence used in the incident.
60 The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has failed to prove the charges u/s 308/120B/34 IPC against the accused persons on record, beyond the reasonable doubts. Accordingly, I acquit both the accused persons - Krishna Murthi @ Vicky and Soniya @ Sona of the charged offences, giving them the benefit of doubt.
(Announced in the open Court ) (Illa Rawat)
(Today on 13.03.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 26 of 26
27
FIR No. 1107/07
P.S. Saraswati Vihar
08.03.2013
Present : Ld. Substitute Addl. PP for the State.
Accused Krishna Murthi @ Vicky produced from JC (but on bail in this case) with counsel Sh. Sachin Sharma, learned Amicus Curie.
Accused Soniya @ Sona on bail with counsel Sh. Ajay Mahla.
Accused Verdha Murthy @ Max is P.O. Clarification sought.
Be listed for clarification on 13.03.2013.
ASJ/NW01
Rohini/Delhi
08.03.2013
13.03.2013
Present: Ld. Substitute Addl. PP for the State.
Accused Krishna Murthi @ Vicky produced from JC (but on bail in this case) with counsel Sh. Sachin Sharma, learned Amicus Curie.
Accused Soniya @ Sona on bail with counsel Sh. Ajay Mahla.
Accused Verdha Murthy @ Max is P.O. Clarification provided.
Judgment shall be passed during the course of the day.
ASJ/NW01 Rohini/Delhi 13.03.2013 SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 27 of 26 28 13.03.2013 Present: Ld. Substitute Addl. PP for the State.
Accused Krishna Murthi @ Vicky produced from JC (but on bail in this case) with counsel Sh. Sachin Sharma, learned Amicus Curie.
Accused Soniya @ Sona on bail with counsel Sh. Ajay Mahla.
Accused Verdha Murthy @ Max is P.O. Vide separate judgment announced today in the open Court, accused Krishna Murthi @ Vicky and Soniya @ Sona have been acquitted u/s.308/120B/34 IPC.
Accused Krishna Murthi @ Vicky is in custody, be released, if not wanted in any other case.
Accused Soniya @ Sona requests that her previously furnished bail bond may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bond of the accused Soniya @ Sona is extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 13.03.2013 SC No.36/08 State Vs. Krishna Murti @ Vicky Etc. Page Nos. 28 of 26