Delhi District Court
State vs Sh. Kumar Pal on 26 July, 2022
CNR No. DLNE01-000001-2003
State v. Kumar Pal etc.
SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri
Judgment dated 26.07.2022
DLNE01-000001-2003
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. No. HEADINGS Page Nos.
1 Description of Case & Memo of Parties 2-3
2 The case set up by the prosecution 3-5
3 Charge 5
4 Description of Prosecution Evidence 6-20
5 Plea of all accused under Section 313 Cr.P.C. 21-22
6 Defence Evidence 22-23
7 Arguments of Defence & Prosecution 23-26
APPRECIATION OF LAW, FACTS AND EVIDENCE
8 Incident & Place of Incident 26-42
NATURE OF INJURIES AND ROLE OF ACCUSED PERSONS
9 Injury on deceased Sushil 42-47
10 Injuries upon PW7, PW8, PW10 & PW13 47-49
11 Culpable homicide of Sushil and role of accused 49-53
persons
12 Decision 53
Page 1 of 53 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000001-2003
State v. Kumar Pal etc.
SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri
Judgment dated 26.07.2022
Sessions Case No. : 44265/2015
Under Section : 302/323/34 IPC
Police Station : Gokalpuri
FIR No. : 15/2003
CNR No. : DLNE01-000001-2003
In the matter of: -
STATE
VERSUS
1. SH. KUMAR PAL
S/o. Sh. Khajan Singh,
R/o. E-29, Gali No.2, Chand Bagh, Delhi.
2. SH. VIPUL KUMAR
S/o. Sh. Balkishan,
R/o. E-27, Gali No.1, Chand Bagh, Delhi.
3. SMT. PRAKASHWATI
W/o. Sh. Kumwar Pal,
R/o. E-29, Gali No.2, Chand Bagh, Delhi.
4. SH. SANJAY @ LALIT
S/o. Sh. Kumwar Pal,
R/o. E-29, Gali No.2, Chand Bagh, Delhi.
5. SMT. DHARAMWATI
W/o. Sh. Shankar Lal
R/o. E-29/A, 25 Foota Road, Chand Bagh, Delhi.
.....Accused Persons
Complainant : SH. SATISH KUMAR
S/o. Sh. Ram Khiladi,
R/o. H.No. E-52, Gali No.2,
Chand Bagh, Gokalpuri, Delhi.
Date of Institution : 10.04.2003
Date of reserving order : 19.07.2022
Date of pronouncement : 26.07.2022
Decision : All accused convicted u/s 323
r/w Sec. 34 IPC. Accused Vipul
is also convicted u/s 302 IPC.
Page 2 of 53 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000001-2003
State v. Kumar Pal etc.
SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri
Judgment dated 26.07.2022
(Section 437-A Cr.P.C. complied with by accused)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION: -
1 . Briefly stated, the case of the prosecution is that on 12.01.2003 on receipt of DD no.34 B, ASI Jamaluddin alongwith Ct. Abdul Khalid reached at E-52, Gali no.2, Chand Bagh, Delhi, where they came to know that injured had already been removed to GTB hospital. No public witness was available at the spot of incident. ASI Jamaluddin reached GTB hospital, where he obtained the MLCs of injured persons namely, Sushil (since deceased), Manish, Satish, Sarwati, Renu Bala, Sanjay, Kumar Pal, Vipul, Dharamwati and Prakashwati. Injured Sushil did not make statement due to pain and thereafter, statement of injured Satish was recorded, who stated that his brother Sushil used to sell electronic items procured from Chandni Chowk. He alleged that on 12.01.2003 at around 6 o'clock in the evening, Sushil came to the house. At that time, he was frightened and on enquiry, Sushil told Satish about the incident of grappling taken place between him and Vipul Kumar, who was relative of Kumar Pal, at Bhajanpura Chowk. Vipul had threatened Sushil to take revenge. Satish further alleged that Sushil narrated all these facts to his family members and they thought of making a complaint to the police. At about 7.30 p.m., when Satish along with Sushil came out of home to go to PS Gokalpuri to lodge a complaint, in the meantime, Vipul, Kumar Pal and son of Kumar Pal namely Sanjay, confronted them. Kumar Pal and Vipul were having iron rod in their hands, while Sanjay was having hockey stick in his Page 3 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 hand. Thereafter, Vipul assaulted on the head of Sushil with iron rod, as a result of which Sushil fell down on the ground. Kumar Pal assaulted on the head and hand of Satish with iron rod. Satish raised alarm and his brother Manish, mother Sarwati, and father Ram Khiladi came to rescue them. In the meantime, Prakashwati and Renu Bala also came there carrying dandas with them.
Sanjay assaulted on the head and hand of Manish with hockey stick, while Prakashwati, Renu Bala and Dharamwati started beating mother of Satish, as a result of which she sustained head and hand injuries. Father of Satish, namely, Ram Khiladi made a call to the police. PCR took Sushil and other persons to GTB hospital. Satish further alleged that he went to hospital himself. He asked the police to take action against Vipul, Kumar Pal, Sanjay, Renu Bala, Prakashwati and Dharamwati. 2 . During the treatment, injured Sushil expired on the intervening night of 15/16.01.2003 in the hospital. On 16.01.2003, postmortem examination of Sushil was conducted, wherein the doctor opined that the cause of death was cranio cerebral damage due to head injury by blunt force, which was sufficient to cause death in the ordinary course of nature. On receipt of this information, police registered this FIR. 3 . After completion of investigation, on 10.04.2003 a chargesheet was filed before Metropolitan Magistrate, Delhi, against accused Kumar Pal, Vipul Kumar, Prakashwati, Sanjay @ Lalit, Renu Bala (since juvenile) and Dharamwati for offences punishable under Section 302/323/149 IPC. Cognizance of aforesaid offences was taken and accused persons were summoned.
Page 4 of 53 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Thereafter, case was committed to the sessions court on 07.05.2003.
CHARGES: -
4 . On 31.01.2004, charges were framed against accused Kunwar Pal, Sanjay, Vipul, Dharamwati and Parkashwati for offence punishable under Section 323/34 IPC, in following terms: -
"That on 12.01.2003 at about 7.30 p.m. in front of House no.E-52, Gali no.2, Chand Bagh, within the jurisdiction of PS Gokalpuri, Delhi, all of you in furtherance of your common intention caused simple injuries to Satish, Sharbhati and Manish and thereby committed an offence punishable under Section 323/34 IPC and within my cognizance."
5 . On the same day, charges were also framed against accused Vipul, Kunwar Pal and Sanjay for offence punishable under Section 302/34 IPC, in following terms: -
"That on 12.01.2003 at about 7.30 p.m. in front of House no.E-52, Gali no.2, Chand Bagh, within the jurisdiction of PS Gokalpuri, Delhi, all of you in furtherance of your common intention committed murder of Sushil and thereby committed an offence punishable under Section 302/34 IPC and within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE: - 6 . Prosecution examined 22 witnesses in support of its case, as per following descriptions: -
Sl. No. & Role of witness Proved
Name of documents/
Witness case
properties
PW1/ Ct. He was posted in PS Gokalpuri Ex. PW-1/A
Sham Lal on 16.01.2003. On receipt of (true copy of
DD No. 33-A, he along with DD No. 33A
ASI Jamaluddin got conducted dated
Page 5 of 53 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000001-2003
State v. Kumar Pal etc.
SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties post mortem examination of the 16.01.2003); dead body of deceased Sushil Ex.PW-1/B Kumar, at mortury, GTB (handing over hospital. In the mortury, Sh. memo of a Satish and Sh. Ram Khilari sealed pullanda were already present. PW1 was and one more witness to preparation of sealed parcel, inquest papers by ASI which was Jamaludddin. handed over by After postmortem, PW1 was PW1 to ASI handed over a sealed pullanda Jamaluddin) & and one more sealed parcel, by Ex.PW-1/C the doctor at GTB hospital, and (handing over PW1 had handed over the same memo dated to ASI Jamaluddin, vide a 16.01.2003, memo, bearing signature of vide which PW1 at point B-1. dead body of deceased PW1 was also witness to Sushil was handing over of the dead body handed over to of deceased Sushil to his his brother brother Satish, vide a memo.
Satish).
This memo bears signature of PW1 at point C-1.
PW2/ ASI He was Duty Officer in PS Ex.PW-2/A Ravi Karan Gokalpuri on 16.01.2003 from (copy of FIR of 04:00 PM to 12:00 midnight. this case recorded by PW2 registered FIR of this case PW2 on in his handwriting, on the basis 16.01.2003) of rukka received through Insp.
Hari Charan Verma at about 06:00 PM. PW2 also recorded DD in this regard in daily diary register.
Page 6 of 53 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties PW3/ Ct. On 16.01.2003, he was posted Ex.PW-3/A & Satender at PS Gokalpuri. On that day, he Ex.PW-3/B Kumar collected copy of FIR and rukka (disclosure from Duty Officer and went to statements the place of occurrence i.e. at dated Gali No.2, Chand Bagh, Delhi, 16.01.2003 of where he found complainant accused Vipul Satish with SHO and ASI and Kumar Pal, Jamaluddin. respectively);
PW3 was witness to recording Ex.PW-3/C &
disclosure statement, recovery, Ex.PW-3/D
arrest and personal search of (seizure memos
accused Vipul and Kumar Pal, dated
taken place on 16.01.2003. 16.01.2003 of iron rods);
PW3 identified his signature at point X on disclosure statement Ex.PW-3/E & dated 16.01.2003 of aforesaid Ex.PW-3/F two accused persons, on seizure (pointing out memos of iron rod recovered at memos dated the instance of aforesaid both 16.01.2003);
accused from their respective Ex.PW-3/G &
house, on pointing out memos, Ex.PW-3/H
on their arrest and personal (arrest memos
search memos. PW3 identified dated
both recovered iron rods during 16.01.2003 of
proceedings of this case, though accused Kumar
he was unable to identify as to Pal and Vipul,
which iron rod was recovered respectively);
from which accused.
Ex.PW-3/J &
PW3 identified accused Vipul Ex.PW-3/K and Kumar Pal during (personal proceedings of this case. search memos dated 16.01.2003 of accused Kumar Page 7 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties Pal and Vipul, respectively) & Ex.P1 & Ex.P2 (two iron rods) PW4/Ct. On 12.01.2003, he was deputed Ex.PW4/A Naresh as DD writer from 04:00 PM to (true copy of Kumar 12:00 mid night. DD No.34-B dated PW4 recorded DD No.34-B in 12.01.2003) roznamcha register, on receipt of a PCR call at about 08:14 PM, regarding a quarrel going on in front of E-52, Street No.2, Chand Bagh, Petrol Pump.
PW5- W/Ct. On 05.03.2003, she was posted Ex. PW-5/A &
Anju at PS Gokalpuri. On that day, Ex.PW-5/B
Sharma she joined investigation of this (arrest memos
case and she took personal dated
search of one Renu Bala, who 06.03.2003 of
was arrested in this case. Dharam Wati
and Prakash
On 06.03.2003, she again joined Wati, investigation of this case. On respectively) that day, she along with the then SHO PS Gokalpuri/Sh. Sumer Singh and SI Sanjeev went to place of occurrence, where they met Prakash Wati, who led them to the house of Dharam Wati.
Thereafter, PW5 was given custody of accused Prakash Wati and Dharam Wati. PW5 took them to GTB hospital and got conducted their medical examination there. Thereafter, Page 8 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties she brought them to PS. PW5 was witness to arrest and personal search of accused Prakash Wati and Dharam Wati PW5 identified her signature at point A on arrest memo of accused Dharam Wati (Ex.PW5/A) and at point B on arrest memo of accused Prakash Wati (Ex.PW5/B).
PW5 identified accused Prakash Wati and Dharam Wati before the court.
PW6/ SI He deposed on the same lines as Ex.PW-6/A Sanjeev deposed by PW5 recording (arrest memo Kumar investigation conducted on dated 06.03.2003. 29.03.2003 of accused Sanjay On 29.03.2003, PW6 again @ Lalit);
joined investigation of this case.
On that day, he along with Insp.
Sumer Singh, SHO PS Gokalpuri had gone to culvert Chand Bagh, where an information was received regarding presence of accused Sanjay @ Lalit at his house.
They raided house no. E-29, Street No.2, Chand Bagh, Delhi and Sanjay @ Lalit met them.
PW6 was witness to arrest of accused Sanjay @ Lalit.
PW7/Sh. He is younger brother of deceased Sushil. He Manish narrated about incident dated 12.01.2003 and Page 9 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties death of his brother Sushil on 15.01.2003 at about 1:00 AM. He also deposed about being assaulted by accused. He identified all accused persons before the court.
PW8/Smt. She is mother of deceased Sushil. She also Sarbati narrated about the incident taken place, which resulted into death of his son Sushil. She also deposed about sustaining injuries over her head being assaulted by accused persons, in that incident.
PW9/SI On 25.03.2003, he was Ex.PW9/A Mukesh summoned by Insp. Sumer (scaled site Kumar Singh, SHO PS Gokalpuri and plan of the spot he reported there accordingly. dated Thereafter, he was taken to 24.04.2003 Street No.2, Chand Bagh, near prepared by H. No. E/2/52. PW9) PW9 prepared scaled site plan of the spot on 24.04.2003, on the basis of rough notes and measurements of the spot, on pointing out of Sh. Ram Khiladi. Thereafter, he destroyed rough notes.
PW9 identified his signature at point A on said scaled site plan.
PW10/Sh. He was complainant in the Ex.PW10/A
Satish present case. He is brother of (written
deceased Sushil. He also complaint
narrated about the incident dated
dated 12.01.2003 and death of 12.01.2003 of
his brother on 15.01.2003 at PW10);
about 01:30 AM. According to
Page 10 of 53 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000001-2003
State v. Kumar Pal etc.
SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties him, the incident of assault upon his brother Sushil took place in his presence.
On 12.01.2003, his statement
was recorded by ASI
Zamaluddin. PW10 identified
his signature at point A on it.
PW10 identified his signature at
point A on Ex.PW11/C.
PW10 identified accused
Kumar Pal, Sanjay, Vipul
Kumar, Dharam Wati and
Prakash Wati, during
proceedings of this case.
PW11/ASI On 12.01.2003, he was on Ex.PW11/A
Jamaluddin emergency duty from 08:00 PM (form 25.35
to 08:00 AM next day, at PS dated
Gokalpuri. He was assigned DD 16.01.2003
No. 34B (Ex.PW4/A) for action filled by
in the matter. PW11);
On that day, PW11 along with Ex.PW11/B &
Ct. Abdul Khalid went to Ex.PW11/C
premises No. E-52, Street No.2, (Statement of
Chand Bagh, Delhi, where he Ram Khiladi
came to know that two parties and Satish,
have clashed and injured respectively,
persons were removed to GTB recorded by
Hospital by PCR Van. PW11);
PW11 obtained MLCs of Ex.PW-11/D
Satish, Sushil, Manish, Sarbati, (request for
Renu Bala, Umarpal, Sanjay, postmortem
Vipul, Dhramwati and Prakash application
Wati. All these injured persons dated
Page 11 of 53 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000001-2003
State v. Kumar Pal etc.
SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties were opined to be fit for 16.01.2003) statement. Sushil and Satish met him in the aforesaid hospital and Sushil said that he was feeling pain and was unable to make statement.
PW11 recorded statement of complainant (Ex. PW10/A).
On 13.01.2003, at about 10:00 AM, PW11 along with Ct.
Abdul Khalid again reached the spot and found that Kumar Pal, Sanjay and Vipul were abusing Ram Khiladi and Satish etc. Preventive proceedings under Section 107 and 151 Cr.P.C.
were initiated against them.
They were brought to PS and lodged in lockup.
After death of deceased Sushil, PW11 went to GTB hospital along with Ct. Shyam Lal (PW-
1). PW11 filled form No. 25-35.
Dead body was identified by Ram Khiladi and Satish, whose statement was recorded by PW11.
PW11 got autopsy on dead body of Sushil done. After autopsy examination, dead body was released to Ram Khiladi vide memo Ex.PW1/C. PW-1/Ct. Shyam Lal had produced one sealed parcel, one Page 12 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties sealed envelop and one sample seal to PW11, which were taken into possession vide memo Ex.PW1/B. PW11 came back to PS and cloth parcels and sample seal were handed over to SHO. SHO made endorsement on the statement of complainant Sh.
Satish, on the basis of which case was registered in the present case.
During further investigation, PW11 along with PW3/Ct.
Satender went to premises No. E-52, Street No.2, Chand Bagh, Delhi, where they met complainant Sh. Satish Kumar.
PW11 apprehended accused Kumar Pal and Vipul at the instance of PW10/complainant.
PW11 deposed further on same lines as deposed by PW3/Ct.
Satender. Both accused were brought to PS and were lodged in lockup. Case property was deposited in the malkhana.
PW11 identified iron rod (Ex.P1), which was recovered from possession of accused Kumar Pal. PW11 also identified another iron rod (Ex.P2), which was recovered from the possession of accused Page 13 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties Vipul.
PW12/ Ct. On 15.01.2003, at about 07:20 PM, Duty Officer Ravinder ASI Ravi Karan had given him a special report for onward transmission to senior police officer as well as Metropolitan Magistrate of the area. In compliance of the same, PW12 went to Mukherji Nagar at the house of Sh. R.K. Sethi, the then MM, Delhi and handed over special report to him at 08:0 PM.
Thereafter, PW12 went to Satya Marg Chanakyapuri, New Delhi and handed over copy of special report to Sh. B.K. Gupta, Joint C.P. PW12 returned back to PS at about 10:00 PM. PW13/Sh. He is father of deceased Sushil. Ex.PW-13/DA Ram He also narrated the incident of (Statement of Khiladi 12.01.2003 taken place at about PW13) 07:00 PM or 07:15 PM. He also deposed about death of his son in the hospital.
PW14/HC On 12.01.2003, he was posted at PCR, North East Bharat Zone at baker 45. On that day, at around 08:10 Singh PM, he received an information on his set regarding a quarrel at E-52, Street No.2, Chand Bagh, in front of petrol pump. He immediately rushed to the informed place and found gathering of people there. Several persons had sustained injuries. He removed three persons namely Sushil, Manish and Saraswati to GTB hospital in his PCR Van and got them admitted.
PW15/ ACP On 04.03.2003, he was posted Ex.PW15/A & Sumer as SHO at PS Gokapuri, Delhi. Ex.PW15/B Singh On that day, he was assigned (personal search memos Page 14 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties further investigation of the of Dharam present case. Wati and Prakash Wati, PW15 was witness to formal respectively) & arrest and release of accused Renu Bala, in the presence of Ex.PW15/C lady Ct. Anju Sharma in PS on (personal 05.03.2003. search memo of accused On 06.03.2003, PW15 arrested Sanjay @ Lalit, accused Dharam Wati and prepared by Prakash Wati in this case vide PW15) arrest memos Ex.PW5/A and Ex.PW5/B, respective. PW15 was also witness to their personal search.
On 25.03.2003, PW15 had summoned draughtsman SI Mukesh Jain and got the scaled site plan (Ex.PW9/A) prepared at the instance of PW13/Sh.
Ram Khiladi.
On 29.03.2003, PW15 arrested accused Sanjay @ Lalit vide arrest memo (Ex.PW6/A) and conducted his personal search.
PW15 concluded investigation of the present case and chargesheeted the accused persons.
PW15 identified accused Prakash Wati, Dharam Wati and Sanjay, during proceedings of this case.
Page 15 of 53 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties PW16/ASI On 16.01.2003, he was posted as Duty Officer at Surender PS Gokalpuri from 12 mid night to 8 a.m. Pal On that day, PW16 recorded DD No. 33-A in daily diary register, on receipt of a message from GTB hospital at 02:30 AM, to the effect that an injured namely Sunil (should be Sushil), s/o. Sh. Ram Khilari, who was admitted on 12.01.2003, had died in the hospital.
PW16 brought daily diary register and identified true copy of DD No.33-A as Ex.PW1/A, in the present case.
PW17/ On 16.01.2003, she was posted Ex.PW17/A W/ASI as Duty Officer from 09:00 AM (photocopy of Sunita to 05:00 PM, at PS Gokalpuri. DD No.33-B dated On that day, PW17 recorded 16.01.2003) DD No.33-B in daily diary register, on receipt of telephonic information at 02:30 PM, from Ct. Mukesh, Duty Ct. of GTB Hospital, that Sushil, S/o. Sh.
Ram Khiladi was declared dead by the doctor, who was admitted in the hospital on 12.01.2003. She had handed over this DD to ASI Jamaluddin for further proceedings.
PW17 brought original DD No.33-B and proved photocopy of the same as Ex.PW17/A, during proceedings of this case.
PW18/ Ms. On 12.01.2003, she was posted Ex.PW18/A,
Vinita as Radiologist in GTB hospital. Ex.PW18/B &
Rathi Ex.PW18/C
Page 16 of 53 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000001-2003
State v. Kumar Pal etc.
SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties On that day, she had examined (X-ray reports X-ray plate bearing no.94 of prepared in Manish, X-ray plate bearing no. respect injured 97 of Satish and X-ray plate Manish, Satish bearing no.93 of Smt. and Saraswati, Saraswati. She prepared X-ray by PW18) report in respect of injured Manish, Satish and Saraswati, in the present case. She also identified her signature at point A on the same.
PW19/Dr. On 16.01.2003, he was posted Ex.PW19/A Gaurav as Senior Resident in the (Postmortem Vinod Jain Department of Forensic report dated Medicine, GTB Hospital. 16.01.2003 prepared by On that day, he had conducted PW19) postmortem examination over the dead body of Sushil Kumar, brought by ASI Jamaluddin and identified by Satish and Ram Khiladi. Sushil Kumar was brought to GTB Hospital on 12.01.2003 at 09:15 PM with alleged history of assault and he later on expired on 16.01.2003 at 12:30 AM.
Thereafter, PW19 conducted cross-examination on the dead body of deceased Sushil Kumar and gave his postmortem report, which bears his signature at point A. PW20/Dr. He identified handwriting and Ex.PW20/A Virendra signature of Dr. Sanjay at point (MLC of Page 17 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties Kumar A on the MLC of Saraswati Saraswati Gupta bearing no. A-74/03, dated bearing no.A-
12.01.2003, wherein Dr. Sanjay 74/03, dated had given opinion regarding the 12.01.2003); nature of injury to be simple. Ex.PW20/B There was no other doctor (opinion of Dr. available in the hospital, who Sanjay on had worked with Dr. Sanjay Ex.PW20/A); during the period of his posting.
PW21/Dr. On 12.01.2003, he was posted Ex.PW21/A P.P. Singh as CMO at GTB hospital. (MLC of Sushil bearing PW21 identified handwriting no.A-76/03 and signature of Dr. Hemant dated Hora at point A on the MLC of 12.01.2003 Sushil bearing no. A-76/03, prepared by Dr. dated 12.01.2003. Hemant Hora);
PW21 also identified Ex.PW21/B handwriting and signature of (MLC of Dr. Hemant Hora at point A and Manish bearing opinion of Dr. Chandeep Singh no.A-75/03, regarding nature of injury at dated point B to be simple, on the 12.01.2003) & MLC of Manish bearing no. A-
Ex.PW21/C 75/03, dated 12.01.2003.
(MLC of Satish
PW21 also identified bearing no.A-
handwriting and signature of 77/03, dated Dr. Hemant Hora at point A and 12.01.2003.) opinion of Dr. Pawan Kumar regarding nature of injury at point B to be simple, on the MLC of Satish bearing no. A-
77/03, dated 12.01.2003.
PW21 also identified Page 18 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties handwriting and signature of Dr. Hemant Hora at point B on Ex.PW20/A. PW21 identified their handwriting and signatures as he had seen them while signing and writing during the discharge of his official duties.
PW22/ACP On 16.01.2003, he was posted Ex.PW22/A
Sh. as SHO, PS Gokalpuri. (rukka dated
Harcharan 16.01.2003
Verma PW22 prepared rukka on the prepared by
basis of statement of Satish PW22);
Ex.PW10/A and identified his
signature at point A. He also Ex.PW22/B identified signature of PW2 at (endorsement point A, who made endorsement of PW2 on on rukka. Ex.PW22/A) Ex.PW22/C PW22 prepared site plan at the (site plan dated instance of PW10/complainant, 16.01.2003 bearing his signature at point A. prepared by PW22 identified his signature at PW22 at the point A and of accused Vipul at instance of point Y, on Ex.PW3/H and Ex. PW10) PW3/K. PW22 also identified his signature at point Y and of accused Vipul at point X, on Ex.PW3/A. PW22 also identified his signature at point A and of accused Vipul at point X on Ex.PW3/C. Page 19 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Sl. No. & Role of witness Proved Name of documents/ Witness case properties PW22 also identified his signature at point A and of accused Kunwar Pal at point X, on Ex.PW3/G, Ex.PW3/J and Ex.PW3/B and Ex.PW3/D. After arresting of Kunwar Pal, PW22 was transferred and handed over the case file to PW15/SHO PS Gokalpuri.
During proceedings of this case, PW22 identified iron rod (Ex.P-
1), to be the same which was recovered from the possession of accused Kunwar Pal. He also identified another iron rod (Ex.P-2), to be the same which was recovered from the possession of accused Vipul.
PW22 identified his signature at point A on Ex.PW3/E and Ex.PW3/F. He also identified signature of accused Vipul at point X on Ex. PW3/E and of accused Kunwar Pal at point X on Ex.PW3/F. PLEA OF ACCUSED PERSONS UNDER SECTION 313 CR.P.C. 7 . In his statement, accused Kumar Pal admitted the fact that he came to know about the altercation between Vipul and deceased Sushil, later. He took plea that he was present in PS and there he Page 20 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 was put into lock-up. He further took plea that it is a false case and he has been falsely implicated in the present case. Despite opportunity given, he did not opt to lead any evidence in his defence.
8 . In his statement, accused Vipul admitted the fact that proceedings under Section 107/151 Cr.P.C. were initiated against him and denied that he had abused Ram Khiladi, Satish etc. Accused Vipul took plea that he owed Rs.20,000/- to the deceased. He further took plea that he was falsely implicated as he could not pay the said amount. He further took plea that Ram Khiladi and his family members had come to house of Kumar Pal on the day of incident to search him. His house was not in the same lane, but he reached there on hearing the rucus. On seeing him, Ram Khiladi and his family members, who were accused in cross case, beat him. He further took plea that daughters of Ram Khiladi threw bricks from the terrace and he received injuries on his head and shoulders and was taken to the hospital by the PCR. Accused Vipul opted to lead evidence in his defence. 9 . In her statement, accused Prakashwati took plea that she is innocent and has been falsely implicated in this case by the police in connivance with complainant party. She further took plea that she was falsely arrested in this case. She further took plea that on 12.01.2003, she was present in her house along with her husband. Her son Sanjay, daughter Renu Bala and her niece Dharamwati were taking meal at about 07:00 PM. She further took plea that Ram Khiladi along with his family members had forcibly entered in her house with lathi, danda and iron rods and Page 21 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 they attacked upon her and her other family members. She further took plea that she and her other family members had received head injuries on the hand. Thereafter, police had come and taken them to the hospital for medical treatment, where the concerned doctors had prepared their MLCs/medical papers. Thereafter, they returned back to their house. Accused Prakashwati further took plea that the allegations levelled by the witnesses are false and vague. She further took plea that she was not present at the spot at the time of alleged incident and she had not participated in the alleged crime. The police has registered a cross case against Ram Khiladi and his family members under Section 308/34 IPC. She opted to lead evidence in her defence. 10 . In their statement, accused Sanjay and Dharamwati took plea that they are innocent and have been falsely implicated in the present case. They further took plea that they went to PS from where they were arrested by the police. They opted to lead evidence in their defence.
DEFENCE EVIDENCE 11 . Accused Vipul examined SI Kusum Lata as DW-1 and Sh. Devender Yadav as DW-2, in his defence. During her testimony, DW-1/SI Kusum Lata deposed that on 10.03.2004, she was working as Duty Officer at PS Gokalpuri from 08:00 AM to 04:00 PM. On that day, she recorded FIR No.101/2004, under Section 308/452/323/506/147/148/149/34 IPC, on the basis of rukka on the complaint of Kunwar Pal, brought by SI Sharif Ahmed. After registration of FIR, DW-1 sent rukka and copy of FIR to SI Sharif Ahmed for investigation. She proved copy of Page 22 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 FIR as Ex.DW-1/A. During his testimony, DW-2/ Sh. Devender Yadav deposed that he had brought MLC register of GTB hospital pertaining to MLC No. B-92/03. As per this MLC, injured Vipul Kumar was medically examined at GTB hospital. He proved photocopy of MLC as Ex.DW-2/A. ARGUMENTS 12 . Ld. counsel for accused Kumar Pal, Prakashwati, Sanjay @ Lalit and Dharamwati argued that accused Kumar Pal and Sanjay did not share any common intention with accused Vipul. He further referred to the testimony of PW-10 to point out that prior to incident, they had cordial relations with accused Kumar Pal. He argued that what went through mind of Vipul, accused Kumar Pal and Sanjay were not privy to the same. It was further argued that only one injury was mentioned in the MLC of Sushil, though postmortem report mentioned other injuries also and it should have been explained by prosecution, if other injuries were also sustained at the same time.
13 . Ld. counsel for accused Vipul argued that in MLC Ex.PW 21/A, only one injury was mentioned i.e. laceration 1 cm x .5 cm over left upper eye lid and there was no other injury on the person of Sushil Kumar. There was no history of bleeding from any part of body. He argued that death of deceased was caused after about 103 hours of the alleged incident (more than 4 days), which shows that the injuries were not grave in nature or otherwise it would have resulted into death of deceased soon after incident. He further argued that prosecution failed to prove any strong motive on the part of accused Vipul to commit the alleged Page 23 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 murder of deceased Sushil Kumar. He also argued that version of PWs with regard of giving saria/iron rod blow by accused Vipul on the head of deceased, is highly doubtful as there is no mention in MLC of deceased of his having any head injury on the night of his medical examination on 12.01.2003. He further argued that Rod Ex.P1, allegedly recovered from accused Vipul was never produced before PW-19 Dr.Gaurav Vinod Jain, who conducted postmortem for getting his opinion about weapon of offence. He further argued that there was delay in lodging the FIR as the FIR in this case was registered on 16.01.2003 at 6.10 p.m., while the incident occurred on 12.01.2003 at 7.00 p.m, which creates grave doubt in prosecution case. He also argued that place of incident was inhabited by 15 houses on both sides of the lane outside house of Ram Khiladi and accused Kumar Pal and number of neighbors were present at the spot and witnessed the incident, but PW-7, PW-8, PW-10 and PW-13 did not name them before the police and even PW-22 ACP Harcharan did not bother to examine those neighbors, which also creates doubt in prosecution case. He further argued that site plan Ex.PW 22/C, allegedly prepared at the instance of PW-10 Satish Kumar, is unreliable piece of evidence, as position of deceased as well as accused persons at the time of occurrence, is not shown in the site plan. 14 . Ld. counsel for accused Kumar Pal relied upon certain judgments, which are as under: -
14.1 Ramjilal, Deviram and Hotilal v. State of Rajasthan, 1991 WLN UC 331.
14.2 Haider Ali v. State (Delhi), 2015 [4] JCC 2479.Page 24 of 53 (Pulastya Pramachala)
ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 15 . Ld. counsel for accused Vipul Kumar relied upon certain judgments, which are as under: -
15.1 Arvind Kumar @ Nemichand & Ors. v. State of Rajasthan, Crl.Appeal no.753/17, decided by Supreme Court on 22.11.2021.
15.2 Viram @ Virma v. The State of Madhya Pradesh, Crl.Appeal no.31-32 of 2019, decided by Supreme Court on 23.11.2021.
15.3 Gurmukh Singh v. State of Haryana, Crl.Appeal no.1609/09, decided by Supreme Court of India on 25.08.2009.
15.4 Man Preet Singh & Anr. v. State, 2004 (72) DRJ 28 (DB).
15.5 Manmohan Singh v. The State (GNCT of Delhi), Crl.Appeal no.448/11, decided by High Court of Delhi on 26.04.2012.
15.6 Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC
501. 15.7 Kishan Singh (D) through L.Rs. v. Gurpal Singh & Ors., Crl.Appeal no.1500/10, decided by Supreme Court of India on 12.08.2010.
15.8 Devinder v. State of Haryana, 1997 SCC (Cri) 570. 15.9 Lakshmi Singh & Ors. v. State of Bihar, (1976) 4 SCC
394. 15.10 Babu Ram & Ors. v. State of Punjab, (2008) 3 SCC
709. 15.11 Ravishewar Manjhi & Ors. v. State of Jharkhand, (2008) 16 SCC 561.
15.12 Saleem @ Gama & Anr. v. The State (NCT of Delhi), Crl.Appeal no.443/03, decided by High Court of Delhi on 19.11.2018.
16 . Per contra, Sh. Masood Ahmed, ld. Addl. PP for State argued that prosecution has proved its case against all accused. He submitted that it is well proved that accused Kumar Pal, Vipul and Sanjay came together being armed with iron rods and hockey stick. They Page 25 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 assaulted all accused persons including Sushil and Sushil died of injury received in this assault. Other accused also assaulted PW8, PW9, PW10 and PW13 and caused simple injuries to them. Hence, all accused are liable to be convicted. APPRECIATION OF LAW, FACTS AND EVIDENCE INCIDENT & PLACE OF INCIDENT 17 . The incident in question took place on 12.01.2003 at about 07:00-07:30 PM. There is no dispute over this fact even from the side of defence, because the defence has also taken plea of injury being sustained by the accused persons on same day and at about same time at the hands of complainant and his family members. It would be sufficient to refer to an FIR proved by defence as Ex. DW-1/A bearing no. 101/2004, PS Gokalpuri. This FIR was lodged by accused Kumar Pal and even in this FIR he referred to same date and time. The only dispute between prosecution and defence is in respect of place of incident and the nature of incident.
18 . According to prosecution, complainant/PW10 Sh. Satish was the person who, along with his brother deceased Sushil, was present in front of his home/shop bearing property no.E/52, Street No.2, Chand Bagh, Gokulpuri, Delhi, when accused Kumar Pal, Vipul and Sanjay reached there. This was the place in the gali in front of house of the complainant. On behalf of prosecution, PW7, PW8, PW10 and PW13 were examined to establish the place of incident as well as nature of incident. The prime witness being PW10, I shall refer to his testimony first. According to PW10, Sushil had come back to home at about 7 PM and he was Page 26 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 frightened at that time. Sushil told his family members and primarily Satish that he had an altercation with accused Vipul at Bhajanpura Chowk, Delhi. They were in the process of deciding further course of action including option to inform police, when accused Kumar Pal, Vipul and Sanjay came in front of their home equipped with iron rod and hockey stick and started assaulting Sushil and PW10. PW10 raised alarm for help and then his other family members i.e. PW7/Manish, PW8/Sarbati and PW13/Ram Khiladi also came out of their home. They all resisted the assault of accused persons and in the meantime aforesaid accused persons were also joined by their family members i.e. Prakashwati, Renu Bala and Dharamwati. Testimony of above mentioned other PWs i.e. family members of complainant also reflect the same situation in respect of nature of incident and the place of incident. Thus, the place of incident according to these witnesses was in the gali in front and near the house of complainant. It is admitted fact that accused Kumar Pal also resided with his family in the same gali and his house was situated on the opposite side of house of the complainant after two houses. Site plan Ex.PW9/A is undisputed piece of evidence in this respect. It is also undisputed fact that accused Vipul was residing in the same locality, but in a different street/lane/gali. 19 . On the other hand, as per suggestions given by defence during cross examination of aforesaid PWs and the case set up by the defence on the basis of FIR Ex. DW-1/A, PWs Manish, Sarwati, Satish, Ram Khiladi and their relative Navesh came into the house of Kumar Pal being armed with lathi, iron rod and danda Page 27 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 and they assaulted Kumar Pal and his family members with the respective weapons. Manish, Sarwati, Satish, Ram Khiladi and their relative Navesh went out of the home of Kumar Pal in the gali, while threatening the Kumar Pal and his family members. Three daughters of Ram Khiladi namely Premlata, Pushpa and Hemlata were pelting stones and big bricks from their terrace and Ram Khiladi and his family members sustained injuries due to pelting stones and bricks by Premlata, Pushpa and Hemlata in the process of going back to their home. Defence also took plea that there was heavy fog on that day and there was no light at the time of this incident and therefore, it could not be said that who received injuries and on what part of body such injuries were received by the family members of Ram Khiladi. According to this defence, even deceased Sushil was injured due to stone and brick pelting by his own aforesaid sisters in the gali/street. Thus, according to defence the place of incident for causing injuries upon accused persons herein was inside the house of accused Kumar Pal and the place of incident for sustaining injuries by complainant Satish and his family members including deceased Sushil, was in the street. But the nature of incident was altogether different and the complainant herein and his family members sustained injuries because of pelting of stones and bricks by Premlata, Pushpa and Hemlata i.e. sisters of complainant herein. 20 . Thus, as far as place of incident in respect of infliction of injuries upon complainant herein and his family members, is concerned, once again I find that there remains no dispute between prosecution and defence that such injuries were sustained in the Page 28 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 street/gali, wherein complainant as well as accused Kumar Pal both resided with their respective family i.e. gali no.2. 21 . Now, the dispute requiring resolution remains in respect of nature of incident, meaning thereby to ascertain as to how did the complainant and his family members including deceased Sushil sustain injuries? I have already referred to the respective plea taken by complainant party and the defence in this case, regarding nature of incident. Defence gave suggestions to complainant and his family members that a counter case was registered against them for assaulting accused persons herein and that complainant and his family members were accused in that case i.e. FIR no. 101 0f 2004. It is, however, to be seen that just because complainant and injured herein are accused in the counter case, will their evidence in this case suffer from disability on account of existence of a counter case? In the case of Raj Kishor Jha v. State of Bihar, (2003) 11 SCC 519, dealing with this question, Supreme Court made following observations-
"10. A bare perusal of the judgment of the High Court shows that it has disposed of the appeal in a rather casual manner. Most of the conclusions arrived at by the High Court are per se not on sound footing. The appellate court will not abjure its duty to prevent miscarriage of justice by not interfering where interference is imperative. Where doubt is based on irrelevant grounds or where the court allows itself to be deflected by red herrings drawn across the track, or where the evidence accepted by the trial court is rejected by the High Court after a perfunctory consideration or where the baneful approach of the court has resulted in vital and crucial evidence being Page 29 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 ignored or for any such adequate reason, the court should feel obliged to secure the ends of justice, to appease the judicial conscience, as it were. The High Court has noted that the names of witnesses do not appear in the first information report. That by itself cannot be a ground to doubt their evidence as noted by this Court in Bhagwan Singh v. State of M.P. [(2002) 4 SCC 85 : 2002 SCC (Cri) 736 : JT (2002) 3 SC 387] , Chittar Lal v. State of Rajasthan [(2003) 6 SCC 397 : 2003 SCC (Cri) 1377 : 2003 AIR SCW 3466] and State of M.P. v. Man Singh [(2003) 10 SCC 414 :
(2003) 6 Supreme 202] . There is no requirement of mentioning the names of all the witnesses in the first information report. No reason has also been indicated by the High Court as to why the evidence of PWs 3, 8, 11, 12 and 15 was to be obliterated merely because they were accused in the counter-case. In a case of this nature, when a counter-case has been registered, the court hearing the same has to scrutinize the evidence in greater detail and even in such a situation the evidence which is cogent, credible and trustworthy cannot be totally wiped out because of the only circumstance that they were accused in the counter-case."
The above-mentioned observations make it amply clear that the evidence of complainant and his family members and defence have to be analysed on the parameters of credibility and reliability.
22 . From the side of prosecution, the first evidence in respect of above-mentioned question, appears in the form of complaint Ex.PW10/A, which was made by PW10 before ASI Jamaluddin/PW11. PW10 and PW11 both testified about making inquiry about the incident from PW10 by PW11. PW10 deposed that he was interrogated by Jamaluddin and his signature was obtained by him, but PW10 was not aware about the contents of Page 30 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 that document. He further deposed that at that time his brother Sushil was taken in the operation theater by the doctor. He identified his signature on the complaint Ex.PW10/A and also deposed that he was illiterate, therefore, he was unable to say as to what was written therein. On the other hand, PW11 also deposed that he met Sushil and Satish in the hospital. He had already obtained MLCs of the injured persons. All of them were opined to be fit for statement. However, Sushil told him that he was having pain and was unable to make a statement. Therefore, he recorded statement of Satish/PW10, which Ex.PW10/A. 23 . Defence has assailed the given timing of recording of this statement i.e. Ex.PW10/A. It was argued by ld. defence counsel that other family members of PW10 did not depose about PW10 being examined by PW11 in the hospital. In this respect, it is worth to mention here that the complainant as well as his family members were not literate and very mature person in respect of police proceedings. That is why it has come in the testimony of PW10 that he was interrogated by Jamaluddin and his signature was obtained by him, but PW10 was not aware of the contents of that document. However, he identified his signature on Ex.PW10/A. PW11 on the other hand gave a reason for not recording statement of Sushil and deposed that in that situation he recorded statement of Satish. But further action was not taken as the opinion regarding nature of injuries was not available and same was kept under observation by the doctors and this was the reason for not registering the case. He denied the suggestion that statement of Satish Ex.PW10/A was recorded on 16.01.2003. I do Page 31 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 not find anything awkward in the recording statement of Satish instead of Sushil by PW11. It is undisputed fact that Sushil was admitted in the hospital because of head injury and even though he had regained his conscious in the hospital, but it is not improbable situation that out of pain he would not have been in very fit condition to speak much or to narrate the whole incident to anyone. Since, Satish was already present there, therefore, it was not a bad choice for PW11 to record his statement. It is also required to be appreciated that after being assaulted and Sushil being admitted in the hospital because of head injury, the other family members of the complainant i.e. his brother Manish, his mother Sarwati and his father Ram Khiladi would have been in a mental state of shock and panic. Therefore, even if they did not notice the inquiry being made by PW11 from PW10 or were not aware that PW11 was recording the facts being disclosed by PW10, it cannot be said that such statement was neither made by PW10 nor recorded by PW11 in the hospital on 12.01.2003 itself. PW10 was not confronted with the whole contents of Ex.PW10/A. He was confronted with this statement in respect of the some facts deposed by him i.e. PW10 questioned accused persons as to why they were assaulting Sushil, but accused persons did not speak a single word. He was further confronted with this statement in respect of fact deposed by him that his father reached there on his call and at that juncture three accused i.e. Kumar Pal, Vipul and Sanjay assaulted his father also, who sustained injuries. In the complaint Ex.PW10/A, it is recorded that the moment PW10 and Sushil came out of their door, Vipul, Page 32 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 Kumar Pal and Sanjay confronted them with iron rod in the hands of Kumar Pal and Vipul and hockey stick in the hands of Sanjay. Vipul told Sushil that Sushil used to make comments in respect of his wife and therefore, he would have to pay for the same along with his family. After saying so, Vipul hit Sushil on his head with iron rod and Sushil fell down on the ground. Kumar Pal hit Satish on his head and hand and on his raising alarm, Manish, Sarwati and Ram Khiladi also came there to rescue them. In the meantime, Prakashwati, Renu and Dharamwati also joined the accused persons, all equipped with danda. Sanjay assaulted Manish on his head and hand with his hockey stick. Prakashwati, Renu bala and Dharamwati assaulted Sarwati, due to which Sarwati sustained injuries on her head and hands. In this process Vipul, Kumar Pal, Sanjay, Renu Bala, Prakashwati and Dharamwati also received some injuries. Father of PW10 namely Ram Khiladi made call to the police and police vehicle took Sushil and others to GTB hospital. 24 . From aforesaid contents of PW10/A, it does appear that PW11 had not recorded a detailed statement regarding each and every happening during this incident. When a police official records statement /complaint of a victim, it is very much natural that he keeps applying his mind to record such facts which the police official finds to be more relevant and important. Therefore, it is not unusual scenario, if a victim though gives detail account of facts before police, but at first instance of reporting of a crime, police official records a filtered statement, thereby eschewing the minor details (as per his conception of importance). Therefore, I Page 33 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 do not find any case of contradiction in the statement made by PW10 before the court and the contents of Ex.PW10/A. On the basis of all these facts and circumstances, I have no hesitation to accept the fact that the statement recorded in Ex.PW10/A was made by PW10 before PW11 in the night of 12.01.2003 at GTB hospital itself.
25 . Ld. defence counsel also argued that FIR was registered belatedly and the delay was not explained. In this regard ld. defence counsel for Vipul relied upon judgments passed in the cases of Manmohan Singh (supra), Thulia Kali (supra) and Kishan Singh (supra). In all these cases courts emphasized for due explanation of delay in registration of the case. In this case, incident took place on 12.01.2003 and Sushil died in the intervening night of 15/16.01.2003. Though, PW11 had recorded the statement Ex.PW10/A, but FIR was not registered on 12.01.2003. It was registered on 16.01.2003. This situation has given rise to aforesaid contentions of the defence. In this respect, PW11 deposed that he did not lodge case because injured persons were under observation and nature of their injuries was not opined. He also said that SHO had asked to keep the matter pending. Thus, it is very clear that it was a decision taken by police to keep the matter pending and await for the opinion on the injury sustained by the injured persons. Next day, admittedly PW11 booked accused Kumar Pal, Vipul and Sanjay under Section 107/151 Cr.P.C. The complainant herein did not have any role behind such decision of the police. Therefore, complainant cannot be held responsible for delay in the registration of FIR. Police herein Page 34 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 might have acted bonafidely to await for opinion on injury or it was a case of reluctance to register FIR and to hush up the matter. For the second situation, injured and complainant herein were themselves victim of inaction on the part of police. Ideally FIR should have been registered on 12.01.2003 itself on the basis of Ex. PW10/A. It appears that police were interested to hush up the matter and for satisfying the aspirations of complainant party herein, they showed arrest of accused Kumar Pal, Vipul and Sanjay, by booking them under Section 107/151 Cr.P.C. But, when Sushil died in the early hours of 16.01.2003, then police did not have much option and they became compelled to register this case. However, as already said herein before, for such inaction of police complainant party was not responsible and therefore, for this reason this case cannot be thrown away. 26 . Now the question is that what was the exact nature of the incident? Whether deceased Sushil, PW7, PW8, PW10 & PW13 sustained injuries due to pelting of stones by their own family members i.e. three sisters of PW10, or they sustained such injuries on account of assault by the accused persons. The first piece of evidence i.e. Ex.PW10/A read with statement of complainant and his family members show that they received injuries on account of assault by the accused persons. The next piece of evidence i.e. MLCs Ex.PW21/A (Sushil), Ex.PW21/B (Manish), Ex.21/C (Satish) and Ex.20/A (Sarwati) also mention the alleged history of assault. It is also worth to mention here that even as per contention of defence, all injured including complainant party herein were taken to GTB hospital by PCR Page 35 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 officials after the incident. The complainant party were medically examined from 08:50 PM till 10:05 PM. Satish was the last one as per the MLCs. The complainant party i.e. Sarwati, Sushil and Manish were brought to the hospital by HC Bharat Singh by PCR van, while Satish had come to the hospital on his own. This much description also confirms the correctness of fact deposed by PW10 and his family members that PCR official had taken away Manish, Sarwati and Sushil, while Satish and Ram Khiladi had reached hospital subsequently on their own. Now as per nature of injuries mentioned in the MLCs of these injured persons from the complainant side, I find that at least some injuries as recorded in respect of Sarwati (abrasion on the back of right hand); injury recorded for Manish (swelling on palm of left hand); injury recorded for Satish (swelling on left elbow) are not consistent with the theory projected by the defence, that these injured persons from complainant party sustained all the injuries due to pelting of stones and bricks from the terrace of the house of complainant by three sisters including one physically disabled sister of the complainant. It is difficult to assume that if actually pelting of stone and brick was there from the terrace of house, same would hit a person so as to cause aforesaid kind of injuries. The next question over this proposed theory of defence is based upon probability and natural course of action of a person in such situation. According to defence, there was heavy fog and no electricity and the sisters of PW10 were pelting stones and bricks from the terrace, even without caring that such stones and bricks were hitting their own family members. According to the Page 36 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 defence, Kumar Pal and his family members were inside their home and Vipul had subsequently come into that gali. In that situation if Kumar Pal and his family members had not come out of their home in the gali, it did not make any sense for the three sisters of the complainant herein to start pelting stones and bricks from their terrace. I say so because, unless these three sisters would have seen the accused persons in the gali, there was no occasion for them at all to pelt stones and bricks. They would have obviously not wanted to pelt stones and bricks on their own family members. Secondly, if actually they would have been pelting stones and bricks from their terrace, the same could not have been thrown up to the house of Kumar Pal in forceful manner, because of the distance between the house of complainant and the house of Kumar Pal. In that situation, throwing big bricks, so as to cause the kind of injury as received by Sushil on his head, up to such a distance was not possible. Thirdly, if at all such pelting of stone was there, complainant and his family members would have immediately shouted to these three girls to stop pelting stones as it were they who were being hit. For aforesaid reasons, I cannot believe upon such theory projected by defence, thereby justifying and showing cause of injury on the person of complainant party herein. 27 . Ld. defence counsel referred to cross-examination of PW10, wherein he deposed that police official seized brick bats from in front of the house of Kumar Pal as well as from his own house. It was argued that such statement supports the plea taken by defence. However, on the record, police did not file any seizure Page 37 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 memo about such brick bats, nor did the defence say anything to PW11 in this regard. As far as other IOs i.e. PW15/ACP Sumer Singh and PW22/ACP Harcharan Verma are concerned, admittedly they came into picture only after death of Sushil on 16.01.2003. It cannot be reasonably expected that the brick bats, if at all used in the case, would be lying in the street for such a long time without any interference by the passersby and other residents of that street, for their seizure by police subsequently. Therefore, if there was any possibility to seize any such brick bat from the street, it was to be done by PW11 only. PW11 did not do so at all and defence also did not challenge him on this aspect. Therefore, I have no hesitation to conclude that deceased Sushil as well as injured persons in this case from the family of complainant, sustained injuries on account of assault by the accused persons rather than pelting of stones and bricks. 28 . Defence argued that none of the PWs explained the reasons for injuries sustained by accused persons and therefore, their version is liable to be rejected. There is no doubt to the fact that accused Kumar Pal, Prakashwati, Dharamwati and Renu Bala and Sanjay were also taken to GTB hospital by PCR van. However, contrary to suggestions put by the defence to the complainant party during cross examination, they were not brought to the hospital by same PCR van, which carried injured in this case. On the record, defence placed certified copy of the testimony of doctor recorded in the counter case along with MLCs of accused persons herein. This case was lodged at the instance of accused Kumar Pal bearing FIR No.101/04. It is matter of record that same case was Page 38 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 also heard by this court and is also pending for decision along with this case. The certified copy of MLCs of aforesaid accused persons make it amply clear that they were brought to GTB hospital by HC Kishan Pal from a different PCR bearing baker no.37. The MLC of accused Vipul shows that he was not brought by the PCR official, rather he reached hospital on his own and was examined accordingly. All these accused persons are also shown to be having injuries on their bodies in their respective MLCs i.e. Ex. DW-2/A and other MLCs.
29 . Ld. defence counsel for Vipul relied upon judgments passed in the cases of Arvind Kumar (supra), Lakshmi Singh (supra), Babu Ram (supra), and referred to the observations made by the courts, wherein hon'ble courts dealt with the non-explanation of injuries sustained by the accused in the case. In the case of Arvind Kumar (supra), hon'ble court referred to the observations made by same court in the case of Lakshmi Singh (supra), which also dealt with the effect of suppression of injuries suffered by the accused. In that case Supreme Court made following observations, which are relevant for us in this case: -
"12. ......It seems to us that in a murder case, the non- explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
"(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is Page 39 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."
30 . As far as present case is concerned, in the initial statement/ complaint Ex.PW10/A, PW10 had mentioned that accused persons also sustained injuries, when his family members intervened to rescue. However, in their testimony before the court, PW10 and his family members did not vouch for accused persons also getting injured in the same incident. The question is that whether this situation would have such an effect to discard their testimony and other evidence to show the cause of injuries upon the bodies of Sushil and complainant as well as his other family members? The observations made by Supreme Court in the case of Lakshmi Singh (supra) mentioned that such omission on the part of prosecution assumes greater importance, where the defence gives a version which competes in probability with that of the prosecution one. However, in the same judgment the court also referred to observations made by same court in the case of State of Gujarat v. Bai Fatima (1975) 2 SCC 7, wherein the court observed that "there may be cases where the non- explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases Page 40 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the the injuries." 31 . I have already examined and analysed the evidence on the record from both the sides and I have also examined the probability of factual matrix presented by defence herein, in foregoing paragraphs. On the basis of appreciation of over all evidence on the record, I have concluded that the plea taken by the defence in respect of cause of injuries on the bodies of complainant and his family members, cannot be probable at all, rather from the evidence and surrounding circumstances, I am convinced that the complainant and his family members received injuries on account of the assault by the accused persons in this case. The appreciation of evidence and decision in a case depends upon peculiar nature of facts and defence in that case and therefore, the observations made by Supreme Court in above said cases, do not have application in the facts and circumstances of the present case. One basic psychology of a person cannot be ignored which prompt that person to safeguard from incriminating himself. Therefore, complainant and his family members could not be expected to incriminate themselves by vouching for the injuries sustained by the accused persons in the same incident. Moreover, finally another FIR bearing no. 101/2004, did come into existence, wherein this court will be examining the cause of injuries upon the accused persons. Therefore, I do not find any Page 41 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 reason to discard the consistent and reliable part of evidence in this case, in order to find the cause of injuries sustained by the complainant and his family members, which has already been ascertained as mentioned herein above. 32 . Ld. defence counsel also referred to the judgments passed in the cases of Ravishwar Manjhi (supra), for same purpose, but it must be seen that the court was dealing with the plea of private defence of the accused persons in this case as well as in the case of Lakshmi Singh (supra). This is not the case of defence herein that complainant party in this case suffered injuries because accused persons acted in their private defence. Hence, these cases do not help the defence in this case.
NATURE OF INJURIES AND ROLE OF ACCUSED PERSONS INJURY ON DECEASED SUSHIL 33 . As per case of prosecution and evidence of complainant party, PW7/Manish, PW8/Sarbati and PW13/Ram Khiladi, had joined PW10 and Sushil subsequently. Therefore, I shall first refer to the testimony of PW10. According to PW10, Sushil was assaulted by Kumar Pal, Vipul and Sanjay with their respective weapons i.e. iorn rod and hockey stick. In his complaint, Ex.PW10/A, however, PW10 had stated before PW11 that Vipul had hit Sushil on his head with an iron rod, due to which Sushil fell down on the ground, while Kumar Pal hit him on his head and hand with an iron rod and he raised alarm accordingly. Before the court, thus, PW10 did not repeat the same thing as stated in Ex.PW10/A regarding Sushil being hit by Vipul. He also deposed before the Page 42 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 court that when he raised alarm for help, his brother was lying on the ground. In his cross-examination, PW10 though reiterated that he had told police that Sushil had told him about the incident of grappling between him and Vipul at Bhajanpura Chowk. He was confronted with his statement Ex.PW10/A, but the only difference between this statement and contents of Ex.PW10/A is that the word 'grappling' was not mentioned in Ex.PW10/A. PW10 denied the suggestion that Sushil was not frightened or that Sushil did not tell him about incident of grappling. He again reiterated that Sushil had fallen down on the ground till arrival of PCR van. He also deposed that he did not see any bleeding on the person of Sushil.
34 . The courts have well recognized the tendency of victim of a crime to improvise his statement against the accused persons. The courts have also recognized the principle of shifting the chaff from the grain. In the case of Arvind Kumar (supra) itself, the court observed as under-
"48. The principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country. The principle governing shifting the chaff from the grain has to be applied. However, when the evidence is inseparable and such an attempt would either be impossible or would make the evidence unacceptable, the natural consequence would be one of avoidance. The said principle has not assumed the status of law but continues only as a rule of caution. One has to see the nature of discrepancy in a given case. When the discrepancies are very material shaking the very credibility of the witness leading to a conclusion in the mind of the court that it is neither possible to separate it nor to rely upon, it is for the said court to either accept or reject."Page 43 of 53 (Pulastya Pramachala)
ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 35 . If I compare two statements of PW10, one from his statement Ex.PW10/A and another from the testimony before the court, the only difference between them relates to role of accused persons. In the court, PW10 projected as if Kumar Pal, Vipul and Sanjay, all three of them assaulted Sushil with their respective weapon. Though, in his statement Ex.PW10/A, it was shown that only Vipul had hit on the head of Sushil with iron rod, due to which he fell down on the ground. In this statement, PW10 did not include Kumar Pal and Sanjay for assaulting Sushil. If I look into the MLC of Sushil, then I find that unlike MLCs of other injured persons in this case, doctor noticed only one injury on the body of Sushil and that was in the form of laceration 1 cm x 0.5 cm on left upper eyelid. On the other hand, the postmortem report and testimony of PW19/Dr. Gaurav Vinod Jain referred to four brownish scabbed abrasions over middle of forehead, outer side of left eyebrow, right side of nasal bridge and middle of back of right hand. There is also mention of bluish bruises on the left side of head and on the lower back of the head. These injuries were apparently not mentioned in the MLC and the same gave a reason to defence to argue that prosecution has not explained the reason behind such omission in the MLC or such discrepancy appearing in two different documents. It is true that prosecution did not come up with any explanation behind such discrepancy. This situation basically refers to sluggish approach of the prosecution. However, at the same time I find that during cross-examination of PW19, though his attention was taken to the MLC of Sushil, but even defence did not seek any clarification from him Page 44 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 regarding possible reasons for such discrepancies. May be the defence was guided by the thought that it was duty of the prosecution only. The doctor who had actually prepared the MLC of Sushil i.e. Dr. Hemant Hora, had left the hospital and a different doctor came to the court to identify his handwriting and signature and to prove the MLCs. Therefore, occasion did not arise to seek any clarification regarding external injuries found on the body of Sushil. But keeping in view the nature of these external injuries reported in postmortem report Ex.PW19/A, I do not find much significance attached with omission of the same in the MLC Ex.PW21/A. The material thing is that in the internal injuries PW19 reported about quadrangular defect in right temporo parietal area with four surgical holes and a fissured fracture running from vertex to right temporal area and over running the quadrangular defect in the middle. PW19 reported that this appearance indicated towards possibility of a depressed fracture at the site. This internal injury over the head of Sushil points out to the statement made by PW10 in Ex.PW10/A regarding hitting on head of Sushil by an iron rod. Ld. defence counsel argued that there was no bleeding from head, which was not a possible scenario. Ld. defence counsel also referred to observations made by Supreme Court in the case of Viram (supra), to submit that there is contradiction in respect of MLC of deceased Sushil and the post mortem report regarding the kind and number of injuries sustained by Sushil. In this case, Supreme Court discarded oral evidence on the basis of medical evidence. 36 . However, I am not in agreement with the first argument, because Page 45 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 there cannot be a hard and fast rule that there must be bleeding in all the circumstances. Moreover, PW19 also reported in PM report that dark coloured Hematomas were also found underneath the duramater on both the sides of the brain and bleeding was there in the right middle ear. Such description shows that instead of external bleeding, there was internal bleeding in the brain of Sushil and reason thereof is not a difficult question to guess. Thus, the description of injury mentioned in the postmortem report regarding internal injury in the head of Sushil read with unexplained reasons for other external injuries found on the body of Sushil, lead me to conclude that Sushil was hit with iron rod on his head with such great force that it did cause internal injuries in the form of fracture and this blow of iron rod is attributable to accused Vipul only. 37 . Ld. defence counsel for Vipul also relied upon the judgment passed in the case of Man Preet Singh (supra), to argue that weapon of the offence was not sent to the doctor for his opinion if the injury to Sushil could be inflicted by such weapon. However, I find that facts of that case were completely different in as much as the injury was inflicted by a double-edged weapon but police had shown recovery of a different kind of weapon. In the present case, facts are altogether different. Herein, there is credible evidence to show that injury was given by an iron rod. Though, prosecution has shown recovery of iron rods at the instance of accused Kumar Pal and Vipul, but I deliberately did not discuss that evidence. The reason is that in this case, there could not be any concrete basis to show that a particular iron Page 46 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 rod/saria was actually used for hitting Sushil. Even defence suggested that there could be same kind of irod rod/saria available in the market. Saria is such an article which is mostly identical. Therefore, one cannot be sure if the saria recovered by the police in the case, was the same saria which was used in the commission of the offence. PW19 did give opinion that injury on the head of Sushil could be caused by blunt force. This remains matter of common sense and knowledge that iron rod/saria is that kind of weapon, which produces blunt force. Had it been a case of inflicting sharp or incised wounds, then opinion of doctor would have been required to state if injury as per its edges, nature, depth etc. could be caused by the weapon, as produced by the prosecution. In the present case, there could not be any confusion that head injury to Sushil could be caused by a saria. Hence, absence of this specific opinion does not create any dent in this case.
INJURIES UPON PW7, PW8, PW10 & PW13 38 . On perusal of testimonies given before the court by aforesaid injured persons, I find that PW13/Ram Khiladi did not give any specific account of role of different accused persons. Rather he talked about all the accused persons coming at his home and attacking on his family members. PW8/Sarwati appears to have made some statement regarding role of the accused persons regarding injuries to all injured persons. PW7 and PW10 talked about accused Kumar Pal, Vipul and Sanjay in respect of assault upon PW7, PW10 and PW13. PW7 mentioned that he had seen Prakashwati and Dharamwati reaching their place after some Page 47 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 time and he did not see as to who was assaulting his brother Satish and Sushil, but he also said that all accused persons were grappling and assaulting his brothers. In respect of himself, he could not tell as to which particular person hit him over his head, though he was hit with hockey stick. PW10 deposed that after hitting Sushil, three accused namely Kumar Pal, Vipul and Sanjay assaulted him and when his father reached there, they assaulted his father also. Thereafter, his father went inside the home and made call to the police. PW10 tried to run away, but he was cordoned by aforesaid three accused persons. However, he could not tell how his brother Manish sustained injuries, though he said that his mother Sarwati and Manish had come there to rescue him and Sushil, and they had also sustained injuries. PW8/Sarwati deposed that she saw Sanjay assaulting his son with hockey stick and this statement indicates towards the statement of PW7/Manish, who also said that he was hit by hockey stick. PW10 also deposed about accused Sanjay being equipped with a hockey stick. PW8 further deposed about club blows given by Renu Bala over her head. In nut shell, after Sushil being hit by Vipul, as per evidence on the record, accused Kumar Pal, Vipul and Sanjay were assaulting Satish and when Manish, Sarwati and Ram Khiladi came there to rescue Sushil and Satish, aforesaid three accused alongwith other accused namely Prakashwati, Dharamwati and Renu Bala assaulted these persons also. Renu Bala being juvenile is not an accused in this case. It is well evident from the testimony of these injured persons and their respective MLCs that all of them sustained simple injuries, which Page 48 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 were inflicted upon them by the group of the accused persons jointly and in these circumstances, it becomes immaterial that which accused hit which particular person. The evidence on the record regarding injuries being also sustained by the accused persons, confirm their participation in this quarrel with complainant and his family members and so much of proved facts are sufficient to conclude that all accused persons caused simple injuries upon PW7, PW8 & PW10, in furtherance of their common intention to assault all these persons. CULPABLE HOMICIDE OF SUSHIL AND ROLE OF ACCUSED PERSONS 39 . In the foregoing paragraphs, I have already discussed about the injuries inflicted upon Sushil. It is undisputed fact that after sustaining such injuries, Sushil was taken to GTB hospital immediately after the incident and thereafter, he was admitted in the hospital for his treatment. It is also worth to mention here that except for Sushil no other persons either from the side of complainant or accused persons herein, was admitted in the hospital. This was worth to mention here because this situation reflects that Sushil had sustained such injury, which required his admission, meaning thereby he was in a kind of critical condition. The death summary of Sushil as well as the postmortem report show that Sushil remained under treatment and he underwent a brain surgery as well. However, he could not survive and he was declared dead in the intervening night of 15/16.01.2003. Ld. defence counsel for Vipul argued that the injury mentioned in the MLC of Sushil was not so grave, so as to Page 49 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 cause his death. It was also argued that the death was consequent to failure of treatment or negligence in the treatment. However, these arguments do not survive before the opinion given by PW19 in respect of cause of death of Sushil. PW19 opined that Sushil died because of Cranio-cerebral damage due to head injury produced by blunt force. He also opined that this injury was sufficient to cause death in the ordinary course of nature. I have already discussed the internal injuries sustained by Sushil in his head. He had suffered a fracture and there could not be any external appearance of such injury received by him. Therefore, the nature of injury mentioned in MLC of Sushil is of no help. At the same time, I have already concluded that this injury was caused to Sushil by a blow of iron rod on his head with great force, which resulted into fracture in his head. Just because Sushil could not be saved by the doctors, it cannot be said that Sushil died of medical negligence. Defence did not lead any evidence in this regard as well, to even suggest that there was medical negligence and that the injury caused to the Sushil was not sufficient to cause his death. Merely suggesting to PW19 that he gave a false PM report, was not sufficient on the part of defence. Even otherwise, to a layman also, it is well known that head/brain of a person is very delicate part of the body and hitting it with hard object with force may result into death of such person. Thus, it is not only about hitting a sensitive part of the body, but it is also about hitting it with such a force and with such a weapon like iron rod, which caused fracture in the skull. Therefore, there cannot be a second thought about correctness of Page 50 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 opinion given by PW19 relating to cause of death of Sushil as well as relating to sufficiency of such injury to cause death in normal course of action. Hence, I have no hesitation to conclude that it was a case of culpable homicide of Sushil with such knowledge that the injury being inflicted upon Sushil could have caused his death in normal circumstances. 40 . Now, as far as role of other accused persons behind this culpable homicide is concerned, I have already discussed and concluded in the foregoing paragraphs that this blow on the head of Sushil was given by Vipul with an iron rod. Therefore, for this culpable homicide other accused persons cannot be held responsible, because there is no role attributable to them peculiar to causing culpable homicide of Sushil.
41 . Now, it is to be also seen, if this is a culpable homicide not amounting to murder or otherwise. Ld. defence counsel for Vipul argued that it is a case of single blow and it is also a case of causing injury on the spur of the moment. Therefore, at the most a case for offence under Section 304 IPC would be made out. In support of his contentions, he referred to observations made by the courts in the cases of Gurmukh Singh (supra), and Saleem alias Gama (supra).
42 . As already observed by me herein above, every case is decided on the basis of peculiar facts and evidence therein and therefore, this court has to see, if aforesaid contention of defence can be sustained in the back drop of evidence and facts of this case. In this case, from the FIR lodged by accused Kumar Pal i.e. FIR No. 101/04 itself, a motive behind this quarrel is indicated. That Page 51 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 motive is also reflected in Ex.PW10/A. The motive was that Vipul along with his relative i.e. other accused persons wanted to teach a lesson out of vengeance, because Sushil had made some unwarranted and indecent remarks about wife of Vipul. Secondly, being guided by aforesaid motive, Vipul did not come to house of Sushil all alone, rather he took along with him Kumar Pal and Sanjay as well. Besides that, he also took along with him iron rod and other two accused were also armed with iron rod and hockey stick. Thereafter, he opted to hit Sushil on his head with that iron rod using such a force, which resulted into fracture in the head of Sushil. This was not an incident on the spur of the moment, rather it was an incident for which Vipul had come well prepared. Even the hit given by Vipul on the head of Sushil was not innocuous. He used a deadly weapon and great force to hit on one of the most sensitive parts of human body. Therefore, it cannot be said that it is a case of a single blow out of some quarrel taken place on spur of the moment, resulting into such injury upon Sushil. In the case of Gurmukh Singh (supra) itself, the court referred to observations made by same court in the case of Pappu v. State of M.P. (2006) 7 SCC 391, which are as follows: -
"It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors."
43 . In view of my foregoing discussion of facts and evidence and above-mentioned observations of the Supreme Court, I find that Page 52 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000001-2003 State v. Kumar Pal etc. SC No. 44265/2015, FIR No. 15/2003, PS Gokalpuri Judgment dated 26.07.2022 if Vipul did not have the intention to cause death of Sushil, then he committed this culpable homicide at least with intention of causing severe head injury upon Sushil knowing very well that the same was likely to cause death of Sushil. Thus, the act of Vipul is well covered under Section 300 Clause 2 IPC, which provides as under: -
"culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused,"
DECISION 44 . In view of my foregoing discussions, observations and findings, accused Vipul is held guilty and convicted for committing offence of murder punishable under Section 302 IPC. Accused Kumar Pal, Vipul, Sanjay, Prakashwati and Dharamwati are held guilty and convicted for committing offence punishable under Section 323 read with 34 IPC.
Announced in the open court (PULASTYA PRAMACHALA) today on 26.07.2022 ASJ-03 (North- East) (This order contains 53 pages) Karkardooma Courts/Delhi Page 53 of 53 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi