Delhi District Court
State vs . (1) Jogender Poddar on 17 September, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 148/2013
Unique Case ID No. 02404R0204732013
State Vs. (1) Jogender Poddar
S/o Late Sh. Sita Ram
R/o House No. 115,
Arjun Mandir Wali Gali,
Haiderpur, Delhi
Permanent Address:
Village Gopalpur, PO Arthua,
PS Phusera, Distt. Darbhanga,
Bihar
(Convicted)
(2) Pappu Poddar
S/o Jogender Poddar
R/o House No. 115,
Arjun Mandir Wali Gali,
Haiderpur, Delhi
Permanent Address:
Village Gopalpur, PO Arthua,
PS Phusera, Distt. Darbhanga,
Bihar
(Convicted)
FIR No.: 160/2013
Police Station: Shalimar Bagh
Under Section: 302/451/34 Indian Penal Code
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 1
Date of committal to sessions court: 8.8.2013
Date on which orders were reserved: 9.9.2014
Date on which judgment pronounced:9.9.2014
JUDGMENT:
(1) As per the allegations, on 24.4.2013 at about 10:30 PM at House No. 115, Arjun Mandir Wali Gali, Haiderpur, Delhi both the accused Jogender Poddar and Pappu Poddar in furtherance on their common intention committed house trespass and gave beatings to Chander Narayan and also gave a forceful blows on the chest of Chander Narayan as a result of which his head struck the cement street and thereby caused the death of Chander Narayan. BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 24.04.2013 at about 10:48 PM DD No. 48A regarding quarrel was received at Police Station Shalimar Bagh pursuant to which SI Krishan Kumar along with Ct. Raju he reached at House No. 115, Arjun Mandir Wali Gali, Haiderpur where they came to know that the injured had already shifted to BJRM Hospital by the PCR. Thereafter both SI Krishan Kumar and Ct. Raju reached BJRM Hospital where SI Krishan Kumar met the injured Chander Narayan a resident of House No. 115, Arjun Mandir Wali Gali, Haiderpur who was admitted in the Emergency and tried to record the statement of the injured but the injured was not speaking because of pain. During the night SI Krishan Kumar again went to the BJRM St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 2 Hospital and came to know that the injured had been referred to Trauma Center after which he went to Trauma Center but the injured was declared unfit for statement. Meanwhile Ashok the son of the injured also came to the hospital and informed the Investigating Officer that on 24.4.2013 at about 10:30 PM there was an altercation between his brother Anil @ Bhulla and his neighbour Nitish Kumar pursuant to which the father and brother of Nitish namely Jogender Poddar and Pappu Poddar entered their house and gave beatings to his father Chander Naraian. Ashok further informed the police that Jogender Poddar exhorted his son Pappu Poddar to kill Chander Narayan on which Pappu pushed Chander Naraian with a force due to which he (Chander Narayan) fell down on in the cemented street and thereafter both Jogender and Pappu gave legs and fist blows to Chander Narayan. (3) On the basis of the statement of Ashok the present FIR was registered. Thereafter on the pointing out of complainant Ashok, the accused Jogender Poddar was arrested and his disclosure statement was recorded. On 26.04.2013 the brother of Chander Narayan namely Hari Kumar came to the Police Station and informed the Investigating Officer that accused Jogender had threatened him and his brother. On 01.05.2013 the Investigating Officer received a call from Trauma Center, Kashmere Gate regarding Death of Patient Chander Narayan S/o Jogeshwar Rai on which Investigating Officer along with Ct. Harkesh went to Trauma Center and got the dead body shifted to the BJRM Hospital where it was got preserved in the Mortuary. After the postmortem the dead body of the deceased was handed over to its relatives. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 3
On the same day i.e. 1.5.2013 at the instance of Ashok, the accused Pappu Poddar was apprehended near the Outer Gate of Azadpur Mandi and arrested in the present case. After completion of investigations charge sheet was filed against the accused Jogender Poddar and Pappu Poddar. CHARGES:
(4) Charges under Sections 451/34 and 302/34 Indian Penal Code have been settled against both the accused Joginder Poddar and Pappu Poddar to which they pleaded not guilty and claimed trial. (5) However, before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution, the documents proved by them and the list of case property are hereby put in a tabulated form as under:
List of Prosecution Witnesses:
Sr. PW No. Name of the witness Details of the witness No.
1. PW1 Insp. Manohar Lal Police Witness Draftsman
2. PW2 HC Pawan Kumar Police Witness - Duty Officer
3. PW3 HC Mahavir Police Witness who has proved having collected the PCR Forms
4. PW4 ASI Jitender Police Witness - Duty Officer
5. PW5 ASI Jai Bhagwan Police Witness - PCR Van Incharge
6. PW6 Ct. Manoj Kumar Police Witness - PCR Official
7. PW7 Ct. Ravi Kumar Police Witness - DD Writer
8. PW8 W/Ct. Savita Police Witness - PCR Official St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 4 Sr. PW No. Name of the witness Details of the witness No.
9. PW9 Dr. Tufail Witness from Sushrut Trauma Center who has proved the CT Scan report of the injured
10. PW10 Dr. Tushit Mewada Witness from Sushrut Trauma Center who has proved the MLC of injured
11. PW11 Dr. S Kuki Witness from Sushrut Trauma Center who has proved that injured was unfit for statement on 28.4.2013
12. PW12 Ashok Kumar Public Witness - Son of the deceased and an eye witness to the incident
13. PW13 Dr. Yogesh Verma Witness from Sushrut Trauma Center who has proved the Death Summary of the deceased
14. PW14 Dr. Bhim Singh Autopsy Surgeon
15. PW15 Anil Kumar Public Witness - Son of the deceased and an eye witness to the incident
16. PW16 Hari Kumar Public Witness - Brother of the deceased
17. PW17 Heera Lal Public Witness - Neighbour of the deceased
18. PW18 Dal Chand Public Witness - Landlord of both the deceased and accused
19. PW19 Ct. Raju Police Witness who had reached the spot along with SI Krishan Kumar
20. PW20 Ct. Harkesh Police Witness who had reached Trauma Center along with SI Krishan Kumar
21. PW21 SI Krishan Kumar Police Witness - Initial Investigating Officer who had reached the spot
22. PW22 Insp. Rajesh Kumar Subsequent Investigating Officer
23. PW23 SI Sanjay Kumar Police Witness who had jointed investigations with Inspector Rajesh Kumar
24. PW24 Dr. Deepak Chugh Witness from BJRM Hospital who has proved the MLC of the deceased St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 5 List of documents exhibited:
Sr. Exhibit No. Details of documents
No.
1. PW1/1 Affidavit of evidence of Insp. Manohar Lal Insp. Manohar Lal
2. PW1/A Site plan
3. PW2/1 Affidavit of evidence of HC Pawan Kumar HC Pawan Kumar
4. PW2/B DD No. 49A
5. PW3/1 Affidavit of evidence of HC Mahabir HC Mahabir
6. PW3/A DD No. 50B
7. PW3/B DD No. 67B
8. PW3/C & D PCR Forms
9. PW4/1 Affidavit of evidence of SI Jitender ASI Jitender
10. PW4/A DD No. 21A
11. PW4/B Copy of FIR
12. PW4/C Endorsement on Rukka
13. PW5/1 Affidavit of evidence of ASI Jai Bhagwan ASI Jai Bhagwan
14. PW6/1 Affidavit of evidence of Ct. Manoj Kumar Ct. Manoj Kumar
15. PW7/1 Affidavit of evidence of Ct. Ravi Kumar Ct. Ravi Kumar
16. PW7/A DD No. 15B
17. PW8/1 Affidavit of evidence of W/Ct. Savita W/Ct. Savita
18. PW9/A CT Scan Report Dr. Tufail
19. PW10/A MLC of Chander Narain Dr. Tushit Mewada
20. PW12/A Statement of Ashok Kumar Ashok Kumar
21. PW12/B Arrest memo of accused Jogender
22. PW12/C Personal search memo of accused Jogender
23. PW12/D Disclosure statement
24. PW12/E Arrest memo of Pappu Poddar
25. PW12/F Personal search memo of Pappu Poddar
26. PW12/G Disclosure statement of Pappu Poddar
27. PW12/H Pointing out memo
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 6
28. PW12/I Dead body identification statement
29. PW12/J Dead body handing over memo
30. PW13/A Death summary Dr. Yogesh Verma
31. PW13/B Death Certificate
32. PW14/A Postmortem Report Dr. Bhim Singh
33. PW15/A Dead body handing over memo Anil Kumar
34. PW16/A Dead body identification statement Hari Kumar
35. PW17/PX1 Statement of Heera Lal Heera Lal
36. PW18/PX1 Statement of Dal Chand Dal Chand
37. PW20/A Seizure memo of blood sample in gauze piece Ct. Harkesh
38. PW22/A Pointing out memo Insp. Rajesh Kumar
EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as
Twenty Four Witnesses as under:
Public/ Eye Witnesses:
(7) PW12 Ashok Kumar is the son of the deceased and an eye witness
to the incident. He has deposed that on 24.4.2013 at about 10.30 PM he was returning from his school when one boy informed him that somebody was about to kill his brother Anil @ Bhulla. According to the witness, both the accused Jogender Poddar and Pappu Poddar were residing in their neighbourhood and on earlier occasions also many times they used to quarrel with them on minor issues and on the night of incident, the younger son of accused Joginder Poddar, named Nitish Kumar was sleeping on the roof.
Witness has further deposed that his (witness's) brother Anil @ Bhulla was St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 7 also sleeping on the roof and on some issue, his brother Anil @ Bhulla and Nitish started quarreling with each other. According to the witness Nitish informed his father and his brother also informed his father. He has further deposed that accused Pappu brother of Nitish was under the influence of liquor on that night and accused Joginder, Pappu and Nitish entered in his house and started giving beatings to his brother Anil @ Bhulla. Witness has further deposed that they continued quarreling for about 1520 minutes inside their house and at that time, he was outside his house when some body informed him about the incident. The witness has testified that the accused Joginder Poddar exhorted accused Pappu "Saale ko maar dekh lenge" and thereafter they dragged his brother and his father down stairs while beating and he (witness) was also present there. According to the witness in the meantime, his father tried to inform their neighbours about the quarrel but Pappu pushed him with a force due to which his father fell down on a stone and started vomiting blood. He has further testified that after giving the beatings, all accused persons fled away from the spot. The witness has also deposed that he picked up the mobile of some other person and called at 100 number on which PCR Van came at spot and took his father to BJRM hospital where he was kept for about threefour hours and then his father was referred to Trauma Center, Kashmere Gate. Witness has further deposed that he took mobile number of one police official from SI Krishan Kumar and informed the police official available at Trauma Center and when information was given to SI Krishan Kumar, he went to Trauma Center Kashmere Gate. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 8 He has further deposed that his father succumbed due to injuries on 1.5.2013 i.e after about eight days from the incident. According to the witness, his statement was recorded by the Investigating Officer on 24.4.2013 which is Ex.PW12/A. He has also deposed that on 25.4.2013, the police officials came to his house and he got the accused Joginder Poddar arrested from his house vide arrest memo Ex. PW12/B, his personal search was conducted vide memo Ex.PW12/C after which the accused Joginder Poddar made his disclosure statement which is Ex.PW12/D and thereafter police took accused Joginder Poddar to Police Station and recorded his statement. He has testified that on 1.5.2013, he again joined the investigation with police officials for search of other accused when one of his friend informed him that accused Pappu was available at outer gate of Azadpur Mandi. According to the witness thereafter he along with police officials reached at Azadpur Mandi where accused Pappu was found standing and he pointed out towards him. He has proved that on his pointing out accused Pappu was arrested vide memo Ex.PW12/E, his personal search was conducted vide memo Ex.PW12/F and accused Pappu made his disclosure statement which is Ex.PW12/G. The witness has also deposed that at the time of arrest of accused Joginder, his pointing out memo was prepared which is Ex.PW12/H. Witness has further deposed that on 1.5.2013, he identified the dead body of his father vide his statement Ex.PW12/I and after postmortem they received the dead body of his father vide receipt Ex.PW12/J. Witness has further deposed that on 2.7.2013, he St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 9 pointed out the place of incident to the police in detail where Investigating Officer prepared the site plan at his instance. According to the witness, he was interrogated as to from whose phone he called at 100 number and he informed the police that he had made the call from the mobile of Heera Lal who is resident of 114, Arjun Mandir Wali Gali. He has also deposed that on the day of the incident in the morning while his father was going for work, accused Joginder told his father"dekh loonga saale tujhko" and his father told the persons available nearby that "dekho kaise bol raha hai, mai ladai nahi karna chahta".
(8) In his cross examination by Ld. Defence counsel, witness has deposed that he is a Matriculate and is studying in 11th standard in Senior Secondary Govt. School, Shalimar Village, Delhi and his school timings are 12.30 PM to 5.30 PM. According to the witness, he had come to his house at about 6 PM from school. He is unable to tell the name of his friend who had informed him at about 6.10 PM about the incident at his house. Witness has further deposed that there are cemented steps leading to their roof. He has explained that the roof of Pappu and their roof is a common roof and his father used to sleep inside the house. According to the witness the quarrel started at his house at about 10.00 PM and about 67 persons were present at the time of incident. Witness has further deposed that he did not inform the name of said persons to the police. The witness has also deposed that at the time of incident, his father was present at the first floor whereas he was at ground floor and he tried to catch Pappu but Pappu managed to escape. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 10 Witness has further deposed that the person from whom he picked the mobile was present at the spot at that time and it was about 11.00 PM when he called the police. Witness has further deposed that two police officials came to his house and took his father to hospital and he also accompanied them. He has also testified that on the way to hospital, his father was speaking with him and was conscious. he remained with his father at hospital for about threefour hours. He has testified that they never lodged any complaint with police regarding earlier minor issues raised by accused persons as his father never paid any paid to those issues. He has denied the suggestion that his father had received injuries due to fall from stairs or that his father was a heart patient. Witness has further denied the suggestion that they had implicated both the accused persons falsely in this case.
(9) PW15 Anil Kumar is also the son of the deceased and an eye witness to the incident. He has deposed that at the time of incident, he along with his parents were living in the house of Dal Chand in Gali No.10, Arjun Mandir Wali Gali. According to the witness both the accused persons i.e. Joginder Poddar and Pappu Poddar were also living in the same premises. Witness has further deposed that on 24.4.2013 at about 10.00 PM, he came back from his work to his house and went to sleep on their roof. He has testified that accused Nitish was also on the roof and the moment he reached on the roof, Nitish abused him by the name of sister. According to the witness he told this fact to his father who complained to accused Joginder in this regard on which accused Joginder also started abusing his father on which his St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 11 father told him not to abuse him and at the same time, accused Pappu came to their house in the room at first floor and attacked his father. He has also deposed that his father ran downstairs to inform their landlord after which both accused started giving beatings to his father and gave fist and kick blows to his father and pushed him with force due to which his father fell on the stone lying there and received head injury. The witness has further deposed that when his father fell down, both the accused again gave kick and fist blows to his father. He has testified that thereafter all the accused persons fled away from the spot and his father vomitted blood. Witness has further deposed that his brother took mobile of Heera Lal who was present at the spot and called at number 100 from his mobile on which police came at spot and took his father to BJRM hospital. He has also deposed that his father was kept at BJRM hospital for about 1½ hour after which police officials took his father to Trauma Center, Kashmere Gate. The witness has further testified that at Trauma Center he inquired from the Doctor about the condition of his father on which Doctor said that his father would regain consciousness within 1213 hours but his father did not regain consciousness. According to him, doctor told them that his father would be operated and his father had undergone operation which was permitted by his brother as his mother was weeping. Witness has further deposed that ultimately on 1.5.2013, his father succumbed to his injuries and thereafter, dead body of his father was brought to the mortuary of BJRM hospital where postmortem examination was done on his body after which the dead body of his father was handed over to them vide St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 12 receipt Ex.PW15/A and his statement was recorded in BJRM hospital. (10) In his cross examination by Ld. Defence Counsel, witness has deposed that at the time of incident, he was present in his house. According to the witness, he and his brother could not stop both the accused as they both were also beating him and his brother. He has explained that at the time when both the accused were beating them, his father went to inform their landlord but they (accused) did not allow his father to inform the landlord and beat him on the way. He has further deposed that Pappu was not sleeping on the roof and came at spot within ten minutes. Witness has further deposed that there are two houses between his house and house of Heera Lal and the quarrel took place at the first floor of his house. According to the witness, his mother was not present on that day at house and about 1015 persons were present at the spot but nobody came to save them. Witness has also deposed that after about 20 minutes police reached at spot and he and his brother accompanied the police. He is not aware as to how many times the police came to his house and has explained that at that time he was looking after his father at Trauma Center.
(11) Witness has further deposed that accused Joginder was arrested on 25.4.2013 i.e. one day after the incident. Witness has denied the suggestion that his father had received injuries due to falling from stairs or that his father was a heart patient. Witness has denied the suggestion that they had implicated both the accused persons falsely in this case. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 13 (12) PW16 Sh. Hari Kumar has deposed that he is residing at house No. C78, gali No. 9, Village Shalimar, Delhi along with his family and he used to help his brother in put a rehri of vegetables and fruits at Pitampura Q Block. According to the witness, the father of Pappu (i.e. accused Jogender Poddar whom the witness has correctly identified in the Court) had told him on threefour occasions that children of his (witness's) brother used to quarrel with his son and troubling him and therefore he should make them understand otherwise he would not leave them (Papu ke papa ne mujhe kaha ki tumahre bhai ke ladke mere ladke ko pareshan karte hai, unko samja do nahi to chorenge nahi unko). He has also deposed that he was residing separately and therefore after hearing what Jogender Poddar told him, he advised his brother and his sons accordingly. According to the witness after threefour days, date he does not recollect, his nephew came and informed him that the accused Jogender Poddar had quarreled with them and his brother on which his brother had received injuries and had been taken to Jahangipuri hospital. Witness has further deposed that on 01.05.2013 he went to BJRM Hospital and identified the dead body of his brother vide memo Ex.PW16/A and after postmortem examination he received the dead body of his brother vide memo Ex.PW12/J. (13) In his cross examination by Ld. Defence Counsel, the witness has deposed that deceased was his real brother. According to the witness, he resides in Shalimar Village whereas deceased was residing at Haiderpur. He has also deposed that they are original residents of Madhubani, Bihar and he normally visited his brother after about 1015 days. He is unable to tell the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 14 reason why there were frequent disputes between his brother and the accused. Witness has denied the suggestion that there were no dispute between the family of the accused and his brother. He is also unable to tell the dates when the accused had told him to advise his brother and his family. Witness has denied the suggestion that he cannot specify the dates because the accused had never told him to advise his brother or issued any kind of threat at any point of time. Witness has admitted that he cannot tell the name of the accused (Jogender Poddar as pointed out by the court to the witness). Witness has further deposed that he knew the accused prior to the incident and has voluntarily explained that on one or two occasions when he went to his brother he met him. He has also admitted that at that time there was no dispute between his brother and the accused. Witness has denied the suggestion that he was a planted witness.
(14) PW17 Heera Lal has deposed that he belongs to Village Singholi Kali, District Badau, UP and knew accused Pappu but he is not known to the father of accused Pappu. According to the witness accused Pappu and his family are residing in the house of Dal Chand and the deceased Chander Narayan and his family member were also residing in the house of Dal Chand. Witness has further deposed that at about 10.00/ 10.30 PM, he was coming to his gali from the Road when he noticed a crowd outside the house of Dal Chand from the distance of about 50 meters. Witness has further deposed that when he reached near the shop of Parchoon situated in the said gali, Ashok came while running after seeing his phone as there was light in his phone and St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 15 he asked to hand over his phone to him. According to the witness Ashok snatched his phone and call somebody but he is not aware whom he called. According to the witness thereafter, he snatched his phone from Ashok and when he reached the spot, he noticed the person (who had died in this case) was lying on the ground in injured condition. Witness has further deposed that due to darkness, he could not see as to who was beating whom. (15) With the permission of the Court leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that he was standing at the corner of gali at that time. Witness has further deposed that he did not notice who was beating to whom due to darkness and he did not notice whether accused Joginder Poddar and Pappu pushed the Chander Narayan (now deceased ). Witness has admitted that police had come at the spot very late.
(16) Since the witness was resiling from his earlier statement under Section 161 Cr.P.C. therefore, he was crossexamined by the Ld. Addl. PP for the State, wherein he has admitted that the son of the deceased had made a call at 100 number from his mobile after the quarrel which is specifically mentioned in his statement Ex.PW17/PX1. Witness has admitted that the house of Dal Chand is situated at the corner of the gali. According to the witness, he had not stated to the police in his statement Ex.PW17/PX1 that both the accused persons were giving beatings to Chander Narayan; that accused Joginder Poddar and Pappu pushed forcefully on the chest of deceased as a result of which Chander Narayan fell in the gali and when he fell St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 16 on the ground even then, both the accused gave beatings to Chander Narayan with kick and fist blows. However, when confronted with his statement Ex.PW17/PX1 the above facts were not found so recorded. He has denied the suggestion that he had noticed that both the accused persons were giving beatings to Chander Narayan or that accused Joginder Poddar gave a push on the chest of deceased Chander Narayan as a result of which Chander Narayan fell down. Witness has denied the suggestion that when deceased fell on the ground even then they continued to gave beatings to Chander Narayan with kick and fist. Witness has further denied the suggestion that he was intentionally concealing the true facts from the court being won over by the accused persons. He has also denied the suggestion that he had noticed the incident and he was intentionally concealing the said fact from the court. (17) In his cross examination by Ld. Defence Counsel witness has deposed that what ever he has deposed in the court is his correct statement. According to the witness, his statement was not recorded by the police and police only talked to him twice on phone.
(18) PW18 Sh. Dal Chand is the landlord of the deceased as well as of the accused. He has deposed that he is residing at House No. 115, Govind Mohalla, Arjun Wali Gali, Haiderpur, Delhi along with his family and he is original resident of Delhi and he is the owner of house No. 115. According to the witness, he is employed as a Mali in DDA Horticulture and had given three rooms on the first floor on rent in his house bearing No. 115. Witness has further deposed that while he is residing in one room, the two rooms were St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 17 given on rent on the first floor and one room was given on rent to the accused. Witness has identified the accused Jogender Poddar by pointing out towards him and not by name whereas the other room was given to the family of the person who had expired/ deceased who was the father of Jhanda. It has been observed by this Court that the witness Ashok who is the son of the deceased is also known as Jhanda which name of Ashok is confirmed by the witness. (19) According to the witness, date he does not recollect but it was around six months back at about 910 PM at night when he came out of the house, he found Ashok @ Jhanda quarreling with his own father and he tried to intervene and asked what had happened on which Ashok @ Jhanda told him "Dhaka laga, Papa gir gaye hai". Witness has further deposed that he told them "haspatal le jao ya police bula lo" on which Ashok called the police and at that time the father of Ashok was unconscious and after some time the PCR came and shifted the father of Ashok to the hospital. (20) Leading questions were put to the witness by Ld. Addl. PP for the State wherein the witness has deposed that he is not sure but he think the date of incident was 24.04.2013 and has voluntarily explained that he is totally illiterate and therefore cannot tell much about date and month. Witness has admitted that the police had interrogated him and has voluntarily explained that they had asked him if he is the landlord and also recorded his statement after interrogating him after the incident. Witness has denied the suggestion that he told the police in his statement that on 24.04.2013 at around 10:30 PM the accused Jogender Poddar was shouting and telling his son Pappu "aaj is St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 18 sale ko jaan se mar de bake mein dekh loonga". However, when confronted with the statement Ex.PW18/PX1 the above fact was found so recorded. Witness has denied the suggestion that he also told the police that on hearing these voices he immediately came out of and saw that Chander Narayan was lying in the gali whereas the accused Jogender Poddar was giving him leg blows and when he tried to intervene and save him both Jogender and his son Pappu ran away and it was then that he saw that Chander Narayan became unconscious. When confronted with his statement Ex.PW18/PX1 the above fact found so recorded. Witness has admitted that the family of the accused Jogender i.e. his son Pappu still resides in his house as a tenant. Witness has denied the suggestion that Ashok @ Jhanda had told him that his father had been beaten by the accused and had fallen down and that is why he told them to call the police.
(21) The witness has been declared hostile by Ld. Addl. PP for the State and in his cross examination by the Ld. Addl. PP for the State the witness has denied the suggestion that he has been won over by the family of the accused and that is why he was trying to save him from penal consequences and not supporting the earlier version which he have given to the police. The Ld. Public Prosecutor has declared the witness hostile on the point of incident and the allegations against the accused. (22) This witness was not cross examined by Ld. Defence Counsel despite being granted an opportunity in this regard. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 19 Witnesses of Medical Record:
(23) PW9 Dr. Tufail has deposed that on 25.04.2013 he was posted at Sushtra Trauma Center and on that day patient namely Chandar Narain, aged 50 years male was referred to him for CT Head. According to the witness after doing CT Head he gave his report which is Ex.PW9/A according to which there were multiple hemorrhagic contusions in left frontoparietal region and SDH along left frontotemporo parietal region causing mid line shift. This witness was not cross examined by Ld. Defence counsel despite an opportunity being granted in this regard.
(24) PW10 Dr. Tushit Mewada has proved that on 25.04.2013 patient namely Chander Narayan S/o Sh. Jogeshwar Rai, aged 50 years male was referred to Sushruta Trauma Center by BJRM Hospital with alleged history of Physical Assault and in the Casualty initially the patient was examined by CMO Dr. Deepak Chugh and thereafter the patient was referred in Neurosurgery where Dr. Ankit Mathur examined the patient vide MLC No. 58312 of BJRM Hospital which is Ex.PW10/A bearing signatures of Dr. Ankit Mathur at point A which the witness duly identified. Witness has further deposed that according to the MLC after examining the patient, Dr. Ankit declared the patient as Unfit for statement which observations are mentioned at encircled portion X. (25) In his cross examination by Ld. Defence counsel, witness has admitted that he has not examined the patient personally. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 20 (26) PW11 Dr. S. Kuki has deposed that on 28.04.2013 he examined the patient namely Chander Narayan S/o Sh. Jogeshwar Rai, aged 50 years male vide MLC Ex.PW10/A who was referred to ENT Department. According to the witness after examination he gave his observations that patient was Unfit for Statement which observations are mentioned on the MLC Ex.PW10/A at encircled portion Y. This witness was not cross examined by Ld. Defence counsel despite an opportunity in this regard. (27) PW13 Dr. Yogesh Verma has proved that on 01.05.2013 Dr. Kanika Chandra prepared the death summary of deceased Chander Narayan, aged 50 years male, which death summary is Ex.PW13/A bearing signatures of Dr. Kanika Chandra at point A. He has also proved that Dr. Kanika Chandra prepared the death certificate in respect of the same copy of which is Ex.PW13/B. (28) In his cross examination by Ld. Defence counsel, witness has admitted that he has never examined the patient himself nor the death summary was prepared by him and has voluntarily explained that he was only deposing on the basis of the official record. Witness has admitted that the original death certificate is not on record and has voluntarily added that it might have been given to the family of the deceased as per normal practice. (29) PW14 Dr. Bhim Singh is the Autopsy Surgeon who has deposed that on 01.05.2013 he conducted the postmortem on the body of deceased Chander Narayan S/o Jogeshwar Rai, aged about 50 years male at 11:40 AM St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 21 brought by SI Krishan Kumar of Police Station Shalimar Bagh with alleged history of physical assault on 24/25.04.2013, expired during treatment on 01.05.2013 at Shustra Trauma Center, Delhi. Witness has further deposed that on examination he found following external injuries on the body of the deceased:
1. Surgical stitched wound measuring 29 cm starting from middle of forehead, parietal, occipital to upto net temporal region.
2. Scared abrasion 3 cm x 2cm over occipital region.
(30) According to the witness, on internal examination of head and neck there was presence of operation mark measuring approximately 10cm x 8cm underlying brain shows SDH and pus at places, brain was edematous; on examination of Chest both lungs were congested, edematous on cut section shows frothy purulent pus with consolidation at places and on examination of Abdomen and Pelvis all the organs were congested and Stomach was empty. (31) He has proved having opined that Death was due to coma and shock consequent upon head injury and septicemia; all the injuries were antemortem and could be caused by blunt/surface impact and time since death as per hospital record i.e. about four hours. He has also deposed that total inquest papers received were 15 in number and after postmortem examination he handed over the dead body along with one sealed pullanda containing blood in gauze piece with sample seal of department i.e. BJRM Hospital, Jahangirpuri, Delhi to the police. He has proved that the detailed Postmortem Report in this regard which is Ex.PW14/A. On a specific Court St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 22 Question the witness has explained that in his view the nature of injury is such that it is likely to cause the death of the person to whom the harm is caused. (32) In his cross examination by Ld. Defence counsel, witness has admitted that the death of the deceased was on account of supervening factors and has voluntarily explained that he had developed septicemia after the operation. Witness has further deposed that he was conscious and oriented when he admitted in the hospital but later due to subdural haematoma he lost his consciousness and never regain consciousness thereafter. Witness has admitted that the head injury i.e. injury No.1 could be possible on account of a fall on a blunt hard surface. (33) PW24 Dr. Deepak Chugh has deposed that on 24.04.2013 he was posted at BJRM Hospital as CMO and on that day at about 11:55 PM patient namely Chander Narayan S/o Jogeshwar Rai, aged around 50 years male was brought in the casualty of the hospital by ASI Jai Bhagwan of PCR official with alleged history of physical assault. Witness has further deposed that initially patient was examined by Dr. Bishwanath, JR Casualty under his supervision vide MLC No. 58312/13 which is Ex.PW10/A and examining the patient Dr. Bishwanath referred the patient to SR Surgery and ENT OPD. The witness has identified the signatures and handwriting of Dr. Bishwanath as he has seen him while writing and signing during course of his official duties. According to the witness, according to the MLC at the time of examination patient was conscious, oriented with stable vitals and on local St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 23 examination there was a abrasion over occipital region. Witness has further deposed that there was history of vomiting and nasal bleed and loss of consciousness when the patient was brought in the casualty. (34) This witness was not cross examined by Ld. Defence counsel despite an opportunity being granted in this regard. Police/ Official Witnesses:
(35) PW1 Inspector Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having prepared the scaled site plan which is Ex.PW1/A. (36) In his cross examination by Ld. Defence Counsel, witness has admitted that he prepared the fair site plan in the office and has voluntarily added that at the spot he only prepared the rough notes. Witness has admitted that he did not hand over the rough notes to the Investigating Officer and has voluntarily explained that he destroyed the same. Witness has denied the suggestion that the scaled site plan is not correct as per the site. (37) PW2 HC Pawan Kumar is also a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) which is Ex.PW2/A wherein he has proved that on 24.4.2013 at 10:48 PM a PCR call was received regarding a quarrel in Gali No.10, Shalimar Bagh on which he lodged DD No. 49A copy of which is Ex.PW2/B. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 24 (38) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that the above DD has been anti timed on the directions of the senior officers.
(39) PW3 HC Mahabir is a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the DD No. 50 B copy of which is Ex.PW3/A;
DD No. 67B copy of which is Ex.PW3/B and the PCR Forms which are Ex.PW3/C and Ex.PW3/D. This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity in this regard. (40) PW4 ASI Jitender is a formal witness being the Duty Officer who has been examined way of affidavit, which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the DD No.21A copy of which is Ex.PW4/A, copy of FIR which is Ex.PW4/B and his endorsement on rukka which is Ex.PW4/C. (41) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that the rukka and the FIR have been ante timed on the directions of the senior officers.
(42) PW5 ASI Jai Bhagwan is a formal witness being the who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 24.4.2013 at about 10:4510:50 PM while he was on the main road near Gali No.10 some people were having an injured and informed that they had called the PCR. He has St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 25 proved that he came to know the name of injured as Chander Narayan, after which he transmitted the facts to Control Room at about 10:55 PM. According to the witness, on the directions of Control Room he along with staff removed the injured to BJRM Hospital and at that time his son Ashok was also there and admitted the injured there.
(43) In his cross examination by Ld. Defence counsel, witness has deposed that there were 56 public persons who had told him that the injured person Chander Narayan was beaten by his neighbors and one of them was his son Ashok. According to the witness, he had given the details of Ashok to the Control Room when he transmitted the information and apart from the injured Chander Narayan three other persons had accompanied him in the PCR van. Witness has further deposed that one was Ashok, he did not make inquiries about remaining two persons and at that time Chander Narayan was semi conscious and has voluntarily explained that when he touched him and asked him name, he only informed his name. He has also deposed that he did not ask Chander Narayan as to what had happened and has voluntarily explained that he was not in a position to speak and therefore the information was given by his son Ashok. Witness has further deposed that the injured Chander Narayan was speaking only after he shook him but not otherwise. According to the witness, he remained in the hospital for about 2025 minutes and SI Krishan from the local police had come and during this 2025 minutes in the hospital, he did not speak to the injured nor he saw doctors speaking to him. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 26 (44) PW6 Ct. Manoj Kumar is a formal witness being the PCR Official who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the PCR Form which is Ex.PW3/D. This witness was not cross examined by Ld. Defence counsel despite opportunity granted.
(45) PW7 Ct. Ravi Kumar is a formal witness being the DD Writer who has been examined by way of affidavit, which is Ex.PW7/1 wherein he has proved having lodged DD No. 15B copy of which is Ex.PW7/A. This witness was not cross examined by Ld. Defence counsel despite an opportunity being granted.
(46) PW8 W/Ct. Savita is a formal witness being the PCR Official who has been examined by , has tender her examination in chief by way of affidavit, which is Ex.PW8/1 bearing her signatures at point A and B and she rely upon PCR form which is Ex.PW3/C. This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity in this regard.
(47) PW19 Ct. Raju has deposed that on 24.04.2013 he was posted at Police Station Shalimar Bagh and on that day he was on emergency duty from 8PM to 8AM. According to the witness at about 10:5011 PM he accompanied SI Krishan Kumar on the call vide DD No. 48A which is Ex.PW2/A and reached at house No. 115, Arjun Mandir Wali Gali, Haiderpur where he came to know that the injured had already been shifted to BJRM Hospital by the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 27 PCR. Witness has further deposed that thereafter he along with SI Krishan reached BJRM Hospital from where he obtained the MLC of Chander Narayan resident of House No. 115, Arjun Mandir Wali Gali, Haiderpur where SI Krishan tried to record the statement of the injured but he was not in a position to make a statement being in extreme pain and refused to make a statement. According to the witness in the meanwhile the doctors of BJRM had referred him to bigger hospital after which they returned to the Police Station. He has also deposed that on 25.04.2013 Duty Officer ASI Jitender handed over to him a rukka and the copy of the present FIR and directed him to take the same to the house No. 115, Arjun Mandir wali gali, Haiderpur and to hand over to SI Krishan Kumar. He has testified that when he reached the spot he handed over the copy of the FIR and the tehrir to SI Krishan and also met Ashok in the house. The witness has further deposed that on the pointing out of Ashok the accused Jogender was apprehended and arrested from his house. He has proved that the accused Jogender was interrogated and thereafter the Investigating Officer arrested him vide memo Ex.PW12/B and his personal search was conducted vide memo Ex.PW12/C. According to the witness after interrogation his disclosure statement was also recorded vide memo Ex.PW12/D and the accused then pointed out the place of incident to them on which Investigating Officer prepared the pointing out memo which is Ex.PW12/H. Witness has further deposed that thereafter they took him to BJRM Hospital where his medical examination was got conducted and thereafter he was brought back to Police Station Shalimar Bagh and put in the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 28 lock up. According to the witness, his statement was recorded in the Police Station and he was relieved. He has correctly identified the accused Jogender Poddar in the Court.
(48) In his cross examination by Ld. Defence counsel, witness has deposed that when they reached the hospital after receiving the call, he did not find any relative of the injured present with him and has voluntarily explained that he was not aware if they were at other place in the hospital but he did not see anybody. Witness has admitted that SI Krishan Kumar did not record the statement of any person in his presence in the hospital. Witness has further deposed that he had personally seen the injured when they went to the hospital but he is unable to tell where all he had received injuries. Witness has denied the suggestion that since he did not go to the hospital, therefore he is unable to tell the details of the injuries and has voluntarily explained that he was standing away from the injured at some distance and therefore he is unable to tell the details. He is unable to tell whether the injured was conscious or unconscious at that time and has voluntarily explained that he was standing at some distance from injured Chander Narayan. He is also unable to tell whether SI Krishan Kumar had made inquiries from the doctor regarding fitness of the injured to make the statement and got recorded the same. He is not aware if the landlord also resides in the same house as that of the injured and the accused. He has admitted that in his presence only the son of the injured was joined in the investigations and of arrest of the accused Jogender. Witness has admitted that other persons also residing in the same building. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 29 According to the witness they remained in the house of the accused for about one and a half to two hours and all the documents of arrest, disclosure etc. were prepared at the house/spot itself. Witness has denied the suggestion that the accused Jogender had himself come to the Police Station from where he was detained and arrested. He has further denied the suggestion that all documentation was done while sitting in the Police Station and he merely signed the same on the asking of the Investigating Officer. Witness has denied the suggestion that accused Jogender did not make any disclosure statement nor he pointed out the place of the incident or that the same was recorded and prepared by the Investigating Officer of his own and he merely signed the same on the asking of the Investigating Officer. He has also denied the suggestion that accused was compelled to sign the blank papers which were later on converted into various memos.
(49) PW20 Ct. Harkesh has deposed that on 1.5.2013 he was on Emergency Duty along with SI Krishan at Police Station Shalimar Bagh, Delhi and at about 8.00 AM, SI Krishan received a call from Trauma Center, Kashmere Gate regarding death of a patient Chander Narayan S/o Jogeshwar Rai. According to the witness on receipt of said information, he along with SI Krishan went to Trauma Center after which Investigating Officer SI Krishan Kumar collected the treatment documents and took the dead body. Witness has further deposed that thereafter body was got preserved in the Mortuary of BJRM Hospital where Investigating Officer prepared inquest proceedings and got the postmortem done on the dead body. He has testified that Investigating St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 30 Officer recorded the statement of relative of deceased regarding the identification of dead body vide memo Ex.PW16/A. According to the witness after postmortem the dead body was handed over to the relatives of deceased vide memo Ex.PW12/J and after postmortem, doctor handed over blood sample in gauze piece and sample seal. Witness has further deposed that the blood sample in gauze piece was in sealed envelope sealed with BJRM Hospital Govt. of NCT Delhi which Investigating Officer seized vide memo Ex.PW20/A and thereafter, they returned to Police Station. (50) The witness has further deposed that on the same day, they again went in search of accused persons and reached at the house No.115, Arjun Mandir Wali Gali and they tried to search for the accused Pappu but his house was found locked. According to the witness complainant Ashok who was standing near his house came to them and told them that one of his friend has informed that accused Pappu is seen at Azadpur Subzi Mandi. Witness has further deposed that thereafter they joined Ashok Kumar in the investigation and took them to the Azadpur Subzi Mandi where they search for accused Pappu. According to the witness at about 5.00 PM, when they reached at the Outer Gate of Subzi Mandi, Ashok Kumar pointed out towards a person and identified him as accused Pappu and thereafter accused Pappu was arrested vide memo Ex.PW12/E and his personal search was carried out which is Ex.PW12/F. Witness has further deposed that accused Pappu made his disclosure statement vide Ex.PW12/G after which accused Pappu got St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 31 medically examined from BJRM Hospital and Ashok was discharged. He has also deposed that thereafter he along with Investigating Officer and accused Pappu came to Police Station where accused was kept in lock up and his statement was recorded by Investigating Officer. He has correctly identified the accused Pappu in the Court.
(51) In his cross examination by the Ld. Defence Counsel, witness has denied the suggestion that accused Pappu was not arrested in the manner deposed by him or that the signatures of accused Pappu on several blank papers and subsequently converted into his arrest memo, personal search memo, disclosure statement etc. Witness has admitted that at the time of arrest of accused Pappu no public person was joined in the investigation. He has also deposed that accused Pappu tried to flee but he was apprehended by them. Witness has further denied the suggestion that he had not joined the investigation or that he had deposed at the instance of Investigating Officer. (52) PW21 SI Krishan Kumar has deposed that on 24.04.2013 he was posted at Police Station Shalimar Bagh and on that day he was on Emergency Duty from 8:00 PM to 8:00 AM. According to the witness at about 10:48 PM he received DD No. 48A which is Ex.PW2/A pursuant to which he along with Ct. Raju he reached at House No. 115, Arjun Mandir Wali Gali, Haiderpur where he came to know that the injured had already shifted to BJRM Hospital by the PCR. Witness has further deposed that thereafter he along with Ct. Raju reached BJRM Hospital from where he met Chander Narayan a resident of House No. 115, Arjun Mandir Wali Gali, Haiderpur who was admitted in St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 32 the Emergency and tried to record the statement of the injured but he was not speaking because of the pain. He has also deposed that at night he again went to the BJRM Hospital and came to know that he had been referred to Trauma Center and he then deposited the MLC to the doctor with a request to give the opinion with regard to the condition of the injured on which the doctor opined that he was unfit for statement. According to the witness, meanwhile Ashok the son of the injured also came to the hospital and he recorded his statement. He has testified that he then returned to the Police Station and made his endorsement on the statement of Ashok which is Ex.PW12/A which endorsement is Ex.PW21/A. Witness has further deposed that after handing over the same to Duty Officer he went back to the spot where he met Ashok who had returned from the hospital and was present in the room and when they checked the adjoining room of Jogender Poddar it was locked. Witness has further deposed that Ashok then pointed out the spot on which the incident had taken place and on his pointing out he (witness) prepared the site plan Ex.PW21/B. He has also deposed that in the meanwhile Ct. Raju came to the spot and handed over the copy of the FIR and original rukka to him. He has testified that Ashok also came down from his room and informed that Jogender Poddar had come back to his room and on his pointing out he interrogated the accused Jogender Poddar and then arrested him vide memo Ex.PW12/B and his personal search was conducted vide memo Ex.PW12/C. According to the witness after interrogation his disclosure statement was also recorded vide Ex.PW12/D. Witness has further deposed that the accused St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 33 then pointed out the place of incident to them on which he prepared the pointing out memo which is Ex.PW12/H. He has testified that thereafter they took him to BJRM Hospital where his medical examination was got conducted and thereafter the accused was brought back to Police Station Shalimar Bagh and put in the lock up and on the next the day the accused was produced before the court of Ld. MM and got remanded to Judicial Custody. Witness has further deposed that on 26.04.2013 the brother of Chander Narayan namely Hari Kumar came to the Police Station and told him that accused Jogender had threatened him and his brother on which he recorded his statement.
(53) The witness has further deposed that on 01.05.2013 he received a call from Trauma Center, Kashmere Gate regarding death of patient Chander Narayan S/o Jogeshwar Rai on which he along with Ct. Harkesh went to Trauma Center and collected the treatment documents and the dead body of the deceased was shifted to BJRM Hospital where it was got preserved in the Mortuary. He has proved having prepared the inquest papers vide Ex.PW21/C (running into 15 pages) and made a request to CMO mortuary for conducting postmortem on the body of the deceased after the body was identified by the relatives of the deceased vide memos Ex.PW12/I and Ex.PW16A. According to him, after the postmortem was conducted the dead body was handed over to its relatives vide memo Ex.PW12/J and after postmortem, doctor handed over to him blood sample in gauze piece and sample seal. Witness has further deposed that the blood sample in gauze St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 34 piece was in sealed envelope sealed with BJRM Hospital Govt. of NCT, Delhi which he seized vide memo Ex.PW20/A and thereafter they returned to Police Station and deposited the pullandas in the Malkhana. He has also deposed that on the same day, he along with Ct. Harkesh again went in search of accused persons and reached at the house No.115, Arjun Mandir Wali Gali and they tried to search accused Pappu but his house was found locked. He has testified that complainant Ashok who was standing near his house came to them and informed that one of his friend has informed that accused Pappu was seen at Azadpur Subzi Mandi on which they joined Ashok Kumar in the investigation. The witness has further deposed that Ashok then took them to Azadpur Subzi Mandi where they searched for the accused Pappu and at about 4:15 PM, when they reached at the Outer Gate of Subzi Mandi complainant Ashok Kumar pointed out towards a person and identified him as accused Pappu. Witness has further deposed that hereafter accused Pappu (whom the witness has identified in the Court) was interrogated wherein he confirmed his identity as Pappu and also his involvement in the present case on which he arrested the accused vide memo Ex.PW12/E and his personal search was carried out which is Ex.PW12/F. According to him, the accused Pappu made his disclosure statement which is Ex.PW12/G and thereafter accused Pappu was got medically examined from BJRM hospital and Ashok was relieved. He has also deposed that thereafter he along with Ct. Harkesh and accused Pappu came to Police Station where accused was kept in lock up and on his return to the Police Station he handed over the police file and the accused to the SHO St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 35 and he recorded the statements of the witnesses and relieved them. He has also deposed that the further investigations were marked to Inspector Rajesh Kumar SHO Police Station Shalimar Bagh. He has correctly identified the accused Joginder and Pappu in the Court.
(54) In his cross examination by Ld. Defence counsel, witness has deposed that when they reached the hospital after receiving the call, he did not find any relative of the injured present with him. According to the witness he did not record the statement of any person in the hospital because there was nobody else with the injured. He has further deposed that he had personally seen the injured in the hospital but when he try to speak to him, he was not speaking because of extreme pain and was only saying darddard. He has also deposed that he did not obtain the fitness from the doctor at that stage and at that time he only came to know that the injured had suffered head injury but did not see anything. According to the witness, between 25.04.2013 and 01.05.2013 he did not go to Trauma Center to inquire about the condition of the injured. He has denied the suggestion that the brother of the injured Hari Narain did not make any statement to him or that he is a planted witness and has been introduced only to lend credibility to the prosecution version. The witness has admitted that the landlord also resides in the same house as that of the injured and the accused. He has also admitted that only the son of the injured was joined in the investigations and of arrest of the accused Jogender but not the landlord. Witness has further admitted that there other persons also also residing in the same building but he did not join them in the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 36 proceedings and has voluntarily explained that most of them were ladies. Witness has further deposed that they remained in the house of the accused for about one hour to one hour fifteen minutes and all the documents of arrest, disclosure etc. were prepared at the house/spot itself. Witness has denied the suggestion that the accused Jogender had himself come to the Police Station from where he was detained and arrested or that all documentations was done while sitting in the Police Station. Witness has denied the suggestion that accused Jogender did not make any disclosure statement nor he pointed out the place of the incident or that the same was recorded and prepared by him of his own. Witness has denied the suggestion that accused was compelled to sign the blank papers which were later on converted into various memos. (55) He has also denied the suggestion that accused Pappu was not arrested in the manner deposed by him or that the signatures of accused Pappu were obtained on several blank papers which were subsequently converted into his arrest memo, personal search memo, disclosure statement etc. Witness has admitted that at the time of arrest of accused Pappu no public person was joined in the investigation. He has testified that the accused Pappu did not try to flee or resist when they apprehended him. He has admitted that no independent public person was join from Subzi Mandi at the time of his apprehension and arrest. Witness has denied the suggestion that Pappu was lifted from his house and not from the Subzi Mandi as deposed by him. Witness has further denied the suggestion that Pappu did not make any disclosure statement or that he recorded the same of his own only to connect St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 37 him with the present case under the pressure of complainant. (56) PW22 Inspector Rajesh Kumar has deposed that on 1.5.2013, he was posted at Police Station Shalimar Bagh and took over the investigation of the present case. According to the witness, the accused Pappu Poddar who was in custody was produced before him by SI Krishan Kumar after which he interrogated the accused Pappu. Witness has further deposed that on 02.05.2013 accused Pappu Poddar pointed out the scene of crime and a pointing out memo was prepared vide Ex.PW22/A after which the accused was produced before the court concerned and was sent to the Judicial Custody. He has also deposed that during the course of investigations he collected the PCR Form, relevant document i.e. medical papers, report of radiology, Postmortem Report etc. and got prepared the scaled site plan on 02.07.2013 from draftsman SI Manohar Lal at the instance of eye witness Ashok Kumar and also collected the scaled site plan. He has further deposed that he recorded statement of witness under Section 161 Cr.P.C and after preparing the charge sheet he filed the same in the court.
(57) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that accused Pappu did not point out any place of incident or that he did not record any statement of witnesses. Witness has further denied the suggestion that no site plan was got prepared by him or that he never visited the place of incident.
(58) PW23 SI Sanjay Kumar has deposed that on 2.5.2013, he was posted at Police Station Shalimar Bagh, Delhi. According to the witness on St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 38 that day, the investigation of the present case was taken over by Inspector Rajesh Kumar Rana and accused Pappu Poddar who was in custody was produced before Inspector Rajesh Rana by SI Krishan. Witness has further deposed that accused Pappu was interrogated by Inspector Rajesh in his presence and on the same day, he had joined the investigation with Inspector Rajesh Rana. According to the witness during investigation, accused Pappu Poddar pointed out the scene of crime and a pointing out memo was prepared by Inspector Rajesh Rana which is Ex.PW22/A after which the accused was produced before the court concerned and was sent to the Judicial Custody. (59) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that accused Pappu did not point out any place of incident. Witness has further denied the suggestion that he had not joined the investigation or that signatures of accused Pappu was obtained on blank paper which was subsequently converted to pointing out memo. STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(60) After completion of prosecution evidence the statements of both the accused Jogender Poddar and Pappu Poddar were recorded under Section 313 Cr.P.C. wherein all the incriminating material was put to them which they have denied. Both the accused Jogender Poddar and Pappu Poddar have stated that they are innocent and have been falsely implicated by the police.
According to the accused, they have not committed any offence as alleged and their signatures were taken on blank papers forcibly by the police which were St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 39 later on converted into various memos including their disclosure statement. They have further stated that all the proceedings of this case have been fabricated by the police to falsely implicate him. However, the accused preferred not to lead any evidence in their defence. FINDINGS:
(61) I have heard the arguments advanced before me by the Ld. Addl.
PP for the State and the Ld. Defence Counsels. I have also gone through the memorandum of arguments filed by both the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
Public witnesses:
1. Ashok Kumar He is the son of the deceased and an eye witness to the
(PW12) incident. He has deposed on the following aspects:
1. That on 24.4.2013 at about 10.30 PM he was
returning from his school when one boy informed him that somebody was about to kill his brother Anil @ Bhulla.
2. That both the accused Jogender Poddar and Pappu Poddar were residing in their neighbourhood and on earlier occasions also many times they used to quarrel with them on minor issues.
3. That on the night of incident, the younger son of accused Joginder Poddar, named Nitish Kumar was sleeping on the roof.
4. That his (witness's) brother Anil @ Bhulla was also sleeping on the roof and on some issue, his brother St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 40 Anil @ Bhulla and Nitish started quarreling with each other.
5. That Nitish informed his father and his brother also informed his father.
6. That accused Pappu brother of Nitish was under the influence of liquor on that night and accused Joginder, Pappu and Nitish entered in his house and started giving beatings to his brother Anil @ Bhulla.
7. That they continued quarreling for about 1520 minutes inside their house and at that time, he was outside his house when some body informed him about the incident.
8. That the accused Joginder Poddar exhorted accused Pappu "Saale ko maar dekh lenge" and thereafter they dragged his brother and his father down stairs while beating and he (witness) was also present there.
9. That in the meantime, his father tried to inform their neighbours about the quarrel but Pappu pushed him with a force due to which his father fell down on a stone and started vomiting blood.
10. That after giving the beatings, all accused persons fled away from the spot.
11. That he picked up the mobile of some other person and called at 100 number on which PCR Van came at spot and took his father to BJRM hospital where he was kept for about threefour hours and then his father was referred to Trauma Center, Kashmere Gate.
12. That he took mobile number of one police official from SI Krishan Kumar and informed the police official available at Trauma Center and when information was given to SI Krishan Kumar, he went to Trauma Center Kashmere Gate.
13. That his father succumbed due to injuries on 1.5.2013 i.e after about eight days from the incident.
14. That his statement was recorded by the Investigating Officer on 24.4.2013 which is Ex.PW12/A. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 41
15. That on 25.4.2013, the police officials came to his house and he got the accused Joginder Poddar arrested from his house vide arrest memo Ex.
PW12/B, his personal search was conducted vide memo Ex.PW12/C after which the accused Joginder Poddar made his disclosure statement which is Ex.PW12/D.
16. That thereafter police took accused Joginder Poddar to Police Station and recorded his statement.
17. That on 1.5.2013, he again joined the investigation with police officials for search of other accused when one of his friend informed him that accused Pappu was available at outer gate of Azadpur Mandi.
18. That thereafter he along with police officials reached at Azadpur Mandi where accused Pappu was found standing and he pointed out towards him.
19. That on his pointing out accused Pappu was arrested vide memo Ex.PW12/E, his personal search was conducted vide memo Ex.PW12/F and accused Pappu made his disclosure statement which is Ex.PW12/G.
20. That at the time of arrest of accused Joginder, his pointing out memo was prepared which is Ex.PW12/H.
21. That on 1.5.2013, he identified the dead body of his father vide his statement Ex.PW12/I and after postmortem they received the dead body of his father vide receipt Ex.PW12/J.
22. That on 2.7.2013, he pointed out the place of incident to the police in detail where Investigating Officer prepared the site plan at his instance.
23. That he was interrogated as to from whose phone he called at 100 number and he informed the police that he had made the call from the mobile of Heera Lal who is resident of 114, Arjun Mandir Wali Gali.
24. That on the day of the incident in the morning while his father was going for work, accused Joginder told his father"dekh loonga saale tujhko" and his father St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 42 told the persons available nearby that "dekho kaise bol raha hai, mai ladai nahi karna chahta".
2. Anil Kumar He is also the son of the deceased and an eye witness to the (PW15) incident. He has deposed on the following aspects:
1. That at the time of incident, he along with his parents were living in the house of Dal Chand in Gali No.10, Arjun Mandir Wali Gali.
2. That both the accused persons i.e. Joginder Poddar and Pappu Poddar were also living in the same premises.
3. That on 24.4.2013 at about 10.00 PM, he came back from his work to his house and went to sleep on their roof.
4. That accused Nitish was also on the roof and the moment he reached on the roof, Nitish abused him by the name of sister.
5. That he told this fact to his father who complained to accused Joginder in this regard on which accused Joginder also started abusing his father on which his father told him not to abuse him and at the same time, accused Pappu came to their house in the room at first floor and attacked his father.
6. That his father ran downstairs to inform their landlord after which both accused started giving beatings to his father and gave fist and kick blows to his father and pushed him with force due to which his father fell on the stone lying there and received head injury.
7. That when his father fell down, both the accused again gave kick and fist blows to his father.
8. That thereafter all the accused persons fled away from the spot and his father vomitted blood.
9. That his brother took mobile of Heera Lal who was present at the spot and called at number 100 from his mobile on which police came at spot and took his father to BJRM hospital.
10. That his father was kept at BJRM hospital for about 1½ hour after which police officials took his father to Trauma Center, Kashmere Gate.
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 43
11. That at Trauma Center he inquired from the Doctor about the condition of his father on which Doctor said that his father would regain consciousness within 1213 hours but his father did not regain consciousness.
12. That the doctor told them that his father would be operated and his father had undergone operation which was permitted by his brother as his mother was weeping.
13. That ultimately on 1.5.2013, his father succumbed to his injuries and thereafter, dead body of his father was brought to the mortuary of BJRM hospital where postmortem examination was done on his body after which the dead body of his father was handed over to them vide receipt Ex.PW15/A and his statement was recorded in BJRM hospital.
3. Hari Kumar He is the brother of the deceased who has deposed on the (PW16) following aspects:
1. That he is residing at house No. C78, gali No. 9, Village Shalimar, Delhi along with his family and he used to help his brother in put a rehri of vegetables and fruits at Pitampura Q Block.
2. That the father of Pappu (i.e. accused Jogender Poddar whom the witness has correctly identified in the Court) had told him on threefour occasions that children of his (witness's) brother used to quarrel with his son and troubling him and therefore he should make them understand otherwise he would not leave them (Papu ke papa ne mujhe kaha ki tumahre bhai ke ladke mere ladke ko pareshan karte hai, unko samja do nahi to chorenge nahi unko).
3. That he was residing separately and therefore after hearing what Jogender Poddar told him, he advised his brother and his sons accordingly.
4. That after threefour days, his nephew came and informed him that the accused Jogender Poddar had quarreled with them and his brother on which his brother had received injuries and had been taken to St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 44 Jahangipuri hospital.
5. That on 01.05.2013 he went to BJRM Hospital and identified the dead body of his brother vide memo Ex.PW16/A and after postmortem examination he received the dead body of his brother vide memo Ex.PW12/J.
4. Heea Lal (PW17) He is a resident of the same area who has deposed on the following aspects:
1. That he knew accused Pappu but he is not known to the father of accused Pappu.
2. That accused Pappu and his family are residing in the house of Dal Chand and the deceased Chander Narayan and his family member were also residing in the house of Dal Chand.
3. That at about 10.00/ 10.30 PM, he was coming to his gali from the Road when he noticed a crowd outside the house of Dal Chand from the distance of about 50 meters.
4. That when he reached near the shop of Parchoon situated in the said gali, Ashok came while running after seeing his phone as there was light in his phone and he asked to hand over his phone to him.
5. That Ashok snatched his phone and made a call at 100 number.
6. That thereafter he snatched his phone from Ashok and when he reached the spot, he noticed the person (who had died in this case) was lying on the ground in injured condition.
However, this witness has resiled from his previous statement given to the police on the following aspects:
1. That both the accused persons were giving beatings to Chander Narayan.
2. That accused Joginder Poddar and Pappu pushed forcefully on the chest of deceased as a result of which Chander Narayan fell in the gali and when he fell on the ground even then, both the accused gave beatings to Chander Narayan with kick and fist blows.
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 45
3. That he had noticed that both the accused persons were giving beatings to Chander Narayan.
4. That accused Joginder Poddar gave a push on the chest of deceased Chander Narayan as a result of which Chander Narayan fell down.
5. That when deceased fell on the ground even then they continued to gave beatings to Chander Narayan with kick and fist.
5. Dal Chand (PW18) He is the landlord of the deceased as well as the accused.
He has deposed on the following aspects:
1. That he is residing at House No. 115, Govind Mohalla, Arjun Wali Gali, Haiderpur, Delhi along with his family and he is original resident of Delhi and he is the owner of house No. 115.
2. That he is employed as a Mali in DDA Horticulture and had given three rooms on the first floor on rent in his house bearing No. 115.
3. That while he is residing in one room, the two rooms were given on rent on the first floor.
4. That one room was given on rent to the accused Jogender Poddar whereas the other room was given to the family of the person who had expired/ deceased who was the father of Ashok.
5. That on 24.4.2013 at about 910 PM at night when he came out of the house, he found Ashok @ Jhanda quarreling with his own father.
6. That he tried to intervene and asked what had happened on which Ashok @ Jhanda told him "Dhaka laga, Papa gir gaye hai".
7. That he told them "haspatal le jao ya police bula lo"
on which Ashok called the police and at that time the father of Ashok was unconscious and after some time the PCR came and shifted the father of Ashok to the hospital.
This witness has however resiled from his earlier statement given to the police on the following aspects:
1. That on 24.04.2013 at around 10:30 PM the accused Jogender Poddar was shouting and telling his son St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 46 Pappu "aaj is sale ko jaan se mar de bake mein dekh loonga".
2. That on hearing these voices he immediately came out of and saw that Chander Narayan was lying in the gali whereas the accused Jogender Poddar was giving him leg blows and when he tried to intervene and save him both Jogender and his son Pappu ran away and it was then that he saw that Chander Narayan became unconscious.
3. That Ashok @ Jhanda had told him that his father had been beaten by the accused and had fallen down and that is why he told them to call the police.
Witness of Medical Record:
6. Dr. Tufail (PW9) This witness has proved that on 25.04.2013 patient Chandar Narain, aged 50 years male was referred to Sushtra Trauma Center for CT Head and after doing CT Head he gave his report which is Ex.PW9/A according to which there were multiple hemorrhagic contusions in left frontoparietal region and SDH along left frontotemporo parietal region causing mid line shift.
7. Dr. Tushit Mewada This witness has proved that on 25.04.2013 patient namely (PW10) Chander Narayan S/o Sh. Jogeshwar Rai, aged 50 years male was referred to Sushruta Trauma Center by BJRM Hospital with alleged history of Physical Assault and in the Casualty initially the patient was examined by CMO Dr. Deepak Chugh and thereafter the patient was referred in Neurosurgery where Dr. Ankit Mathur examined the patient vide MLC No. 58312 of BJRM Hospital which is Ex.PW10/A according to which after examining the patient, Dr. Ankit declared the patient as Unfit for statement.
8. Dr. S. Kuki (PW11) This witness has proved that on 28.04.2013 he examined the patient namely Chander Narayan S/o Sh. Jogeshwar Rai, aged 50 years male vide MLC Ex.PW10/A who was referred to ENT Department and after examination he gave his observations that patient was Unfit for Statement which observations are mentioned on the MLC Ex.PW10/A at encircled portion Y. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 47
9. Dr. Yogesh Verma This witness has proved that on 01.05.2013 Dr. Kanika (PW13) Chandra prepared the death summary of deceased Chander Narayan, aged 50 years male, which death summary is Ex.PW13/A. He has also proved that Dr. Kanika Chandra prepared the death certificate in respect of the same copy of which is Ex.PW13/B.
10. Dr. Bhim Singh He is the Autopsy Surgeon who has proved having conducted (PW14) the Postmortem examination on the dead body of the deceased on 01.05.2013 vide report Ex.PW14/A. He has proved that on examination he found following external injuries on the body of the deceased:
1. Surgical stitched wound measuring 29 cm starting from middle of forehead, parietal, occipital to upto net temporal region.
2. Scared abrasion 3 cm x 2cm over occipital region.
He has also proved that on internal examination of head and neck there was presence of operation mark measuring approximately 10cm x 8cm underlying brain shows SDH and pus at places, brain was edematous; on examination of Chest both lungs were congested, edematous on cut section shows frothy purulent pus with consolidation at places and on examination of Abdomen and Pelvis all the organs were congested and Stomach was empty.
This witness has proved having opined that Death was due to coma and shock consequent upon head injury and septicemia; all the injuries were antemortem and could be caused by blunt/surface impact and time since death as per hospital record i.e. about four hours. On a specific Court Question the witness has explained that in his view the nature of injury is such that it is likely to cause the death of the person to whom the harm is caused.
He has also explained that the death of the deceased was on account of supervening factors and has voluntarily explained that he had developed septicemia after the operation. He has further explained that the head injury i.e. injury No.1 could be possible on account of a fall on a blunt hard surface.
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 48
11. Dr. Deepak Chugh This witness has deposed that on 24.04.2013 he was posted (PW24) at BJRM Hospital as CMO and on that day at about 11:55 PM patient namely Chander Narayan S/o Jogeshwar Rai, aged around 50 years male was brought in the casualty of the hospital by ASI Jai Bhagwan of PCR official with alleged history of physical assault. He has proved that initially patient was examined by Dr. Bishwanath, JR Casualty under his supervision vide MLC No. 58312/13 which is Ex.PW10/A and after examining the patient Dr. Bishwanath referred the patient to SR Surgery and ENT OPD. This witness has also proved that according to the MLC at the time of examination patient was conscious, oriented with stable vitals and on local examination there was a abrasion over occipital region. Witness has further proved that there was history of vomiting and nasal bleed and loss of consciousness when the patient was brought in the casualty.
Police / Official witnesses:
12. Inspector Manohar He is a formal witness being the Draftsman who has proved Lal (PW1) having prepared the scaled site plan which is Ex.PW1/A.
13. HC Pawan Kumar He is also a formal witness being the Duty Officer who has (PW2) proved that on 24.4.2013 at 10:48 PM a PCR call was received regarding a quarrel in Gali No.10, Shalimar Bagh on which he lodged DD No. 49A copy of which is Ex.PW2/B.
14. HC Mahabir He is a formal witness who has proved DD No. 50 B copy of (PW3) which is Ex.PW3/A; DD No. 67B copy of which is Ex.PW3/B and the PCR Forms which are Ex.PW3/C and Ex.PW3/D.
15. ASI Jitender (PW4) He is is a formal witness being the Duty Officer who has proved the DD No.21A copy of which is Ex.PW4/A, copy of FIR which is Ex.PW4/B and his endorsement on rukka which is Ex.PW4/C.
16. ASI Jai Bhagwan He is a formal witness who has proved that on 24.4.2013 at (PW5) about 10:4510:50 PM while he was on the main road near Gali No.10 some people were having an injured and informed that they had called the PCR. He has further proved that he St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 49 came to know the name of injured as Chander Narayan, after which he transmitted the facts to Control Room at about 10:55 PM and on the directions of Control Room he along with staff removed the injured to BJRM Hospital and at that time his son Ashok was also there and admitted the injured there.
17. Ct. Manoj Kumar He is a formal witness being the PCR Official who has (PW6) proved the PCR Form which is Ex.PW3/D.
18. Ct. Ravi Kumar He is a formal witness being the DD Writer who has proved (PW7) having lodged DD No. 15B copy of which is Ex.PW7/A.
19. W/Ct. Savita (PW8) He is a formal witness being the PCR Official who has proved the PCR Form which is Ex.PW3/C.
20. Ct. Raju (PW19) This witness has deposed on the following aspects:
1. That on 24.04.2013 at about 10:5011 PM he accompanied SI Krishan Kumar on the call vide DD No. 48A which is Ex.PW2/A and reached at house No. 115, Arjun Mandir Wali Gali, Haiderpur where he came to know that the injured had already been shifted to BJRM Hospital by the PCR.
2. That thereafter he along with SI Krishan reached BJRM Hospital from where he obtained the MLC of Chander Narayan resident of House No. 115, Arjun Mandir Wali Gali, Haiderpur where SI Krishan tried to record the statement of the injured but he was not in a position to make a statement being in extreme pain and refused to make a statement.
3. That in the meanwhile the doctors of BJRM had referred him to bigger hospital after which they returned to the Police Station.
4. That on 25.04.2013 Duty Officer ASI Jitender handed over to him a rukka and the copy of the present FIR and directed him to take the same to the house No. 115, Arjun Mandir wali gali, Haiderpur and to hand over the same to SI Krishan Kumar.
5. That when he reached the spot he handed over the copy of the FIR and the tehrir to SI Krishan and also met Ashok in the house.
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 50
6. That on the pointing out of Ashok the accused Jogender was apprehended and arrested from his house.
7. That the accused Jogender was interrogated and thereafter the Investigating Officer arrested him vide memo Ex.PW12/B and his personal search was conducted vide memo Ex.PW12/C.
8. That after interrogation his disclosure statement was also recorded vide memo Ex.PW12/D and the accused then pointed out the place of the incident to them on which Investigating Officer prepared the pointing out memo which is Ex.PW12/H.
9. That thereafter they took him to BJRM Hospital where his medical examination was got conducted and thereafter he was brought back to Police Station Shalimar Bagh and put in the lock up.
10. That his statement was recorded in the Police Station and he was relieved.
He has correctly identified the accused Jogender Poddar in the Court.
21. Ct. Harkesh This witness has deposed on the following aspects:
(PW20) 1. That on 1.5.2013 he was on Emergency Duty along with SI Krishan at Police Station Shalimar Bagh, Delhi.
2. That at about 8.00 AM, SI Krishan received a call from Trauma Center, Kashmere Gate regarding death of a patient Chander Narayan S/o Jogeshwar Rai.
3. That on receipt of said information, he along with SI Krishan went to Trauma Center after which Investigating Officer SI Krishan Kumar collected the treatment documents and took the dead body.
4. That thereafter body was got preserved in the Mortuary of BJRM Hospital where Investigating Officer prepared inquest proceedings and got the postmortem done on the dead body.
5. That Investigating Officer recorded the statement of relative of deceased regarding the identification of dead body vide memo Ex.PW16/A. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 51
6. That after postmortem the dead body was handed over to the relatives of deceased vide memo Ex.PW12/J and after postmortem, doctor handed over blood sample in gauze piece and sample seal.
7. That the blood sample in gauze piece was in sealed envelope sealed with BJRM Hospital Govt. of NCT Delhi which Investigating Officer seized vide memo Ex.PW20/A and thereafter, they returned to Police Station.
8. That on the same day, they again went in search of accused persons and reached at the house No.115, Arjun Mandir Wali Gali and they tried to search for the accused Pappu but his house was found locked.
9. That complainant Ashok who was standing near his house came to them and told them that one of his friend has informed that accused Pappu is seen at Azadpur Subzi Mandi.
10. That thereafter they joined Ashok Kumar in the investigation and took them to the Azadpur Subzi Mandi where they search for accused Pappu.
11. That at about 5.00 PM, when they reached at the Outer Gate of Subzi Mandi, Ashok Kumar pointed out towards a person and identified him as accused Pappu.
12. That thereafter accused Pappu was arrested vide memo Ex.PW12/E and his personal search was carried out which is Ex.PW12/F.
13. That accused Pappu made his disclosure statement vide Ex.PW12/G after which accused Pappu got medically examined from BJRM Hospital and Ashok was discharged.
14. That thereafter he along with Investigating Officer and accused Pappu came to Police Station where accused was kept in lock up and his statement was recorded by Investigating Officer.
He has correctly identified the accused Pappu in the Court.
22. SI Krishan Kumar This witness has deposed on the following aspects:
(PW21) 1. That on 24.04.2013 at about 10:48 PM he received DD No. 48A which is Ex.PW2/A pursuant to which St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 52 he along with Ct. Raju he reached at House No. 115, Arjun Mandir Wali Gali, Haiderpur where he came to know that the injured had already shifted to BJRM Hospital by the PCR.
2. That thereafter he along with Ct. Raju reached BJRM Hospital from where he met Chander Narayan a resident of House No. 115, Arjun Mandir Wali Gali, Haiderpur who was admitted in the Emergency and tried to record the statement of the injured but he was not speaking because of the pain.
3. That at night he again went to the BJRM Hospital and came to know that he had been referred to Trauma Center and he then deposited the MLC to the doctor with a request to give the opinion with regard to the condition of the injured on which the doctor opined that he was unfit for statement.
4. That meanwhile Ashok the son of the injured also came to the hospital and he recorded his statement.
5. That he then returned to the Police Station and made his endorsement on the statement of Ashok which is Ex.PW12/A which endorsement is Ex.PW21/A.
6. That after handing over the same to Duty Officer he went back to the spot where he met Ashok who had returned from the hospital and was present in the room and when they checked the adjoining room of Jogender Poddar it was locked.
7. That Ashok then pointed out the spot on which the incident had taken place and on his pointing out he (witness) prepared the site plan Ex.PW21/B.
8. That in the meanwhile Ct. Raju came to the spot and handed over the copy of the FIR and original rukka to him.
9. That Ashok also came down from his room and informed that Jogender Poddar had come back to his room and on his pointing out he interrogated the accused Jogender Poddar and then arrested him vide memo Ex.PW12/B and his personal search was conducted vide memo Ex.PW12/C. St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 53
10. That after interrogation his disclosure statement was also recorded vide Ex.PW12/D.
11. That the accused then pointed out the place of incident to them on which he prepared the pointing out memo which is Ex.PW12/H.
12. That thereafter they took him to BJRM Hospital where his medical examination was got conducted and thereafter the accused was brought back to Police Station Shalimar Bagh and put in the lock up and on the next the day the accused was produced before the court of Ld. MM and got remanded to Judicial Custody.
13. That on 26.04.2013 the brother of Chander Narayan namely Hari Kumar came to the Police Station and told him that accused Jogender had threatened him and his brother on which he recorded his statement.
14. That on 01.05.2013 he received a call from Trauma Center, Kashmere Gate regarding death of patient Chander Narayan S/o Jogeshwar Rai on which he along with Ct. Harkesh went to Trauma Center and collected the treatment documents and the dead body of the deceased was shifted to BJRM Hospital where it was got preserved in the Mortuary.
15. That he prepared the inquest papers vide Ex.PW21/C (running into 15 pages) and made a request to CMO mortuary for conducting postmortem on the body of the deceased after the body was identified by the relatives of the deceased vide memos Ex.PW12/I and Ex.PW16/A.
16. That after the postmortem was conducted the dead body was handed over to its relatives vide memo Ex.PW12/J and after postmortem, doctor handed over to him blood sample in gauze piece and sample seal.
17. That the blood sample in gauze piece was in sealed envelope sealed with BJRM Hospital Govt. of NCT, Delhi which he seized vide memo Ex.PW20/A and thereafter they returned to Police Station and deposited the pullandas in the Malkhana.
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 54
18. That on the same day, he along with Ct. Harkesh again went in search of accused persons and reached at the house No.115, Arjun Mandir Wali Gali and they tried to search for the accused Pappu but his house was found locked.
19. That complainant Ashok who was standing near his house came to them and informed that one of his friend has informed that accused Pappu was seen at Azadpur Subzi Mandi on which they joined Ashok Kumar in the investigation.
20. That Ashok then took them to Azadpur Subzi Mandi where they searched for the accused Pappu and at about 4:15 PM, when they reached at the Outer Gate of Subzi Mandi complainant Ashok Kumar pointed out towards a person and identified him as accused Pappu.
21. That hereafter accused Pappu (whom the witness has identified in the Court) was interrogated wherein he confirmed his identity as Pappu and also his involvement in the present case on which he arrested the accused vide memo Ex.PW12/E and his personal search was carried out which is Ex.PW12/F.
22. That the accused Pappu made his disclosure statement which is Ex.PW12/G and thereafter accused Pappu was got medically examined from BJRM hospital and Ashok was relieved.
23. That thereafter he along with Ct. Harkesh and accused Pappu came to Police Station where accused was kept in lock up and on his return to the Police Station he handed over the police file and the accused to the SHO and he recorded the statements of the witnesses and relieved them.
24. That the further investigations were marked to Inspector Rajesh Kumar SHO Police Station Shalimar Bagh.
He has correctly identified the accused Joginder and Pappu in the Court.
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 55
23. Inspector Rajesh This witness has deposed on the following aspects:
Kumar (PW22) 1. That on 1.5.2013, he was posted at Police Station Shalimar Bagh and took over the investigation of the present case.
2. That the accused Pappu Poddar who was in custody was produced before him by SI Krishan Kumar after which he interrogated the accused Pappu.
3. That on 02.05.2013 accused Pappu Poddar pointed out the scene of crime and a pointing out memo was prepared vide Ex.PW22/A after which the accused was produced before the court concerned and was sent to the Judicial Custody.
4. That during the course of investigations he collected the PCR Form, relevant document i.e. medical papers, report of radiology, Postmortem Report etc.
5. That he got prepared the scaled site plan on 02.07.2013 from draftsman SI Manohar Lal at the instance of eye witness Ashok Kumar and also collected the scaled site plan.
6. That he recorded statement of witness under Section 161 Cr.P.C and after preparing the charge sheet he filed the same in the court.
24. SI Sanjay Kumar This witness has deposed on the following aspects:
(PW23) 1. That on 2.5.2013 the investigation of the present case was taken over by Inspector Rajesh Kumar Rana and accused Pappu Poddar who was in custody was produced before Inspector Rajesh Rana by SI Krishan.
2. That accused Pappu was interrogated by Inspector Rajesh in his presence and on the same day, he had joined the investigation with Inspector Rajesh Rana.
3. That during investigation accused Pappu Poddar pointed out the scene of crime.
4. That a pointing out memo was prepared by Inspector Rajesh Rana which is Ex.PW22/A after which the accused was produced before the court concerned and was sent to the Judicial Custody.
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 56 (62) Coming now to the microscopic evaluation of the evidence against the accused persons.
Medical Evidence:
(63) The case of the prosecution is that the accused and the deceased Chander Narayan were residing in the same premises on rent which premises belongs to Dal Chand and there were frequent quarrels between them on small issues. It has been alleged that on the date of incident i.e. 24.4.2013 the accused Jogender Poddar and Pappu Poddar gave beatings to Chander Narayan thereby causing his death on 1.5.2013. Initially the injured was admitted in BJRM Hospital and later he was shifted to Shushrut Trauma Center but he succumbed to injures and expired on 1.5.2013. In support of its case the prosecution has placed its reliance on the testimonies of Dr. Tufail (PW9), Dr. Tushit Mewada (PW10), Dr. S. Kuki (PW11), Dr. Yogesh Verma (PW13), Dr. Bhim Singh (PW14) and Dr. Deepak Chugh (PW24) and the documents proved by them.
(64) Coming first to the testimony of Dr. Deepak Chugh (PW24) who has proved that on 24.04.2013 at about 11:55 PM one patient namely Chander Narayan S/o Jogeshwar Rai, aged around 50 years was brought to the BJRM Hospital by ASI Jai Bhagwan of PCR official with alleged history of physical assault. He has further proved that initially the patient was examined by Dr. Bishwanath, JR Casualty under his supervision vide MLC Ex.PW10/A and examining the patient Dr. Bishwanath referred the patient to SR Surgery St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 57 and ENT OPD. As per the MLC at the time of examination the patient was conscious, oriented with stable vitals and on local examination there was an abrasion over occipital region; there was history of vomiting and nasal bleed and loss of consciousness when the patient was brought in the casualty.
(65) Similarly, Dr. Tushit Mewada (PW10) has proved that on 25.04.2013 patient Chander Narayan S/o Sh. Jogeshwar Rai, aged 50 years male was referred to Sushruta Trauma Center by BJRM Hospital with alleged history of Physical Assault. He has proved the MLC which is Ex.PW10/A according to which after examining the patient Dr. Ankit declared the patient as Unfit for statement which observations are mentioned at encircled portion X. On 25.4.2013 the CT Head of the injured Chander Narayan was also done and Dr. Tufail (PW9) has deposed that on 25.04.2013 he conducted the CT Head examination of the injured Chander Narayan vide his report which is Ex.PW9/A according to which there were multiple hemorrhagic contusions in left frontoparietal region and SDH along left fronto temporo parietal region causing mid line shift.
(66) Again on 28.4.2013 the patient was found unfit for statement and Dr. S. Kuki (PW11) has proved that on 28.4.2013 he examined the patient namely Chander Narayan S/o Sh. Jogeshwar Rai vide MLC Ex.PW10/A who was referred to ENT Department. He has proved having given his observations that patient was unfit for statement which observations are St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 58 mentioned on the MLC Ex.PW10/A at encircled portion Y. (67) Dr. Yogesh Verma (PW13) has proved that on 01.05.2013 Dr. Kanika Chandra prepared the death summary of deceased Chander Narayan vide Ex.PW13/A and also prepared the Death Certificate in respect of the same copy of which is Ex.PW13/B. (68) After his death the postmortem examination was conducted on the body of Chander Narayan and Dr. Bhim Singh (PW14) is the Autopsy Surgeon who has proved having conducted the postmortem examination on the body of the deceased Chander Narayan vide Postmortem Report Ex.PW14/A according to which there were following external injuries on the body of the deceased:
1. Surgical stitched wound measuring 29 cm starting from middle of forehead, parietal, occipital to upto net temporal region.
2. Scared abrasion 3 cm x 2cm over occipital region.
(69) He has proved having opined that Death was due to coma and shock consequent upon head injury and septicemia; all the injuries were antemortem and could be caused by blunt/surface impact and time since death as per hospital record about four hours. He has explained that the nature of injury is such that it is likely to cause the death of the person to whom the harm is caused.
(70) In his cross examination Dr. Bhim Singh has explained that the injured was conscious and oriented when he admitted in the hospital but later St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 59 due to subdural haematoma he lost his consciousness and never regain consciousness thereafter. He has also admitted that the head injury i.e. injury No.1 could be possible on account of a fall on a blunt hard surface. He has further admitted that death of the deceased was on account of supervening factors and has explained that the injured had developed septicemia after the operation.
(71) The defence has not been able to controvert the above medical evidence which has come on record. Therefore, I hereby hold that the Medical Evidence on record is compatible to the prosecution case that the death of the deceased was caused by blunt/surface impact but in so far as the intention of the accused to cause death is concerned, the same is not reflected from the injuries. Rather, the Medical Evidence confirms that the death took place after eight days of the incident and this head injury was such as is likely to cause the death of the person to whom harm is caused though later the death was caused due supervening circumstances i.e. Septicemia. Motive of the Crime/ Common Intention:
(72) The case of the prosecution is that both the parties i.e. the accused and the deceased were residing on rent in the same premises belonging to Dal Chand and there were frequent quarrels between the parties. Even on previous occasion the accused Jogender Poddar who is the father of accused Pappu Poddar and Nitish had threatened that in case if they do not stop quarreling he would deal with them appropriately. It is alleged by the prosecution that on the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 60 date of incident both the accused Jogender Poddar and Pappu Poddar in furtherance of their common intention committed the murder of the deceased.
In this regard the prosecution has relied upon the testimonies of family members of the deceased including his brother Heera Lal who has been examined as PW16.
(73) However, before coming to the evidence on merits I may observe that the Motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
(74) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 61 circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
(75) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].
(76) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(77) In so far as the aspect of Common Intention shared by both the accused is concerned, I may observe that Section 34 Indian Penal Code has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 62 offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if pre arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all"
nor does it say "an intention common to all". Under the provisions of Section St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 63 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P. reported in 2004(3) SCC 793 and reference in this regard is also being made to the decision of the Delhi High Court in the case of Mohd. Saleem Vs. State, Crl. Appeal No. 484/2011 decided on 31.5.2013 by the Bench headed by Hon'ble Mr. Justice Sanjiv Khanna.
(78) Applying the settled principles of law to the facts of the present case, coming now to the testimony Hari Kumar (PW16). He has specifically deposed that the father of accused Pappu (i.e. Jogender Poddar whom the witness has correctly identified in the Court) had told him on threefour St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 64 occasions that children of his (witness's) brother used to quarrel with his son and troubling him and therefore he should make them understand otherwise he would not leave them (Papu ke papa ne mujhe kaha ki tumahre bhai ke ladke mere ladke ko pareshan karte hai, unko samja do nahi to chorenge nahi unko). He has explained that he was residing separately and therefore after hearing what Jogender Poddar told him, he advised his brother and his sons accordingly. Further, the son of the deceased Chander Narayan i.e. Ashok Kumar (PW12) who is also the complainant in the present case has specifically deposed in the Court on earlier occasions also the accused used to quarrel with them on minor issues.
(79) I may observe that it is a settled law that the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent with the hypothesis of the guilt of the accused. In the present case the history of hostility between the parties, particularly between the children stands established. Though it is alleged that the incident of killing the deceased Chander Narayan was on account of the previous background of hostility which existed between the parties.
(80) In so far as the evidence on record is concerned, considering the totality of circumstances, it establishes the extent of hostilities and the frequent quarrels between the parties but certainly does not conclusively St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 65 establish that the accused Jogender Poddar and Pappu Poddar had entertained an intention to cause the death of the deceased, though the motive was to teach Chander Narayan and his sons a lesson. Further, it stands established from the testimony of eye witness Ashok Kumar (PW12) that the accused Pappu Poddar was under the influence of liquor at the time of the incident which fact has gone uncontroverted and it was accused Jogender Poddar who exhorted his son i.e. the accused Pappu Poddar to hit Chander Narayan, rest he will see when he said "aaj is sale ko jaan se mar de baki mein dekh loonga". The son of the deceased Chander Narayan namely Ashok Kumar (PW12) has also explained that even in the morning the accused Joginder was instigating his father, while his father was going for his work when accused Joginder threatened his father saying that he would see him (dekh loonga saale tujhko) on which his father informed the persons available nearby that he did not want a quarrel (dekho kaise bol raha hai, mai ladai nahi karna chahta). The manner in which the incident had taken place shows the common intention of both the accused. Both the accused Jogender Poddar and Pappu Poddar first entered the room of the deceased and started beating him and while the deceased came downstairs, both the accused followed him and also gave legs and fist blows on him. While the accused fell down in the street even then the accused did not stop and mercilessly gave beatings to the deceased. The facts of the case speak for themselves. The manner in which both the accused Jogender Poddar and Pappu Poddar acted in consortium and the manner in which the entire incident had transpired conclusively establishes the Common St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 66 Intention shared by the accused Jogender Poddar and Pappu Poddar.
Ocular Evidence:
(81) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
(82) In the present case the entire case of the prosecution revolves around the testimonies of sons of the deceased Chander Narayan i.e. Ashok Kumar (PW12), Anil Kumar (PW15) and Hari Kumar (PW16) the brother of the deceased. The prosecution has also placed its reliance on the testimonies of Heera Lal (PW17) a resident of the same area whose mobile phone was used for making a call at 100 number and on the testimony of landlord Dal Chand (PW18) who unfortunately have not completely supported their earlier version.
(83) Since the prosecution is placing its heavy reliance on the testimonies of Ashok Kumar (PW12), Anil Kumar (PW15) and Hari Kumar (PW16) hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 67 even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978). (84) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 68 courage to depose against habitual criminal apprehending threats to their life.
A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965). (85) Applying the settled principles of law to the facts of the present case and coming first to the testimony of Ashok Kumar (PW12) who is the son of the deceased and an eye witness to the incident, the relevant portion of his testimony is as under:
".......... On 24.4.2013, at about 10.30pm, I was returning from my school.
At this stage, witness started weeping.
One boy informed me that somebody is about to kill my brother Anil @ Bhulla. Both the accused present in the court today were residing in our neighbourhood. On earlier occasions also many times they used to quarrel with us on minor issues. On the night of incident, the younger son of accused Joginder Poddar, named Nitish Kumar was sleeping on the roof. My brother Anil @ Bhulla was also sleeping on the roof. On some issues, my brother Anil @ Bhulla and Nitish started quarreling with each other. Nitish informed his father and my brother also St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 69 informed my father. Accused Pappu brother of accused Nitish was under the influence of liquor on that night. Accused Joginder, Pappu and Nitish entered in my house and started giving beatings to my brother Anil @ Bhulla. They continued quarreling for about 1520 minutes inside our house. At that time, I was outside my house and some body informed me about the incident. Accused Joginder Poddar exhorted accused Pappu "Saale ko maar dekh lenge". They dragged my brother and my father down stairs while beating. I was also present there. In the meantime, my father tried to inform our neighbour about the quarrel but Pappu pushed him with a force due to which my father fell down on a stone and started vomiting blood. I picked up the mobile of some other person and called at 100 number. PCR van came at spot and took my father to BJRM hospital where he was kept for about 34 hours, thereafter my father was referred to Trauma Center, Kashmere Gate. I took a number of one police official from SI Krishan Kumar and informed the police official available at Trauma Center.
After giving the beatings, all accused persons fled away from the spot.
When I informed SI Krishan Kumar, he came in Trauma Center Kashmere Gate. My father succumbed due to injuries on 1.5.2013 i.e after about 8 days from the incident. My statement was recorded by IO on 24.4.2013 which is Ex.PW12/A bearing my signatures at point A. On 25.4.2013, police officials came to my house and I got arrested the accused Joginder Poddar from his house vide arrest memo Ex.PW12/B bearing my signatures at point A, his personal search was conducted vide memo Ex.PW12/C bearing my signatures at point A. Accused Joginder Poddar made his disclosure statement which is St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 70 Ex.PW12/D bearing my signatures at point A. Thereafter, police took accused Joginder Poddar to police station and recorded my statement.
On 1/5/2013, I again joined the investigation with police officials for search of other accused. One of my friend informed me that accused Pappu is available at outer gate of Azadpur Mandi. Thereafter, I along with police officials reached at Azadpur Mandi where accused Pappu was found standing and I pointed out towards him. On my pointing out, accused Pappu was arrested vide memo Ex.PW12/E bearing my signatures at point A. His personal search was conducted vide memo Ex.PW12/F, bearing my signatures at point A. Accused Pappu made his disclosure statement which is Ex.PW12/G, bearing my signatures at point A. At the time of arrest of accused Joginder, my pointing out memo was prepared which is Ex.PW12/H, bearing my signatures at point A. On 1.5.2013, I identified the dead body of my father vide my statement Ex.PW12/I, bearing my signatures at point A. After postmortem, we received the dead body of my father vide receipt Ex.PW12/J, bearing my signatures at point A. On 2.7.2013, I pointed out the place of incident to the police in detail where IO prepared the site plan at my instance.
I was interrogated as to from whom phone I call at 100 number. I informed the police that I had made the call from the mobile of Heera Lal who is resident of 114, Arjun Mandir Wali gali. On the day of incident in the morning while my father was going for work, accused Joginder told my father "dekh loonga saale tujhko". My father told the persons available nearby that "dekho kaise bol raha hai, mai ladai nahi karna chahta"....."
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 71
(86) Ashok Kumar (PW12) has been exhaustively crossexamined by the Ld. Defence Counsel wherein he has explained that the roof of Pappu and their roof is a common roof. He has further explained that the quarrel started at his house at about 10:00 PM and at that time there were only sixseven persons. He has further deposed that he tried to catch Pappu but Pappu managed to escape. He has also explained that on the way to Hospital his father was speaking and was conscious. The witness has further explained that they never lodged any complaint with police regarding earlier minor issues raised by accused since his father never paid any heed to those issues. (87) Coming next to the testimony of Anil Kumar (PW15) the son of the deceased and also an eye witness to the incident with whom the initial incident of quarrel took place the relevant portion of his testimony is as under:
"......... At the time of incident, I along with my parents were living in the house of Dal Chand in Gali No.10, Arjun Mandir wali gali. Both the accused persons present in court today were also living in the same premises. On 24.4.2013, at about 10.00pm, I came back from my work to my house and I went to sleep on our roof, accused Nitish was also on the roof the moment I reached on the roof. He abused me by the name of my sister. I told this fact to my father and my father complained to accused Joginder in this regard. Accused Joginder started abusing my father. My father told him not to abuse him. At the same time, accused Pappu came to our house in the room at first floor and attacked my father. My father ran down stairs to inform our landlord. Thereafter, both accused started giving beatings to my father.
At this stage, witness started weeping.
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 72 Both the accused gave fist and kick blows to my father and pushed him with force due to which my father fall on the stone lying there and received head injury. When my father fell down, both the accused again gave kick and fist blows to my father. Thereafter, all the accused persons fled away from the spot. My father vomitted blood. My brother took mobile of Heera Lal who was present at the spot and called at number 100 from his mobile. Police came at spot and took my father to BJRM hospital. My father was kept at BJRM hospital for about 1 ½ hour. Thereafter, police officials took my father to Trauma Center, Kashmere Gate. At trauma center, I inquired from Doctor about the condition of my father, Doctor said that my father will regain consciousness within 1213 hours. My father did not regain consciousness and doctor told us that my will be operated. My father had undergone operation which was permitted by my brother as my mother was weeping. Ultimately on 1.5.2013, my father succumbed due to his injuries. Thereafter, dead body of my father was brought to the mortuary of BJRM hospital where postmortem examination was done on his body and after that dead body of my father was handed over to us vide receipt Ex.PW15/A, bearing my signatures at point A. My statement was recorded in BJRM hospital......."
(88) Anil Kumar (PW15) has also been crossexamined by the Ld. Defence Counsel, wherein he has explained that he and his brother did not stop both the accused as they had also beaten him and his brother. He has also explained that at the time when both the accused were beating them, his father went to inform their landlord but they did not allow his father to inform the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 73 landlord and beat him on the way. He has further explained that the quarrel took place at the first floor of his house and his mother was not present at the time of the incident.
(89) In so far as the witness Heera Lal (PW17) is concerned he has not supported his earlier version given to the police on the aspect of identity of the accused persons but has admitted that it was Ashok who had come while running and took his mobile phone and made a call at 100 number to the police. He has, however, not supported his earlier version given to the police to the effect that the accused Jogender Poddar and Pappu Poddar pushed Chander Narayan on his chest as a result of which Chander Narayan fell down in the gali and even thereafter both the accused gave beatings to Chander Narayan. Hence, it is Heera Lal who independently confirms the presence of Ashok at the place of the incident.
(90) Further, in so far as the landlord Dal Chand (PW18) is concerned he has turned hostile and has not supported his earlier version given to the police regarding the incident but has confirmed the presence of Ashok son of Chander Narayan. He has proved that he had given one room on rent to the accused Jogender Poddar and one room to the father of Ashok (i.e. deceased Chander Narayan). He has given a twist to the case stating that in the night when he came out of the house, he found Ashok quarreling with his own father and when he asked what had happened on which Ashok informed him that his father had been pushed and he fell down on which he advised him to shift him to the Hospital or call the police and thereafter Ashok made a call to St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 74 the police. According to him at that time father of Ashok was unconscious. He has turned hostile on the earlier version given by him to the police that the accused Jogender Poddar was shouting exhorting his son Pappu to finish Jogender, later he will see (aaj is sale ko jaan se mar de baki mein dekh loonga) and on hearing this voices he immediately came out and saw that Chander Narayan was lying in the gali whereas the accused Jogender Poddar was giving leg blows and when he tried to intervene both Jogender and Pappu ran away.
(91) Understandably in so far as Heera Lal is concerned, he is a resident of the same area where the family of the accused still continue to reside whereas Dal Chand is the landlord and are known to both the parties being neighbours and the family of accused continues to reside in his house as tenants even after the incident. It will be worthwhile to mention that in so far as the depositions of Ashok Kumar (PW12) and Anil Kumar (PW15) on the manner in which the incident had taken place is concerned, it has remained completely unimpeached at the altar of cross examination on the part of accused and the witnesses Heera Lal (PW17) and Dal Chand (PW18) having not supported their earlier versions could also be deliberate in view of the fact that as a matter of experience such witnesses who are neighbours, friends, relatives or otherwise closely associated with accused choose to side with the accused rather than the prosecution.
(92) Both the eye witnesses i.e. Ashok Kumar (PW12) and Anil Kumar (PW15) who are the sons of the deceased have explained the manner in which St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 75 the incident had taken place and attributed specific role to both the accused. From a combined reading of the testimonies of both these witnesses would show that the following aspects stand established:
➢ That Jogender Poddar and Pappu were residing in the same building as that of the deceased Chander Naraian and his family. ➢ That there were frequent quarrels between the family of the deceased and the accused on minor issues particularly between the children. ➢ That on 24.4.2013 morning there was a quarrel i.e. verbal altercation between the accused Jogender on one side and Chander Narayan on the other side, when Chander Narayan was going for work in the morning Jogender said to Chander Narayan to see him by saying "dekh loonga saale tujhko" on which Chander Narayan told the persons available nearby that he did not want to quarrel (dekho kaise bol raha hai, mai ladai nahi karna chahta).
➢ That on the same day i.e. 24.4.2013 at around 10:00 PM Anil Kumar S/o Chander Naraian went to sleep on the roof of his room where Nitish S/o Jogender Poddar was already present there and both of them started quarreling with each other.
➢ That Anil Kumar informed his father Chander Narayan about the same and Nitish also informed his father Jogender Poddar. ➢ That accused Pappu who is the brother of accused Nitish was under the influence of liquor and soon Jogender Poddar and Pappu Poddar entered the room of the deceased Chander Narayan and gave beatings to St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 76 Anil Kumar @ Bhulla.
➢ That accused Jogender Poddar exhorted accused Pappu to kill Anil and Chander Narayan by saying "aaj is sale ko jaan se mar de baki mein dekh loonga" after which both the accused Jogender Poddar and Pappu Poddar gave a thrashing to both Chander Narayan and Anil and dragged both Anil Kumar and Chander Narayan outside their rooms downstairs while beating.
➢ That Chander Narayan tried to seek help from the neighbours including landlord and inform them about the quarrel but in the meanwhile both the accused Jogender Poddar and Pappu Poddar gave fist and kick blows to Chander Narayan and pushed him with a force due to which he fell on the cemented floor and received head injury. ➢ That both the accused Jogender Poddar and Pappu Poddar continued to give kick and fist blows to Chander Narayan even after he fell down and vomitted blood after which they fled away from the spot. ➢ That a call at 100 number was made by Ashok Kumar from the mobile phone of Heera Lal after which PCR Van came to the spot and the injured Chander Narayan was shifted to BJRM Hospital. ➢ That the injured Chander Narayan was thereafter shifted to Shushrut Trauma Center but did not regain consciousness and succumbed to injuries on 1.5.2013.
(93) Ld. Defence Counsel has pointed out the various contradictions and discrepancies in the testimonies of both the eye witnesses i.e. Ashok St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 77 Kumar (PW12) and Anil Kumar (PW15). In this regard I may observe that in the case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) and Leela Ram Vs. State of Haryana reported in AIR 19997 SC 3717 the Hon'ble Supreme Court has observed that ordinarily it so happens that a witness is overtaken by events and the witness could not have anticipated the occurrence which so often has an element of surprise and his mental faculties therefore cannot be expected to be attuned to absorb the details. The powers of observation differ from person to person and what one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(94) Further, in so far as the discrepancies in the testimonies of the various police witnesses are concerned with regard to the timings, presence of a particular police official at a particular time etc. I am of the considered view that the same are too immaterial and irrelevant as it is the evidence of the witnesses regarding the commission of the offence by the accused which is more important than the investigation conducted. Even otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigations. This being the background, I hereby hold that the contradictions and discrepancies so pointed out by the Ld. Defence Counsels would not be fatal to the prosecution case.
(95) Both the witnesses Ashok Kumar (PW12) and Anil Kumar (PW15) have corroborated each other on material particulars and are St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 78 consistent in so far as the allegations made against the accused persons. Their presence at the spot of incident is natural since they are residing in the same room. It was Ashok Kumar (PW12) who had made a call at 100 number from the mobile phone of Heera Lal (PW17) which fact has been confirmed by Heera Lal. Even the landlord namely Dal Chand (PW18) confirms the presence of Ashok Kumar (PW12) at the spot of the incident. Merely because Ashok Kumar and Anil Kumar are the sons of the deceased will not affect the merits of their testimonies and there is no reason for them to falsely implicate the accused persons. The factum of quarrel is also confirmed by the hostile witnesses i.e. Heera Lal (PW17) and Dal Chand (PW18). In Khuji Vs. State of M.P. reported in AIR 1991 SC 1853 it was observed by Hon'ble Supreme Court of India that even if a witness has turned hostile, part of his deposition which inspires confidence and has a ring of truth around it can still be relied upon. His evidence cannot be treated as effaced or washed off the record altogether. Though Heera Lal (PW17) and Dal Chand (PW18) have turned hostile on the allegations against the accused but they have confirmed the presence of Ashok Kumar at the spot and also the aspect of quarrel. In fact Dal Chand (PW18) has stated that it was he who advised Ashok Kumar either to take his injured father to the hospital or to call the police. It has been established from the evidence on record that there used to be frequent quarrels between the parties. I may observe that there is no exaggeration in the incident. If the witnesses Ashok Kumar (PW12) and Anil Kumar (PW15) so wanted, they could have exaggerate the incident which they have not done and St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 79 they have truly deposed as to whatever had transpired when they stated that their father was pushed with force when he fell and his head struck the stone floor. The Medical Evidence on record confirms the injury on the body of the deceased which are compatible to the eye witness count given by both Ashok Kumar (PW12) and Anil Kumar (PW15).
(96) This being the background, I hereby hold that the testimonies of both the eye witnesses i.e. Ashok Kumar (PW12) and Anil Kumar (PW15) are reliable, credible and truthful and there is no reason to disbelieve their testimonies and they have both not only identified the accused Jogender and Pappu who are their neighbours and frequently picked up a quarrel with them on small issues and have also been able to establish that even on the date of the incident had first offered instigation in the morning and again at night picked up a quarrel with them and entered their rented accommodation i.e. room after there was a quarrel between the sons of Chander Narayan and Jogender and then mercilessly gave beatings to both Jogender and Anil and dragged them out and pushed Chander Narayan to floor and repeatedly gave legs and fist blows resulting into injuries which proved fatal for Chander Narayan.
Whether the provisions of Section 302 or 304 IPC would apply:
(97) The case of the prosecution is that both the accused Jogender Poddar and Pappu Poddar in furtherance of their common intention gave beatings to Chander Narayan with an intention to kill him pursuant to which St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 80 they committed the murder of Chander Narayan. On the other hand, the case of the accused is not covered within the provisions of Section 302 IPC and at the most it falls under the provisions of Section 304 Indian Penal Code. (98) I have considered the submissions mad before me. I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 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, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. There are five exceptions provided to the above.
Firstly culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. I may observe that this exception is also subject to the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 81 the lawful exercise of the powers of such public servant; the provocation is not given by anything done in the lawful exercise of the right of private defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the first assault. Lastly Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. [Reference in this regard may be made to the case of Kundaswamy Vs. State of Tamil Nadu reported in 2008 (11) SCC 97].
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 82 (99) The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 Indian Penal Code. (Ref.: Daya Nand Vs. State of Haryana reported in AIR 2008 SC 1823). (100) Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 83 respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Indian Penal Code. Note: All murders are culpable homicide but not viceaversa. (Ref.: State of A.P. Vs. Rayavarapu Punnayya reported in AIR 1977 SC 45).
(101) It is submitted by the Ld. Defence Counsel that the provisions of Section 302 IPC has no application as the assault was made during the course of sudden quarrel and Exception 4 of Section 300 IPC applies whereas the plea of the Ld. Addl. Public Prosecutor is that the manner in which repeated injuries inflicted upon the deceased, is indicative of the intent of the accused. (102) For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. While in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 84 provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 85 altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage. (103) Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. [Ref.: Golla Yelugu Govindu Vs. State of Andhra Pradesh reported in 16 (2008) SCC 769] (104) To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of selfcontrol but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 86 Act, implies mutual provocation. It has been held by courts that a fight is not perse palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception. [Ref.: Sukhbir Singh Vs. State of Haryana reported in 2000 (3) SCC 327:
AIR 2002 SC 1168 followed by our own High Court in the case of Manoj Kumar & Ors. Vs. The State in Criminal Appeal No. 638/2009 decided on 27.3.2012].
(105) Applying the settled principles of law to the facts of the present case, it is writ large from the circumstances as they emerge from the record that the family of the deceased Chander Narayan and the family of the accused Jogender Poddar were residing in the same building in different rooms on rent and there were frequent quarrels between the families particularly between the children on minor issues. On the date of incident also first there was a verbal altercation between Anil Kumar son of the deceased Chander Narayan and Nitish son of accused Jogender Poddar which got aggravated. It is writ large that no weapon had been used by the accused while inflicting injuries upon the deceased nor there was any premeditation or preplanning to commit the murder of the deceased Chander Narayan. The incident in question had taken place in a sudden fight in the heat of passion upon a sudden quarrel and the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 87 offenders had not taken any undue advantage nor acted in a cruel or unusual manner and hence brings the case within the provisions of Section 304 Indian Penal Code. Now to consider as to whether it is Part I or Part II of the provisions of Section 304 IPC which would apply, I may observe that the accused Jogender Poddar and Pappu Poddar had no intention whatsoever to cause the death of the deceased and incident had taken place on a sudden quarrel. The intent perhaps to teach a lesson to the deceased but certainly not to cause the death and it was in the said process that the death of the deceased had been caused. The impact of the push given by the accused to Chander Narayan was such that he received multiple hemorrhagic contusions in left frontoparietal region and SDH along left frontotemporo parietal region causing mid line shift (as proved from the CT Scan Report Ex.PW9/A). This was the outcome of the fall on the deceased on cemented floor due to the hard push given on the chest by the accused Pappu while Joginder was inflicting leg and fist blows to him and even after he fell down both Pappu and Jogender continued to inflict these blows on Chander Narayan when he vomitted blood almost immediately. The Medical Evidence on record establishes that the death was due to coma and shock consequent upon head injury and septicemia; all the injuries were antemortem and could be caused by blunt/surface impact. The evidence on record does not conclusively establish the necessary intent so attributed to the accused by the prosecution but the act of pushing an aged person with such a force that he fell down and his head struck on the hard/ cemented floor and thereafter continued to give him leg St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 88 and fist blows till he started vomitting blood which is an act that any reasonable person is deemed to be possessing the requisite knowledge that it is likely to cause death of the person. Under these circumstances I hereby hold that the prosecution has miserably failed to conclusively establish that the accused had the intention to cause death or such bodily injuries sufficient in the ordinary course of nature to cause death or such bodily injury as is likely to cause death but it certainly stands established that the act of the accused Jogender and Pappu in together giving beating to Chander Narayan i.e. leg and fist blows and giving him a hard push on his chest as a result of which he fell with his head hitting on the hard cemented floor pursuant to which he vomitted blood and they continued to thrash him. The manner in which the deceased was thrown on the floor and mercilessly thrashed is such that any reasonable person would have the knowledge that such a beating to an aging person and that too in circumstances where he is thrown on the hard floor with his head striking the same while accused continued to beat him, was such that they were deemed to have knowledge that it was likely to cause death and hence the case of the accused is covered under the provisions of Section 299 IPC and they are guilty of culpable homicide not amounting to murder. The case of the accused Jogender Poddar and Pappu Poddar would fall within the purview of Section 304 (PartII) Indian Penal Code and not under Section 302 Indian Penal Code, the required mensrea for murder not being present.
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 89 FINAL CONCLUSIONS:
(106) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(107) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. From the evidence on record the following aspects stand established:
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 90
➢ That Jogender Poddar and Pappu were residing in the same building as that of the deceased Chander Naraian and his family (proved by Ashok Kumar and Anil Kumar).
➢ That there were frequent quarrels between the family of the deceased and the accused on minor issues particularly between the children (proved by Ashok Kumar and Anil Kumar).
➢ That on 24.4.2013 morning there was a quarrel i.e. verbal altercation between the accused Jogender on one side and Chander Narayan on the other side, when Chander Narayan was going for work in the morning Jogender said to Chander Narayan to see him by saying "dekh loonga saale tujhko" on which Chander Narayan told the persons available nearby that he did not want to quarrel (dekho kaise bol raha hai, mai ladai nahi karna chahta) (proved by Ashok Kumar). ➢ That on the same day i.e. 24.4.2013 at around 10:00 PM Anil Kumar S/o Chander Naraian went to sleep on the roof of his room where Nitish S/o Jogender Poddar was already present there and both of them started quarreling with each other (proved by Anil Kumar). ➢ That Anil Kumar informed his father Chander Narayan about the same and Nitish also informed his father Jogender Poddar (proved by Anil Kumar).
➢ That accused Pappu who is the brother of accused Nitish was under the influence of liquor and soon Jogender Poddar and Pappu Poddar entered the room of the deceased Chander Narayan and gave beatings to St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 91 Anil Kumar @ Bhulla (proved by Ashok Kumar and Anil Kumar). ➢ That accused Jogender Poddar exhorted accused Pappu to kill Anil and Chander Narayan by saying "aaj is sale ko jaan se mar de baki mein dekh loonga" after which both the accused Jogender Poddar and Pappu Poddar gave a thrashing to both Chander Narayan and Anil and dragged both Anil Kumar and Chander Narayan outside their rooms downstairs while beating (proved by Ashok Kumar and Anil Kumar). ➢ That Chander Narayan tried to seek help from the neighbours including landlord and inform them about the quarrel but in the meanwhile both the accused Jogender Poddar and Pappu Poddar gave fist and kick blows to Chander Narayan and pushed him with a force due to which he fell on the cemented floor and received head injury (proved by Ashok Kumar and Anil Kumar).
➢ That both the accused Jogender Poddar and Pappu Poddar continued to give kick and fist blows to Chander Narayan even after he fell down and vomitted blood after which they fled away from the spot (proved by Ashok Kumar and Anil Kumar).
➢ That a call at 100 number was made by Ashok Kumar from the mobile phone of Heera Lal (proved by Ashok Kumar and Heera Lal). ➢ That PCR Van came to the spot and the injured Chander Narayan was shifted to BJRM Hospital (proved by Ashok Kumar and ASI Jai Bhagwan).
➢ That at about 11:55 PM Chander Narayan S/o Jogeshwar Rai was St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 92 brought to BJRM Hospital and examined by Dr. Biswanath under the supervision of Dr. Deepak Chugh and on examination the patient was conscious, oriented with stable vitals and on local examination there was a abrasion over occipital region; there was history of vomiting and nasal bleed and loss of consciousness (proved by Dr. Deepak Chugh). ➢ That the injured Chander Narayan was referred to Shushrut Trauma Center where he was declared unfit for statement by examined by Dr. Ankit (proved by Dr. Tushit Mewada).
➢ That on 25.4.2013 the CT Head of the injured Chander Narayan was also done and there were multiple hemorrhagic contusions in left frontoparietal region and SDH along left frontotemporo parietal region causing mid line shift (proved by Dr. Tufail). ➢ That on the basis of the statement of Ashok the present FIR was registered (Ashok Kumar, ASI Jitender and SI Krishan Kumar) ➢ That on the pointing out of complainant Ashok, the accused Jogender Poddar was arrested and his disclosure statement was recorded (Ashok Kumar, Ct. Raju and SI Krishan).
➢ That on 28.4.2013 also the patient was found unfit for statement (proved by Dr. S. Kuki).
➢ That on 1.5.2013 the injured Chander Narayan succumbed to injuries and expired on 1.5.2013 (proved by Dr. Yogesh Verma). ➢ That on the same day i.e. 1.5.2013 at the instance of Ashok, the accused Pappu Poddar was apprehended near the Out Gate of Azadpur Mandi St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 93 and arrested in the present case.
(108) The Medical Evidence on record is compatible to the prosecution case that the death of the deceased was caused by blunt/surface impact but in so far as the intention of the accused to cause death is concerned, the same is not reflected from the nature of injuries. Rather, the Medical Evidence confirms that the death took place after eight days of the incident and this head injury was such as is likely to cause the death of the person to whom harm is caused though later the death was caused due supervening circumstances i.e. Septicemia.
(109) The testimonies of both the eye witnesses i.e. Ashok Kumar and Anil Kumar are found to be reliable, credible and truthful and the Ocular Evidence conclusively proves the allegations against both the accused Jogender Poddar and Pappu Poddar.
(110) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(111) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 94 report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(112) This being the background, I hereby hold that the prosecution has been able to prove and establish that on 24.4.2013 at about 10:30 PM at House No. 115, Arjun Mandir Wali Gali, Haiderpur, Delhi both the accused Jogender Poddar and Pappu Poddar in furtherance on their common intention entered the rented accommodation/ room of the deceased Chander Narayan and gave him led and fist blows and then dragged him outside thereby committed house trespass for which they are hereby held guilty of the offence under Section 451/34 Indian Penal Code.
(113) In so far as the charge under Section 302 Indian Penal Code is concerned, the Medical Evidence on record establishes that the death was due to coma and shock consequent upon head injury and septicemia; all the injuries were antemortem and could be caused by blunt/surface impact. The evidence on record does not conclusively establish the necessary intent so attributed to the accused by the prosecution but the act of pushing an aged person with such a force that he fell down and his head struck on the hard/ St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 95 cemented floor and thereafter continued to give him leg and fist blows till he started vomitting blood which is an act that any reasonable person is deemed to be possessing the requisite knowledge that it is likely to cause death of the person. Under these circumstances I hereby hold that the prosecution has miserably failed to conclusively establish that the accused had the intention to cause death or such bodily injuries sufficient in the ordinary course of nature to cause death or such bodily injury as is likely to cause death but it certainly stands established that the act of the accused Jogender and Pappu in together giving beating to Chander Narayan i.e. leg and fist blows and giving him a hard push on his chest as a result of which he fell with his head hitting on the hard cemented floor pursuant to which he vomitted blood and they continued to thrash him, The manner in which the deceased thrown on the floor and mercilessly thrashed is such that any reasonable person would have the knowledge that such a beating to an aging person and that too in circumstances where he is thrown on the hard floor with his head striking the same while accused continued to beat him, was such that they were deemed to have knowledge that it was likely to cause death and hence the case of the accused is covered under the provisions of Section 299 IPC and they are guilty of culpable homicide not amounting to murder. The case of the accused Jogender Poddar and Pappu Poddar would fall within the purview of Section 304 (PartII) Indian Penal Code and not under Section 302 Indian Penal Code, the required mensrea for murder not being present. Therefore, I hold both the accused Jogender Poddar and Pappu Poddar guilty for the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 96 offence under Section 304 (PartII) Indian Penal Code for which the accused are accordingly convicted.
(114) Be listed for arguments on sentence on 17.9.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 9.9.2014 ASJII(NW)/ ROHINI
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 97
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 148/2013 Unique Case ID No. 02404R0204732013 State Vs. (1) Jogender Poddar S/o Late Sh. Sita Ram R/o House No. 115, Arjun Mandir Wali Gali, Haiderpur, Delhi Permanent Address:
Village Gopalpur, PO Arthua, PS Phusera, Distt. Darbhanga, Bihar (Convicted) (2) Pappu Poddar S/o Jogender Poddar R/o House No. 115, Arjun Mandir Wali Gali, Haiderpur, Delhi Permanent Address:
Village Gopalpur, PO Arthua, PS Phusera, Distt. Darbhanga, Bihar (Convicted) FIR No.: 160/2013 Police Station: Shalimar Bagh Under Section: 302/451/34 Indian Penal Code St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 98 Date of Conviction: 9.9.2014 Arguments heard on: 17.9.2014 Date on Sentence: 17.9.2014 APPEARANCE:
Present: Sh. Tofeeq Ahmed, Ld. Addl. PP for the State.
Both the convicts in Judicial Custody with Sh. Anil Bharti Advocate.
ORDER ON SENTENCE:
As per the allegations, on 24.4.2013 at about 10:30 PM at House No. 115, Arjun Mandir Wali Gali, Haiderpur, Delhi both the accused Jogender Poddar and Pappu Poddar in furtherance on their common intention committed house trespass and gave beatings to Chander Narayan and also gave a forceful blows on the chest of Chander Narayan as a result of which his head struck the cement street and thereby caused the death of Chander Narayan.
On the basis of the testimonies of the various prosecution witnesses particularly the eye witnesses Ashok Kumar and Anil Kumar and also on the basis of medical and other circumstantial evidence on record, this Court vide a detail judgment dated 9.9.2014 held the accused Jogender Poddar and Pappu Poddar guilty of the offence under Section 451/34 and 304 (Part II)/34 Indian Penal Code (not under Section 302 Indian Penal Code).
Vide the detail judgment this Court has observed that the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 99 prosecution has been able to successfully prove and establish that Jogender Poddar and Pappu were residing in the same building as that of the deceased Chander Naraian and his family; that there were frequent quarrels between the family of the deceased and the accused on minor issues particularly between the children; that on 24.4.2013 morning there was a quarrel i.e. verbal altercation between the accused Jogender on one side and Chander Narayan on the other side, when Chander Narayan was going for work in the morning Jogender said to Chander Narayan to see him by saying "dekh loonga saale tujhko" on which Chander Narayan told the persons available nearby that he did not want to quarrel (dekho kaise bol raha hai, mai ladai nahi karna chahta).
The prosecution has also been able to successfully establish that on the same day i.e. 24.4.2013 at around 10:00 PM Anil Kumar S/o Chander Naraian went to sleep on the roof of his room where Nitish S/o Jogender Poddar was already present there and both of them started quarreling with each other; that Anil Kumar informed his father Chander Narayan about the same and Nitish also informed his father Jogender Poddar; that accused Pappu who is the brother of accused Nitish was under the influence of liquor and soon Jogender Poddar and Pappu Poddar entered the room of the deceased Chander Narayan and gave beatings to Anil Kumar @ Bhulla; that accused Jogender Poddar exhorted accused Pappu to kill Anil and Chander Narayan by saying "aaj is sale ko jaan se mar de baki mein dekh loonga" after which both the accused Jogender Poddar and Pappu Poddar gave a thrashing to both St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 100 Chander Narayan and Anil and dragged both Anil Kumar and Chander Narayan outside their rooms downstairs while beating; that Chander Narayan tried to seek help from the neighbours including landlord and inform them about the quarrel but in the meanwhile both the accused Jogender Poddar and Pappu Poddar gave fist and kick blows to Chander Narayan and pushed him with a force due to which he fell on the cemented floor and received head injury; that both the accused Jogender Poddar and Pappu Poddar continued to give kick and fist blows to Chander Narayan even after he fell down and vomitted blood after which they fled away from the spot; that a call at 100 number was made by Ashok Kumar from the mobile phone of Heera Lal; that PCR Van came to the spot and the injured Chander Narayan was shifted to BJRM Hospital.
This Court has also observed that the prosecution has been able to successfully establish that at about 11:55 PM Chander Narayan S/o Jogeshwar Rai was brought to BJRM Hospital and examined by Dr. Biswanath under the supervision of Dr. Deepak Chugh and on examination the patient was conscious, oriented with stable vitals and on local examination there was a abrasion over occipital region; there was history of vomiting and nasal bleed and loss of consciousness; that the injured Chander Narayan was referred to Shushrut Trauma Center where he was declared unfit for statement by examined by Dr. Ankit; that on 25.4.2013 the CT Head of the injured Chander Narayan was also done and there were multiple hemorrhagic contusions in left frontoparietal region and SDH along left frontotemporo parietal region St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 101 causing mid line shift; that on the basis of the statement of Ashok the present FIR was registered; that on the pointing out of complainant Ashok, the accused Jogender Poddar was arrested and his disclosure statement was recorded; that on 28.4.2013 also the patient was found unfit for statement; that on 1.5.2013 the injured Chander Narayan succumbed to injuries and expired on 1.5.2013; that on the same day i.e. 1.5.2013 at the instance of Ashok, the accused Pappu Poddar was apprehended near the Out Gate of Azadpur Mandi and arrested in the present case.
It has been observed by this Court that the Medical Evidence on record is compatible to the prosecution case that the death of the deceased was caused by blunt/surface impact but in so far as the intention of the accused to cause death is concerned, the same is not reflected from the nature of injuries. Rather, the Medical Evidence confirms that the death took place after eight days of the incident and this head injury was such as is likely to cause the death of the person to whom harm is caused though later the death was caused due supervening circumstances i.e. Septicemia.
The testimonies of both the eye witnesses i.e. Ashok Kumar and Anil Kumar are found to be reliable, credible and truthful and the Ocular Evidence conclusively proves the allegations against both the accused Jogender Poddar and Pappu Poddar.
Therefore, it has been held that on 24.4.2013 at about 10:30 PM at House No. 115, Arjun Mandir Wali Gali, Haiderpur, Delhi both the accused Jogender Poddar and Pappu Poddar in furtherance on their common intention St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 102 entered the rented accommodation/ room of the deceased Chander Narayan and gave him led and fist blows and then dragged him outside thereby committed house trespass for which they have been held guilty of the offence under Section 451/34 Indian Penal Code.
In so far as the charge under Section 302 Indian Penal Code is concerned, the Medical Evidence on record establishes that the death was due to coma and shock consequent upon head injury and septicemia; all the injuries were antemortem and could be caused by blunt/surface impact. The evidence on record does not conclusively establish the necessary intent so attributed to the accused by the prosecution but the act of pushing an aged person with such a force that he fell down and his head struck on the hard/ cemented floor and thereafter continued to give him leg and fist blows till he started vomitting blood which is an act that any reasonable person is deemed to be possessing the requisite knowledge that it is likely to cause death of the person. Under these circumstances I hereby hold that the prosecution has miserably failed to conclusively establish that the accused had the intention to cause death or such bodily injuries sufficient in the ordinary course of nature to cause death or such bodily injury as is likely to cause death but it certainly stands established that the act of the accused Jogender and Pappu in together giving beating to Chander Narayan i.e. leg and fist blows and giving him a hard push on his chest as a result of which he fell with his head hitting on the hard cemented floor pursuant to which he vomitted blood and they continued to thrash him, The manner in which the deceased thrown on the floor and St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 103 mercilessly thrashed is such that any reasonable person would have the knowledge that such a beating to an aging person and that too in circumstances where he is thrown on the hard floor with his head striking the same while accused continued to beat him, was such that they were deemed to have knowledge that it was likely to cause death and hence the case of the accused is covered under the provisions of Section 299 IPC and they have been held guilty of culpable homicide not amounting to murder. It has been held by this Court that the case of the accused Jogender Poddar and Pappu Poddar would fall within the purview of Section 304 (PartII) Indian Penal Code and not under Section 302 Indian Penal Code, the required mensrea for murder not being present and therefore both the accused Jogender Poddar and Pappu Poddar have been held guilty for the offence under Section 304 (Part II) Indian Penal Code for which they have been accordingly convicted.
Heard arguments on the point of sentence. The convict Jogender Poddar is aged about 60 years having a family comprising of wife, five daughters and five sons including the convict Pappu Poddar who is aged about 25 years. The convict Jogender Poddar is 4th class pass and is a vegetable seller by profession whereas the convict Pappu Poddar is 5th class pass and is studying in Jail.
The Ld. Counsel appearing on behalf of the convicts has vehemently argued that all the convict Jogender Poddar is an aged person whereas the convict Pappu Poddar is a young boy and the incident in question was a mishappening which was never intended or anticipated. It is pointed St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 104 out that the convicts are first time offenders having no previous record who earn their livelihood by hard and honest work. It is also pointed out that the convicts are helping hands of their respective families and hence a leniency on sentence is requested. On the other hand the Ld. Addl. PP for the State has prayed that a stern view be taken against the convicts.
I have considered the rival contentions. The mitigating factors are that the convicts have no previous criminal record and that while the convict Jogender Poddar is aged about 60 years the convict Papu Poddar is a young boy of 25 years. The aggravating factors are that the deceased Chander Narayan was an aged man of 50 years.
The convicts are the neighbours of the deceased and the incident in question was an outcome of a sudden quarrel with no criminal intent to cause death of the deceased. It is in this background that I am now required to decide upon the quantum of sentence. The conduct of the convicts during the trial has been satisfactorily and have undergone the agony of trial for the last almost one year. Not only the convicts but so also their family members have suffered on account of their incarceration since the date of their arrest. I am of a considered view that the convicts are entitled to be treated with compassion not being previous offenders and having no background of being on the wrong side of law. Therefore, under these circumstances a lenient view is taken against the convicts and I therefore award the following sentence to the convicts:
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 105
Convict Jogender Poddar
1. For the offence under Section 451 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Two (2) Years with fine to the tune of Rs.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Seven Days.
2. For the offence under Section 304 (PartII) Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Eight (8) Years with fine to the tune of Rs.1,00,000/ (Rs. One Lac). The entire fine amount of Rs.1,00,000/ (Rs. One Lac) if deposited, shall be given to the family of the deceased Chander Narayan as compensation under Section 357 Cr.P.C. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Six Months.
Both the sentences shall run concurrently.
Convict Pappu Poddar:
1. For the offence under Section 451 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Two (2) Years with fine to the tune of Rs.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Seven Days.
2. For the offence under Section 304 (PartII) Indian Penal Code the St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 106 convict is sentenced to Rigorous Imprisonment for a period of Eight (8) Years with fine to the tune of Rs.1,00,000/ (Rs. One Lac). The entire fine amount of Rs.1,00,000/ (Rs. One Lac) if deposited, shall be given to the family of the deceased Chander Narayan as compensation under Section 357 Cr.P.C. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Six Months.
Both the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to both the convicts for the period already undergone by them.
The convicts are informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convicts free of costs and one copy of sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 17.9.2014 ASJII(NW)/ ROHINI
St. Vs. Jogender Poddar & Anr., FIR No. 160/13, PS Shalimar Bagh Page No. 107