Delhi District Court
State vs . Surender on 26 September, 2015
SC No. 18/14
State Vs. Surender
FIR No. 114/12
PS Dabri
IN THE COURT OF SH. ANIL KUMAR:
ADDITIONAL SESSIONS JUDGE03 : DWARKA COURTS : DELHI
In the matter of:
Unique ID of the case : 02405R0169882012
SC No. : 18/14
FIR No. : 114/12
Police Station : Dabri
Under Section : 302/323 IPC
Date of Institution : 03.07.2012
.
Date of Committal of Case : 21.07.2012
.
to the Sessions
Case received by way of : 03.02.2014
.
transfer by the Court of
undersigned on
Reserved for orders on : 24.08.2015
Judgment announced on : 26.09.2015
State Vs. Surender
S/o Ram Murti Lal
R/o Village Kamua Kalan,
PS Bitrichenpur, Distt. Bareli, U.P.
Present: Shri Shiv Kumar, Ld. Addl. P.P. for the State.
Shri S.D. Sharma, Ld. Counsel for the accused.
J U D G E M E N T
1. The accused namely Surender has been sent for trial for Page no. 1 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri commission of offences punishable under Section 323/302 IPC.
2. The FIR of present case was registered on the complaint of Smt. Sheela, mother of deceased.
3. As per the story of prosecution, brief facts of the case in the nutshell, are that on 04.04.2012 on receipt of DD No.9A regarding quarrel, SI Dinesh Kumar alongwith Ct.Kuldeep reached at G5, Gali No.4, Vishwas Park, where they came to know that injured has already been taken to DDU Hospital. On the spot one blood stained piece of brick and one handle of iron tava (pan) was lying which was taken into possession at the instance of a witness. In the meantime, DD no. 22B was received and SI Dinesh left the spot for DDU Hospital leaving Ct. Kuldeep there to guard the spot. In the hospital, injured Sheela was found admitted vide MLC no. 6114/12 and injured Lalu (since deceased) was found admitted vide MLC No. 6318/12 on which doctor had written U/O blunt. Doctor declared injured Lalu unfit for statement whereas injured Sheela was declared fit to make statement and accordingly, her statement was recorded.
In her statement, complainant Sheela stated that she alongwith her son Lalu @ Sonu is residing at a tenanted Page no. 2 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri accommodation and accused Surender alongwith his mother, sister and brother is also residing nearby and around 15 days ago, sister of Surender had gone somewhere and accused Surender had a doubt that her son Lalu had enticed her away and accused Surender had threatened to kill her son earlier also. She further stated that in the morning at about 7.00 a.m. she alongwith her son was sleeping in her room and suddenly accused Surender came into her room and he was carrying brick at that moment and starting saying to her son that 'you have ravished my sister, I will kill you' and while saying so he hit her son with brick repeatedly on his head and face and when she tried to rescue her son, Surender started beating her with the handle of tava (pan). Many public persons had gathered there who rescued both of them.
On the basis of statement of complainant and the MLCs, SI Dinesh Kumar prepared tehrir and sent Ct. Kuldeep Kumar to PS for getting the case registered under Section 308 IPC.
During investigation, I.O. prepared the site plan at the instance of an eyewitness Ashok, recorded the statement of witnesses and arrested the accused Surender vide arrest memo who made his disclosure statement vide which he stated that her Page no. 3 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri sister had gone somewhere from home and he had apprehension that Sonu (since deceased) had taken away her sister and therefore, he was in search of Sonu since long and on that day Sonu had come home and was present at his home so he (accused Surender) went to his room and lifted a piece of brick from outside Sonu's home and had hit it repeatedly on head and face of Sonu when Sonu's mother came in his rescue, he (accused Surender) also caused injuries to her with the handle of tava (pan). Accused Sonu also got recovered his blood stained clothes i.e. shirt and half pant, which he was wearing at the time of commission of offence, from his room which was sealed and taken into possession vide seizure memo. From the spot blood stained earth control, blood stained pillow and blood stained gudhdi were also taken into possession vide seizure memo.
On 08.04.2012, an information was received from DDU hospital vide DD No. 39A that injured Lalu @ Sonu who was admitted in the hospital vide MLC No. 6318 on 04.04.2012, has died during treatment.
On 09.04.2012, SI Dinesh Kumar got identified the dead body of deceased from his brother Nehru and Chhote Lal, recorded their statement, completed the inquest form, got the Page no. 4 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri postmortem conducted on the dead body of deceased at DDU hospital and after the postmortem, body of deceased was handed over to his relatives. I.O. also collected the postmortem report of deceased on which doctor had given the cause of death as "due to head injury caused by blunt force which is sufficient to cause death in ordinary cause of nature. All injuries are antemortem in nature and of same duration". By that time, injured Sheela had gone to her village and was tried to be contacted over phone many a times but she did not turn up saying that she was not well and doctors at DDU hospital said that till the time injured does not come to the hospital, opinion on the MLC regarding injuries cannot be given.
During investigation, scaled site plan was got prepared and subsequent report qua weapon of offence and injuries were collected and the exhibits were sent to FSL, Rohini for expert opinion.
Thereafter, on conclusion of necessary investigation, chargesheet under Section 302/304/323 IPC was prepared and the same was filed in the Court of Ld. Area Magistrate/Ld. M.M.
4. After supplying the complete copies to the accused, the Page no. 5 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri concerned Ld. Metropolitan Magistrate committed the case to the Court of sessions complying the provisions under Section 207/209 Cr.P.C., as the offence under Section 302/304 IPC, for which the cognizance was taken, was exclusively triable by the Court of Sessions.
5. After hearing arguments on the point of charge vide order dated 14.01.2013, charge under Section 302/323 IPC was framed to which he pleaded not guilty and claimed trial. During trial FSL report was received.
6. For discharging the onus placed on it, prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has examined 19 witnesses in all in support of its case namely: PW1 Ct. Deepak PW2 Ashok Kumar Pareva (public witness) PW3 Smt. Savitri Devi (public witness) PW4 Smt. Sheela (public witness) PW5 Chhotey Lal (public witness) PW6 Dr. Shalini Girdhar PW7 Ms. Pushpa Page no. 6 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri PW8 HC Seema PW9 Ct. Deepti Negi PW10 HC Harikesh PW11 Dr. Manjeet (DDU Hospital) PW12 ASI Dharampal PW13 Dr. Manish (DDU Hospital) PW14 I.O./SI Dinesh PW15 Ct. Hardeep Singh PW16 Dr. Babita (Radiology, DDU Hospital ) PW17 Dr. Dipali Taneja (DDU Hospital ) PW18 Shri Ashutosh Kumar Srivastava (Deputy Director, DNA Unit, FSL) PW19 HC Ashok Kumar
7. After completion of prosecution evidence, statements of accused under Section 313 Cr.P.C. was recorded. In his statement, he has denied his involvement in the present case.
8. I have gone through the entire record and carefully considered the matter.
9. Before proceedings further, I would like to discuss the evidence led by the prosecution to prove its case.
10. PW1 Ct. Kuldeep has deposed that on 04.04.2012 he had Page no. 7 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri joined the investigation alongwith I.O./SI Dinesh Kumar and had gone to the spot. I.O. had seized a piece of brick and handle of tava, after converting the same into sealed pulanda, vide Ex.PW1/A. He has further proved the arrest memo of accused Surender as Ex.PW1/B, his personal search as Ex.PW1/C, disclosure statement made by accused as Ex.PW1/D, the seizure memo of blood stained clothes of accused as Ex.PW1/E, seizure memo of earth control as Ex.PW1/F, seizure memo of blood stained earth as Ex.PW1/G and the seizure memo of pillow and gudhdi as Ex.PW1/H. PW1 has also proved the case property i.e. piece of brick (½ brick) as Ex.P1, handle of tava as Ex.P2, shirt as Ex.P3 and half pant as Ex.P4, produced by MHC(M) in the Court.
11. PW2 Shri Ashok Kumar Pareva (landlord of the deceased), PW3 Smt. Savitri Devi W/o Shri Ashok Kumar Pareva and PW7 Ms. Pushpa (neighbour of deceased) are the eye witnesses to the incident.
12. Injured/eyewitness/complainant Sheela stepped into the witness box as PW4 and has deposed on the same lines as stated by her in her statement/ complaint given to police on the basis of Page no. 8 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri which the present case was registered. She proved the said statement on record as Ex.PW4/A.
13. PW5 Chhotey Lal brother of deceased Laalu @ Sonu has deposed that he had identified the dead body of his brother Lalu and police had recorded his statement which he proved on record as Ex.PW5/A and receipt vide which he had received the dead body of his brother after the postmortem as Ex.PW5/B. He has also proved his another statement made to the police as Ex.PW5/C.
14. PW6 Dr. Shalini Girdhar is the autopsy surgeon and she has deposed that she had conducted the postmortem on the dead body of deceased on 09.04.2012 and she has proved the detailed computer typed post mortem report as Ex. PW6/A. She has further deposed that police had sought subsequent opinion in respect of MLC No. 3114 dated 04.04.2012 regarding weapon of offence i.e. handle of tava and one half brick which were produced before her in sealed pulandas and after considering the MLC and the handle of tava, she opined that the injuries mentioned in the MLC could be produced by the weapon i.e. handle of tava or similar weapon. She has proved on record Page no. 9 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri the subsequent opinion in this regard as Ex.PW6/B and after considering the postmortem report she opined that the injuries mentioned in the postmortem report could be produced by the weapon i.e. half brick or similar weapon. The detailed subsequent opinion in this regard as Ex.PW6/C.
15. PW8 HC Seema has deposed that on 19.03.2012, she was the duty officer and had recorded the FIR no. 103/12 on the complaint of Smt. Kantori Devi W/o Late Shri Rummurti Lal regarding kidnapping of her daughter namely Babli, aged about 15 years. She has proved on record the copy of FIR as Ex.PW8/A and the copy of complaint as Ex.PW8/B. She has further deposed that on 04.04.2012 she had recorded the present FIR bearing no. 114/12 on the basis of rukka sent by SI Dinesh Kumar through Ct. Kuldeep. She proved the copy of FIR as Ex.PW8/C and the endorsement made on the rukka vide Ex.PW8/D.
16. PW9 Ct. Deepti Negi has deposed that on 04.04.2012 she had received an information from DDU hospital regarding admission of two injured persons namely Sheela and Lalu and she had recorded the same vide DD No. 22B and proved the said DD Page no. 10 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri on record as Ex.PW9/A.
17. PW10 HC Harikesh has deposed that on 04.04.2012 he had recorded DD No. 9A on receipt of information through wireless and proved the same on record as Ex.PW10/A. He had further deposed that on 08.04.2012, he had recorded DD No. 39A on receipt of information of DDU hospital regarding death of injured Lalu. He proved the same on record as Ex.PW10/B.
18. PW11 Dr. Manjeet has deposed that he had examined the injured Lalu. He proved on record the detailed MLC as Ex.PW11/A. He has further deposed that thereafter, the injured was referred to ENT/ Plastic/ Dental/ Surgery/ Optho/ Neuro Surgery for further treatment.
19. PW12 ASI Dharampal has deposed that on the night intervening 03/04.04.2012, he was InchargePCR Van, South West Zone, Delhi and on that day at about 7.15 a.m., on receipt of a call, he alongwith Ct. Manoj reached at the spot and found Lalu and his mother Sheela in injured condition. He also found one blood stained brick, a handle of pan (tava), blood stained Page no. 11 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri pillow and gadda lying on the spot. He has further deposed that he had taken both the aforesaid injured to DDU hospital in PCR van and got them admitted there.
20. PW13 Dr. Manish appeared on behalf of Dr. Rohit to prove on record the MLC prepared by him. He has deposed that as per the MLC no. 6318 of Lalu, Dr. Rohit had opined that the injured had got fracture of nasal bones and the nature of injuries were grievous. He has identified the signatures of Dr. Rohit on the endorsement made by him on the back side of MLC.
21. I.O/SI Dinesh stepped into the witness box as PW4 and reiterated the facts of the case as mentioned in the chargesheet filed by him. Besides all the other documents prepared in the present case and proved by other prosecution witnesses, he proved on record the endorsement made by him on rukka as Ex.PW14/A, site plan as Ex.PW14/B, Identification memo of dead body got signed by brothers of deceased namely Nehru as Ex.PW14/C, Inquest proceedings as Ex.PW14/D and the seizure memo of one sealed pulanda containing blood gauze alongwith sample seal as Ex.PW14/E. I.O./SI Dinesh has further deposed that during Page no. 12 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri investigation, on 30.05.2012, he moved an application alongwith copy of postmortem report of deceased Lalu for seeking subsequent opinion regarding weapon of offence i.e. piece of brick and handle of tava and he produced the sealed pulanda containing piece of brick and handle of tava and after going through the contents of postmortem report and seeing the case property, doctor gave his subsequent opinion regarding weapon of offence and thereafter,case property was resealed. From the hospital, he came to the police station and deposited the case property in malkhana. I.O. has further deposed that during investigation the case property was sent to FSL, he got prepared the scaled site plan and on completion of investigation, he prepared the challan and filed the same in Court.
22. PW15 Ct. Hardeep Singh has deposed that on 25.06.2012 on receipt of information he alongwith SI Dinesh reached at the spot where eyewitness Ashok Kumar met them and at the instance of said Ashok, he prepared the rough notes of the place of incident. On the basis of rough notes, he prepared the scaled site plan and proved the same on record as Ex.PW15/A.
23. PW16 Dr. Babita, appeared on behalf of Dr. Shipra to prove on record the MLC prepared by him. He has deposed that Page no. 13 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri as per the MLC no. 6318 of Lalu, Dr. Rohit had opined that the injured had got fracture of nasal bones and the nature of injuries were grievous. He has identified the signatures of Dr. Rohit on the endorsement made by him on the back side of MLC.
24. PW17 Dr. Dipali Taneja appeared on behalf of Dr. Suchitra and Dr.Mir Raja and proved the death summary of deceased Lalu, prepared by Dr. Suchitra, as Ex.PW17/A and MLC No. 6114 of injured Sheela prepared by Dr. Mir Raja, as Ex.PW17/B.
25. PW18 Shri Ashutosh Kumar Srivastava, Dy. Director, DNA Unit, FSL Rohini has deposed that on 04.06.2012 four sealed parcels in the present case were received in his office. Parcel no.1 was consisting of one brick and handle of tava which were given mark 1a and 1b, parcel no.2 was consisting of pillow and gudri which were given mark 2a and 2b, parcel no.3 was consisting of blood on gauze of the deceased and the parcel no.4 was consisting of half pant and shirt of accused which were given mark 4a and 4b.
Shri Ashutosh has further deposed that he had made the DNA profile and after conclusion, the DNA profiling (STR Page no. 14 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri analysis) performed on the exhibits 1b, 2a, 2b, 3, & 4b provided was sufficient to conclude that the DNA profile of the source of exhibit or exhibit 1B, 2a, 2b and 4b was similar with the DNA profile from the source of exhibit 3. He proved his detailed report alongwith Genotype Analysis as Ex.PW18/A and its analysis as Ex.PW18/B. After going through the said report Shri Ashutosh deposed that it was wrongly mentioned as blood gauze of accused instead of blood gauze of deceased in a column at exhibit 3.
Shri Ashutosh Kumar again entered into the witness box on allowing the application under Section 311 Cr.P.C. moved by the State and further deposed that DNA could not be isolated on Ex.4a in Ex.PW18/A i.e. one full sleeve shirt having brownish stains at places due to degradation of the stains may presence of bacteria or inhibitors present on the stains which interfered during the chemical analysis for DNA isolation. He has further deposed that if two clothes are having the same source i.e. brownish stains is recovered from the same place, may not necessary that DNA can be isolated from both the sources. Environmental conditions always effects on stains and probably Ex.4a may not be properly dried or preserved.
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26. PW19 HC Ashok Kumar, MHC(M) has deposed that on 04.04.2012 SI Dinesh Kumar had deposited the case property of the present case and he had made entries in register no.19 at column no.56815686 and the said exhibits were sent to FSL Rohini on 04.06.2012 vide RC No. 124/21/12 through Ct. Rajiv on 30.05.2012 and I.O. had sent the pulanda to DDU hospital for obtaining opinion. On 26.11.2012, Ct. Bheki Ram had brought four pullandas and handed over the same to MHC(M) and handed over the report to SI Dinesh. He has proved on record the copies of register no.19 as Ex.PW19/A, RC No.124/21/12 as Ex.PW19/B and RC No. 113/21/12 as Ex.PW19/C.
27. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded and all the incriminating circumstances were put to the accused, to which stand of the accused was of general denial and he has stated that he is innocent and has been falsely implicated in the present case in connivance of the complainant and landlord Ashok and police and that he had a quarrel with his landlord Ashok prior to the alleged incident and at that time Ashok had threatened him.
28. I have perused the record.
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29. I have heard Ld. Addl. P.P. on for the State as well as Ld. Defence Counsel and have gone through the entire record and have given my thoughtful consideration to the matter.
30. Ld. Addl. P.P. for the State has argued that case of the prosecution has been duly proved by eyewitnesses i.e. PW2 Ashok Kumar and PW4 Sheela Devi (complainant). Moreoever the post mortem Ex.PW6/A shows 18 external injuries on the body of deceased and the cause of death was due to head injury caused by blunt force which was sufficient to cause death in the course of nature. Also in the subsequent opinion in the MLC of deceased, it was opined by the doctor that injuries mentioned in the MLC could be caused with the weapon i.e. the handle of tava and half brick which were subsequently produced by the police to him and the said opinion has also been proved by the doctor on record as Ex.PW6/B and Ex.PW6/C. With the abovesaid arguments, Ld. Addl. P.P. submits that the accused is liable to be convicted for the offence under Section 323/302 IPC.
31. On the other hand, Ld. Defence Counsel has argued that prosecution has failed to prove its case beyond reasonable doubt since the FSL report does not support the case of prosecution and Page no. 17 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri the clothes which were allegedly seized from the accused did not match in the FSL. Ld. Defence Counsel has further argued that there were material contradictions in the statements of eye witnesses PW2 and PW4 and manner of arrest of accused is also doubtful. Arguing all above, Ld. Defence Counsel has submitted that accused is entitled for acquittal.
32. Charges levelled against the accused is of offence of culpable homicide amounting to murder and simple injury to mother of deceased.
33. Relevant provisions of offence of culpable homicide and murder are reproduced here as under: "299. Culpable homicide Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation I A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
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Explanation 2 Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
Explanation 3 The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
"Section 300: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly.If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly.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 Fourthly.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 Page no. 19 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.When culpable homicide is not murder. 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.
The above exception is subject to the following provisos: First.That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.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 Page no. 20 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.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.
Exception 4.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.
Explanation It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.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."
34. On the touchstone of the legal position discussed above, let me advert back to the facts of the present case to see whether Page no. 21 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri the prosecution has been able to prove the charges levelled against accused beyond all reasonable doubt.
35. The prosecution has cited and examined total 19 witnesses. The case of the prosecution hinges primarily on the eye witness testimony of four witnesses which includes mother of deceased PW4 Smt. Sheela, landlord of deceased PW2 Ashok Kumar Pareva, mother of landlord PW3 Smt. Savitri Devi and sisterinlaw of landlord PW7 Ms. Pushpa. The statement of accused was recorded under the Provision of Section 313 of Code of Criminal Procedure in which he asserted that he has been falsely implicated in this case.
36. PW4 Smt. Sheela is not only one of the eyewitness but she is an injured also. As per her MLC Ex.PW17/B she sustained CLW measuring 1.5x.3 cm on right side of her face.
It is a settled law that testimony of an injured witness stands on a higher pedestal than any other witness, in as much as, he sustain injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the scene of crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other persons. In Abdul Sayeed Vs. Page no. 22 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri State of Madhya Pradesh [(2010) 10 SCC 259], the Supreme Court held as under: "28. The question of the wight to be attached to the evidence of a witness that was himself injured in the course of occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." ............"
PW4 Smt. Sheela, in her testimony recorded on 07.05.2013, has deposed that in the year 2012, she was residing at G5, Gali no.4, Vishwas Park, Rajapuri, Delhi with her son Laalu @ Sonu on rent in the house of Ashok and accused Surender was also residing in a room near their room in the said house. Mother and sister of accused were also residing with him. She further deposed that about 1617 days prior to the incident, sister of accused namely Babli went missing and accused doubted on her son Laalu @ Sonu regarding his involvement in taking his sister Page no. 23 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri Babli and accused had also lodged some complaint against her son in police station and her son was detained for two days by the police. Smt. Sheela further deposed that on 4th day of Chaitra month of last year she alongwith her son Sonu @ Lalu was sleeping in their room and at about 7:00 a.m., accused came in their room all of a sudden having brick in his hand and started hitting with the brick on the face of her son. Accused was also having tava and when she tried to save her son, accused hit her with the brick on her face. Accused repeatedly hit her son on his face with the brick and it was heavily bleeding. She further deposed that public persons including landlord namely Ashok gathered at the spot. Ashok intervened and rescued her from the accused and he bolted the accused in a room. She further deposed that thereafter, they were taken to hospital. Her son succumbed to the injuries during her treatment at DDU hospital after 45 days.
Smt. Sheela was then cross examined by Ld. Addl. P.P. for the State on some material points and during her cross examination she admitted the suggestion given on behalf of State to be correct that accused had threatened her son many times to kill him prior to the incident and also that while assaulting her son, accused was repeatedly saying that Sonu had taken away his sister and he will kill him.
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37. During the course of arguments, Ld. Counsel for the accused has put emphasis on her statement on the point of weapon of offence used for inflicting injury on her body and has submitted that there is glaring discrepancy in the statement of PW1 as in her complaint Ex.PW4/A she has stated that she was assaulted by accused by handle of tava but in her statement before the Court, she has stated that the accused had thrown the brick towards her which hit her on her face. He has further submitted that due to such discrepancy her evidence is liable to be discarded. This plea of Ld. Counsel for the accused cannot be accepted. PW1 has clearly stated that accused was having brick and tava in his hands while he was in the room of complainant. The mere fact that complainant has stated about different objects in her two statements will not justify proving her entire evidence overboard particularly when she is an injured witness whose presence is incapable of being doubted. Her statement Ex.PW4/A was recorded soon after in hospital and she herself was injured and brutal attack on her son was a nerve shattering experience for her or anyone.
38. I find that PW4 is a natural and trustworthy witness. She has categorically deposed that the accused had inflicted head Page no. 25 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri injury to her son, I find nothing in the cross examination of PW4 to doubt her presence and her testimony. On scrutiny of evidence of complainant, I find that her presence at the spot is natural as she was residing in the same room where offence was committed. Accused was also residing in other room of same house. It is duly proved on record that complainant, the mother of deceased also sustained simple injury in the incident. There is nothing to doubt her testimony. She has categorically deposed that how accused, who was well known to her, inflicted multiple injuries on the head and face of his son and simple injury to her. She has no reason to implicate an innocent person in place of real assailant.
39. PW2 Ashok Kumar Pareva has deposed that accused Surender was residing in his house in a room on the first floor as a tenant with his sister namely Babli and mother in the year 2012 and complainant Sheela alongwith her son Sonu @ Lalu was also residing as a tenant in a room on the first floor of his house and 1015 days prior to the incident sister of accused went missing and accused was having suspicion that Sonu @ Lalu was having affair with his sister Babli and some arguments had taken place between accused and Sonu @ Lalu on this account.
He has further deposed that on 04.04.2012, he was Page no. 26 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri present at his house on the ground floor and at about 7:00 a.m. he heard some noise from the first floor and he went to the first floor and his mother Savitri Devi also came there. He saw that accused Surender was in the room and Sonu @ Lalu was hitting on his face with a brick. Sonu @ Lalu was sleeping on the floor. Complainant Sheela, mother of Sonu @ Lalu was also present there and she was trying to rescue her son from the accused. Ashok intervened but accused Surender assaulted on Sheela with handle of tava. Sonu @ Lalu sustained serious injuries. Ashok made a called at 100 number and by the time police reached the spot, accused had slipped from the spot. Ashok has further deposed that thereafter, police took Sonu @ Lalu and Sheela to hospital where Sonu @ Lalu succumbed to injuries.
Ashok has further deposed that he had joined the investigation of the case with police and accused Surender was arrested from Rajapuri Red Light on his identification and his personal search was conducted and accused made disclosure statement. Thereafter, Ashok pointed out the place of occurrence to the police and accused got recovered his clothes from his room which he was wearing at the time of incident and police seized the same vide seizure memo. He has further deposed that police had seized the Gadda and takia on which the deceased was sleeping Page no. 27 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri and police had also taken earth control and blood stained earth in his presence. Police had also seized the piece of brick and the handle of tava.
Ashok had also identified the case property i.e. brick, handle of tava, shirt and half pant, which were produced by the MHC(M) in Court, as Ex.P1, Ex.P2 Ex.P3 and Ex.P4 respectively.
40. In her testimony, PW3 Smt. Savitri Devi has deposed that deceased Sonu @ Lalu alongwith his mother Sheela Devi and accused Surender were residing on the first floor of the house as tenants. On the day of incident she was present at her house and on hearing noise she went to the spot alongwith her husband where accused Surender was quarreling with Sheela and Surender had already hit Sonu @ Lalu and her husband Ashok had informed police on 100 number. During her examination in chief, she had deposed about the incident happened but she resiled from some material facts, hence she was cross examined by Ld. Addl. P.P. for the State but she remained stuck to her stand taken by her in examination in chief. She however admitted the suggestion to be correct that she had seen the accused Surender hitting Sheela with the handle of tava.
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41. PW7 Pushpa has deposed that one day she was sleeping in her house and at about 77.30 am she heard some noise and she came out to check and found Surender hitting Smt. Sheela and Sheela's son lying there in a pool of blood. Thereafter, she deposed that she did not know anything about this case. Since, Pushpa was resiling from her previous statement made to the police, she was cross examine by Ld. Addl. P.P. for the State but throughout her cross examination on behalf of State, she remained stuck to her stand and denied all the suggestions put to her except the one that she had seen the accused Surender hitting Smt. Sheela with some object.
42. On the scrutiny of evidences of PW2, PW3 and PW7, I find that they have also witnessed the incident and their presence at the spot was natural as the rooms in which deceased and accused were residing separately belong to these witnesses and they all were residing there. PW2 is the landlord of the house and PW3 is mother of PW2 and PW7 is sisterinlaw of PW2. These witnesses have corroborated the testimony of PW4. There could be nothing elicited from their crossexamination by accused which could put dent on their testimonies.
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43. Ld. Defence Counsel has submitted that as per version of PW4/mother of deceased, PW2 Ashok intervened and rescued her from accused and he bolted the accused in a room but there is no any explanation as to how accused came out of that room and this creates serious doubts over the version of prosecution and involvement of the accused.
In this case, accused was arrested on the same day of incident, from Raja Puri red light. PW2 has deposed that accused was arrested on his identification. As per PCR form, PCR official sent information at/after 8:02 a.m. to control room that the accused was handed over to local police. There is no explanation on the part of prosecution on this point. But PW2 has deposed that accused had slipped from the spot. It appears that initially accused was caught hold by the persons gathered at the spot and he was kept in his room but subsequently he managed to escape from his room which was situated on the same floor of the house where room of complainant and deceased was situated. This fact of escaping of accused is corroborated from the recovery of his blood stained clothes from his room. As per FSL report Ex.PW18/A blood found on the pant of accused has been matched with blood of deceased. Accused was well known to the complainant and other eyewitnesses. Hence, nonexplanation on Page no. 30 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri the part of prosecution on the point of accused escaping from spot is not fatal to the prosecution's case.
44. It has been further submitted by Ld. Defence Counsel that presence of PW2 at the spot is disproved as her mother PW3 has admitted in her cross examination that her son Ashok had gone to school to drop his children. I find that the statement given by PW3 is being tried to be taken in piecemeal by Ld. Defence counsel. In her cross examination, PW3 has no where stated that at the time of incident his son PW2 Ashok was not there, but had gone to the school of his child.
45. As per FSL report Ex.PW18/A, blood on weapon of offence i.e. brick has been matched with the blood of deceased. While DNA could not be isolated from the handle of tava.
46. From the testimonies of eye witnesses PW4/complainant Smt. Sheela, PW2 Ashok Kumar Parewa, PW3 Smt. Savitri Devi and PW7 Ms. Pushpa and FSL report, it stands proved that the complainant and her deceased son were inflicted injuries by accused with brick.
47. Complainant as well as deceased both were brought to Page no. 31 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri the hospital in injured condition on 04.04.2012. As per MLC Ex.PW7/B, complainant sustained one CLW on her right side of face measuring 1.5 cm x 0.3 cm by blunt object and abrasion on back side of left flank region.
As per the MLC Ex.PW11/A, deceased Lalu had sustained following injuries:
1. CLW 3cm x .5 cm above over right eye brow;
2. CLW 3cm x .5 cm on right eye brow;
3. CLW 3cm x .5 cm on occipital region;
4. CLW 2cm x .5 cm on Inferial parital region;
5. CLW 3cm x .5 cm on Left Parietal region;
6. CLW 1.5 cm x .5 cm on nasal bridge;
7. CLW 1.5 cm x .5 cm inner side and lower lip;
8. CLW (U shape) .4 cm x .5 cm on mid of scalp region;
9. CLW 2 cm x .5 cm on upper lip inner aspect;
10.CLW 1 cm x .5 cm on chin region;
11.CLW 1cm x .5 cm on supra orbital region;
12.Deformity present on the face;
13. Swelling on B/L pari orbital region.
48. On 08.04.2012, in the hospital, complainant's son succumbed to his injuries. PW6 Shalini Girdhar had performed Page no. 32 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri autopsy on the dead body of deceased on 09.04.2012 at 11:45 a.m. and opined that the death was because of coma due to head injury by blunt force. In the postmortem report Ex.PW6/A, deceased Lalu @ Sonu, on examination, following observations have been made by the autopsy surgeon: On General Examination :
Rigor Mortis : Present.
Postmortem staining: Present on the back of the body except pressure points.
Condition of eyes: Both eyes closed with periorbital blackening present and subconjunctiva haemorrhage present in both eye.
Mouth : Closed
Nails cyanosed
Surgical bandage present over the head. Cannula prick marks present over left wrist. External Examination : External Injuries
1. Stitches 4 in numbers present over the forehead near the medical aspect of right eye.
2. Stitches 4 in numbers present over the nose.
3. One Stitches present over the right eye lid.
4. One Stitches present over left angle of right eye.
5. Two stitches present below right eye.
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6. Three stitches present over left eyebrow.
7. Two stitches present above left eye lid.
8. One stitch present at lateral angle of left eye.
9. One stitch present at left angle of left eyebrow.
10.Four stitches present at left parietal region.
11.Four stitches present at middle of scalp 13 cm from left mastoid.
12.Two stitches present over right frontal region. 2 cm from midline.
13.One stitch present above the upper lip.
14.Three stitches present at right chin.
15.Three stitches present at left chin.
16.One stitch present at mid occipital region, 13 cm from left mastoid.
17. Graze abrasion present over index finger of size 0.5 cm x 0.5 cm.
18. Graze abrasion present over middle finger of varying sized from 1 cm x 0.5 cm to 0.5 cm x 0.5 cm.
Internal Examination Head:
A : Scalp/skull : Sub scalp contusion present over the right frontoparietal region of size 14 cm x 10 cm. Closed fracture of anterior cranial fossa and left temporoparietal and Page no. 34 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri right temporoparietal bone. Closed fracture of nasal bones with associated haematoma.
B: Brain, Meninges & Vessels : SDH present over right and left parietooccipital region. Brain was oedematous, soft consistency. Haemorrhagis Contusion present over the right and left hemisphere.
C: Base of skull : Intact.
NECK :
1. Hyoid Bone/Thyroid Cartilage/Cricoid Cartilage : On cut section extra vasation of blood present on the left side and muscle deep. Right side thyroid cartilage fractured with associated haematoma. Lymph nodes congested.
2. Tracheal Rings & Mucosa : Congested
3. Any Foreign Body in Trachea : Forthy secretion.
In her deposition PW6 Dr. Shalini Girdhar has deposed that in this case, cause of death was due to head injury caused by blunt force which was sufficient to cause death in ordinary course of nature and all injuries were antemortem in nature and were of same duration. PW6 further deposed that subsequent opinion in respect to MLC No. 6114 and postmortem report no. 352/12 was sought by the police regarding weapon of offence and one handle of tava and one half brick were produced by the police alongwith Page no. 35 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri postmortem report and the abovesaid MLC and after considering the MLC and handle of tava, she was of the considered opinion that the injuries mentioned in the MLC could be produced by the weapon i.e. handle of tava and after considering the postmortem report she was of the considered opinion that the injuries mentioned in the postmortem report could be produced by the weapon i.e half brick or similar weapon.
On cause of death, autopsy surgeon PW6 Dr. Shalini Girdhar has opined as under:
"(1) The Cause of death is coma due to head injury caused by blunt force which is sufficient to cause death in ordinary course of nature.
(2) All the injuries are ante mortem in nature and same of duration.
(3) TIME SINCE DEATH : Approx. seventeen hours prior to post mortem examination."
49. From the medical testimony it stands proved that the deceased died a homicidal death and complainant sustained simple injury.
50. Now let me examine the intention of the accused. It is Page no. 36 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri the case of prosecution that accused inflicted injury on the body of deceased with intention to kill him. In her complaint, PW4 has stated that accused's sister left her house about 15 days prior to the incident and accused had doubt that deceased had taken away her sister. In this context, accused had threatened the deceased many time to kill him. She has further stated that while inflicting injury on the head and face of deceased, the accused stated that "sonu tu meri bahan ko bhaga ke le gaya hai, aaj main jaan se maar dunga".
In her testimony before the Court, complainant/PW4 voluntarily has not stated that the accused threatened her son, before the incident or at the time of inflicting injury, to kill him. But, on cross examination by Ld. Prosecutor and on leading question, this witness admitted that accused had threatened her son to kill him many times prior to incident and at the time of assault accused was saying that Sonu had taken away his sister and so he will kill him.
I find that complainant has not disclosed the date and place when any threat to kill was given by the accused to deceased. There should be specific narration about the date and place of extending threat to kill. Further I find that the fact alleged Page no. 37 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri by complainant that while inflicting injury it was being stated by the accused that he will kill the deceased is not corroborated by the testimony of other eyewitnesses. Other eyewitnesses who reached at the spot and witnessed the incident have nothing stated that the accused stated to kill the deceased. Hence, in my opinion, on oral evidence of complainant, it would not be safe to say that accused was having intention to kill the deceased and injuries were inflicted on his body with intention to kill him.
Now let me examine surrounding circumstances to ascertain the intention of accused. Autopsy surgeon PW6 has opined that injuries found on the body of deceased could be produced by the handle of tava or brick or half brick or similar weapon. Handle of tava and half brick were recovered from the spot. As discussed above, accused inflicted injuries to deceased and complainant. In his disclosure statement, accused has stated that he took the half brick from outside the door of room of deceased. There is no any explanation on the part of prosecution as to wherefrom weapon of offence i.e. brick or handle of tava were obtained by the accused. In the circumstances, it infers that weapon of offence i.e. brick was taken by the accused from outside the door of the room of deceased. Keeping in view the weapon of offence and the fact that accused came to the room of Page no. 38 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri deceased unarmed and picked up brick piece from outside the door of deceased and inflicted several injuries, it may be inferred that accused was not having intention to kill the deceased. If accused had an intention to kill the deceased, then certainly he would have been armed with any other weapon of offence, dangerous and sufficient to cause death of deceased at the spot. Even he would have taken kitchen knife which could be easily available to him. As such, I find no sufficient evidence to hold that the accused had intention to kill the deceased.
51. As per postmortem report, there were 18 external injuries found. Except two abrasion on fingers, all other external injuries were inflicted and found to be above the neck. Place of injuries shows that almost entire injuries have been inflicted on vital part of body. Since, these injuries were inflicted at the time when deceased was in his bed, hence, it can be said that all the injuries on head and face were inflicted with clear intention to cause them. In the facts and circumstances of the case, accused is liable to be attributed intention to inflict bodily injuries which have been sustained by the deceased. In the case in hand, autopsy surgeon has opined that cause of death is, due to head injury caused by blunt force which is sufficient to cause death in ordinary course of nature. As such, I find that prosecution has Page no. 39 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri been able to prove the case against accused under Section Thirdly300 IPC.
52. Accused has taken defence that complainant as well as her deceased son were assaulted by one Pawan and not by him. There is nothing to accept this plea of defence. Accused has not disclosed or there is nothing as to how accused got this knowledge.
53. This case is based on eyewitnesses of incident, however, prosecution has put forward motive behind the offence involved in present case that due to affair of deceased with sister of accused and disappearance of his sister, some grudge developed in the mind of accused and due to this grudge, accused has committed offence involved in present case. Ex.PW8/A and Ex.PW8/B show that a complaint was made against the deceased by the mother of accused regarding disappearance of her daughter and in this complaint suspicion was made over the deceased. In the circumstances it may be possible that accused inflicted multiple injuries on his face due to this grudge. The disappearance of sister of accused was much before the day of incident. There is no evidence to show that after the disappearance of his sister, accused has continued to suffer a prolonged spell of grave Page no. 40 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri provocation. By their nature, such provocations even when sudden and grave, cool of with passage of time often lapsing into what would become a motive for taking revenge whenever an opportunity arises. Deceased was inflicted injuries on his head and face by the accused while he was sleeping which rules out any fighting between accused and deceased. There is nothing to indict that the injuries were inflicted in a state of provocation or in a sudden fight by the accused as mentioned in the exceptions of Section 300 of IPC.
54. The above circumstances show that the accused intentionally inflicted head and face injuries though it may not be premeditated one. All the above circumstances certainly indicate such state of mind that accused aimed and inflicted these injuries with a half brick. As observed in Virsa Singh Vs. State of Punjab, reported in (1958) 1 SCR 1495, in the absence of evidence or reasonable explanation show that the accused did not intend to hit the head with brick with that degree of force sufficient to put the injured in coma, it would be perverse to conclude that he did not intend to inflict that injuries that he did. When once the ingredient "intention" is established, then the offence would be murder as the intended injuries are found to be sufficient in the ordinary course of nature to cause death. Therefore, an offence of Page no. 41 /42 26.09.2015 SC No. 18/14 State Vs. Surender FIR No. 114/12 PS Dabri murder is made out and sufficiently proved by the prosecution beyond all reasonable doubts.
55. In view of above scrutiny of evidences and material on record, it is held that prosecution has been able to prove the charges under Section 302/323 IPC against the accused Surender. Accused Surender is accordingly convicted under Section 302/323 IPC.
56. File be consigned to record room after due compliance.
Announced in the Open Court on the 26th September, 2015.
(Anil Kumar)
ASJ03/ Dwarka Courts
Delhi/26.09.2015
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