Delhi District Court
State vs Mohd.Sahil @ Chhotu S/O Mohd. Khursheed on 30 May, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 127/10
DATE OF INSTITUTION : 25.10.2010 (Initial date
of institution :
16.08.2010)
DATE RESERVED FOR JUDGEMENT : 18.05.2011
DATE OF DECISION : 30.05.2011
State Vs Mohd.Sahil @ Chhotu S/o Mohd. Khursheed
R/o Village Jhitkiya, PS Singheswar,
Distt. Madhopura (Bihar)
FIR No: 187/10
P.S. Sarita Vihar
U/s 304 IPC
JUDGMENT:
1. Prosecution facts in brief is that on receiving DD no. 37 A on 19.06.2010, IO ASI Jagdish Prakash reached spot on inquiry found that injured was taken to hospital by PCR. Thereafter, he reached the hospital where injured was declared unfit for statement and met his brother Mohd. Sona recorded his statement who stated that he was residing with his younger brother Mohd. Sadiq and working at Export factory Kalindi Kunj, State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 1 ) Shaheen Bagh, Jamia Nagar and 23 days back, their maternal Uncle's son Chhotu @ Sahil had come and stayed with them who was also working in the adjacent factory. He further stated that Chhotu earlier used to reside with them and has the habit of stealing small things, hence they had thrown him from their house. And two days prior accused Chhotu @ Sahil had purchased Chinese phone and that chinese phone was taken by his brother Mohd. Sadiq because accused Sahil had stolen their DVD. Mohd. Sahil kept grudge of it and after completion of their work when they were coming from their factory at 8.30 pm and when about at about 8.45 pm, they reached at Gas Godown, then accused Sahil all of a sudden taken out a concealed rod and hit his brother with that rod and said that "why he was not handing over his mobile phone". Further on being hit by that rod, the blood started oozing out from the head of his brother and he started screaming and thereafter, accused Sahil had ran away and somebody had called the police.
2. Pursuant to this statement an FIR u/s 308 IPC was registered. During investigation, the police had prepared the site plan at the instance of Mohd. Sona and arrested the accused Mohd. Sahil and further recorded his disclosure statement and on his instance recovered the rod. Injured Mohd. Sadiq died on 22.06.2010 and his postmortem report was collected on 23.6.2010 and it was opined in the postmortem report by the doctor that accused died of head injury produced by blunt force impact. On State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 2 ) completion of investigation chargesheet was filed u/s 304 IPC.
3. On committal charge u/s 304 IPC was framed against the accused and pleaded not guilty and claimed trial.
4. For substantiating charge, prosecution has examined 9 witnesses. PW1 & 2 are witnesses of spot and other witnesses are police officials and doctors. Brief summary of their depositions is as follows:
5. PW 1 Mohd. Sona, brother of the deceased Mohd. Sadiq deposed that he and his brother were staying in the house of one Head constable and accused Mohd. Sahil @ Chhotu present in the court also used to stay with them being cousin. Accused Mohd. Sahil had stolen the DVD of his brother Sadiq one month back and thereafter went to his village and when he came back to Delhi he used to stay with them and bought one Chinese mobile but his brother had taken that Chinese mobile in lieu of that DVD and because of this relations between the two were not good and they stopped talking with each other. He further deposed that on 18.6.10 he alongwith his brother Sadiq were going to their room at Gadda Mohalla, Madanpur Khader from Shahin Park, when they reached near gas godown, Sahil came with a rod and hit on the head of his brother several times, when he shouted for help, accused fled from the spot and police was informed at 100 number and within 1520 minutes police reached State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 3 ) and taken his brother to AIIMS hospital and recorded his statement Ex.
PW1/A. At this stage, Ld. Addl. PP was allowed to put leading question. On asking leading questions, this PW correctly identified accused Mohd. Sahil and further stated that it is correct that this incident took place around 8.15 pm and further deposed that it is correct that his brother was bleeding when he fell down on the ground and remained admitted in the hospital for 23 days and died on 23.06.2010 and further identified the dead body of Mohd. Sadiq vide Ex. PW1/B. He further deposed that accused was arrested vide Ex. PW1/ D and his personal search memo was also conducted.
6. In cross examination he deposed that he had not stated to the police in his statement that he and his brother Sadiq and accused were coming together from factory. Confronted with statement Ex. PW1/A from portion A to A. He further deposed that he had stated to the police that accused took out the rod all of a sudden which he was hiding. He further deposed that he had stated to the police that he alongwith his brother reached at Sarita Vihar, accused came from the bushes started beating his brother Mohd. Sadiq. He further deposed that the distance between his place of work and residence might be around one kilometer and further deposed that he do not know of what material rod was made of since he had not seen the same. He further deposed that the same was about 3 ft. and accused hide the rod in his shirt. (front side). He further deposed that State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 4 ) when the incident took place, he was purchasing vegetable and the place where the incident occurred and purchasing the vegetable would be about 50 fts. away. He further deposed that while running accused had left the rod at the spot. He further deposed that the accused came from the village after about one month and he had not made any complaint to the police regarding theft of DVD. He further deposed that accused hit on the head of his brother about 5 to 6 times and had taken his brother to the hospital and police had not seized his clothes which were stained with the blood. He further deposed that phone call was made by one person who was present there having the stock of building material but he do not know his name. He further deposed that his statement was recorded by the police in the hospital. He further deposed that accused was apprehended from the factory where he was working on the day of incident at about 9.30 /10 pm and was brought to PS thereafter. He further denied the suggestion that he was not present when the incident occurred. And further denied the suggestion that he had not seen the accused while assaulting his brother.
7. PW 2 Manoj Choudhary deposed that on 18.06.2010 at about 8.45 pm, when he was present at his shop a boy was lying in injured condition and another boy was running towards village and thereafter he called at 100 number then his brother came and PCR van had taken injured to hospital. And on the next day police officials came and made inquiries from him.
State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 5 ) At this stage, as this witness was resiling from his earlier statement, he was cross examined by Ld. Addl. PP. On cross examination by Addl. PP, he deposed that two boys were running towards kacha rasta and one boy had hit another boy with stick who was running ahead. He further deposed that it is correct that blood was oozing from the head of the injured boy and the boy who was shouting revealed his name Sona and name of the injured as Sadiq. He further deposed that it is incorrect to state that next day police got one boy namely Sahil @ Chhotu and he identified him as same person who hit Sadiq in the night. He further deposed that he cannot identify the accused Sahil as lot of time has passed. He further denied the suggestion that he had seen the accused hitting the injured Sadiq. He further denied the suggestion that he was deliberately not identifying the accused mohd. Sahil present in the court.
8. In cross examination on behalf of the accused, he deposed that brother of injurd whom he saw on that date came on the spot when police was taking injured to the hospital in gypsy. He further deposed that no. of labours were also present near the spot at that time.
9. PW 3 Ct. Balaji Shinde deposed that on 18.6.10 at around 9.05 pm on receiving DD no. 37 A he alongwith ASI Jagdish Prasad went near stock of Manoj Choudhary Madan pur Khadar and came to know that injured was taken to hospital and in the meanwhile HC Anil Kumar came and State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 6 ) informed that injured was taken trauma center AIIMS. Thereafter he alongwith ASI Jagdish Prasad went to trauma center, AIIMS deceased Sadiq was found admitted there and was not fit for statement. IO collected his MLC. Thereafter, he alongwith IO went to spot and brother of the injured also came to spot and on his statement, rukka was prepared and handed over to him for registration of FIR. He further deposed that relatives of the inujured told them that the accused is present at the house of HC Jitender and accused Mohd. Sadiq was found there and was arrested. His personal search memo disclosure statement and arrest memo was prepared and on his disclosure the stick/ danda was recovered near the spot. Accused was brought to PS and case property was deposited in the Malkhana.
10. In cross examination, he deposed that the brother of the injured met them on the spot when they returned from the hospital at around 11.30 pm. He further deposed that he do not know the name and address of the person who informed the police about the presence at the house of Hawaldar and Rajinder was also not present at that time. He further deposed that the IO had not prepared the site plan of the place where the accused was arrested. He further deposed that stick (danda) was lying open at the shop but he cannot say whether there was blood on the danda or not. And he further deposed that he do not know whether in the said seizure memo the fact about the presence of the blood on danda was mentioned or not.
State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 7 ) He further denied that the suggestion that danda was planted onthe accused. He further denied the suggestion that he had not gone to the spot alongwith IO. And deposing after preparing of the notes.
11. PW 4 Dr. Zafar Ismail deposed that on 18.6.10 patient /accused Mohd. Sahil was brought to casualty of AIIMS hospital by one Ct. Amrit Singh with alleged history of pain in abdomen and burning micturition and on local examination vitals were stable and there was no history of fever, vomiting and loose motion and further no sign of any external injuries.
12. PW 5 Dr. Dinesh Yadav deposed that on 18.6.10 when he was working as Jr. resident Trauma Center AIIMS, at about 9.40 pm ASI Giri Raj brought one injured Sadiq and on local examination one lacerated injury was found on scalp and he further deposed that he prepared MLC of injured Ex. PW5/A and patient at that time was unfit for statement. In cross examination he deposed that he had not brought the record of the patient and this injury is not possible by falling on the stone, however, if a person falls on pipe like object then such kind of injury is possible.
13. PW 6 Dr. R.P. Singh deposed that on 23.6.10 he conducted the post mortem of deceased Mohd. Sadiq and noticed the following external and internal injuries:
State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 8 ) External injuries:
a. partially healed lacerated would of size 2 cm was present on the right side of forehead. b. Bilateral frontal craniotomy wound was present.
Internal findings: Fracture of both frontal bones was present. Contusions were present on both frontal lobes. Extravasation of blood was present in both frontal region. Lungs were congested. Stomach was empty, walls - NAD. Internal organs were congested. Opinion: Cause of death in this case is coma due to head injury produced by blunt force impact. His detailed report is Ex. PW6/A.
14. He was further recalled for further examination on application u/s 311 Cr.P.C and further deposed that one wooden rod was brought by IO for giving opinion whether the injuries mentioned in MLC were possible with that rod and opined that injuries could be possible with the given weapon of offence. In cross examination he deposed that injury no. 1 mentioned in post mortem Ex.PW6/A could be by fall on hard surface and injury no. 2 mentioned in post mortem report Ex. PW6/A is surgical wound.
State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 9 )
15. PW 7 ASI Ramesh Pal is a duty officer who registered the FIR at 12.25 am on 19.6.10.
16. PW 8 Mohd. Shadir deposed that deceased was his mamera bhai and he came to know that accused Mohd. Sahil @ Chhotu had hit him with the rod and further identified the dead body of the deceased Mohd. Sadiq. In cross examination he deposed that at the time of incident he was in his native village and had not seen hitting the deceased.
17. PW 9 ASI Jagdish Prasad Investigating officer deposed that on receiving DD no. 37 A he reached the spot and some people found present at the spot told the injured was taken to hospital by PCR van and thereafter he alongwith Ct. Balaji on receiving another DD went to hospital and the injured was declared unfit for statement vide MLC Ex. PW5/D and found his brother injured in the hospital on recording his statement, he prepared rukka and sent it for registration of FIR and thereafter came back to spot and his brother in the meanwhile Sona had also come to the spot and at his instance site plan was prepared. And at about 1.30 am one boy was seen hiding near gas godown was apprehended and complainant Sona had identified him as Mohd Sahil @ State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 10 ) Chhotu and told him that he had caused injuries to his brother. Pursuant to arrest of accused on his disclosure, one danda was recovered near the stock of material and thereafter he prepared the seizure memo of the same and recorded the statement of witnesses and taken the accused to the hospital for medical check up and on 22.6.10 he received the information that injured Mohd. Sadiq died and lateron on 23.6./10 handed over his dead body to Mohd Shadir brother of deceased.
18. In cross examination, deposed that he reached the spot at 9.15 pm and remained there for half an hour and no blood stains were found at the spot and at the spot building material is being stocked and at that time Manoj Choudhary owner of the stock was not found present there and reached hospital around 11.15 pm and remained there for half an hour. He further deposed that he recorded the statement of the complainant in the hospital and found no vegetable vendor near the spot. He further deposed that no source of light was shown in the site plan neither the place from where the danda was lifted was shown in site plan. He further deposed that even the brother of deceased was not shown as witness to the seizure memo of danda Ex.PW3/A and the place where the accused found hiding is around 50 meters from spot. He further deposed that he reached the spot after visiting the hospital at around 12.15 am and brother of the accused also came to the spot after half an hour of his reaching the spot. And no blood stains were found on the recovered danda . He further deposed that he State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 11 ) had not taken the record of treatment from 18.6.10 till his death. He further denied the suggestion that danda has been falsely planted upon the accused and accused was falsely implicated in the present case.
19. In reply to the incriminating circumstances put to the accused u/s 313 Cr.P.C he denied the same and further submits that he was falsely implicated in the present case and not opted to lead defence evidence.
20. Ld. Counsel for the accused argued that PW 1 Mohd. Sona was an interested witness and there are material contradictions in his deposition regarding his presence at the spot. Further, PW 2 Manoj Choudhary another ocular witness cannot be relied upon as he turned hostile. He further submitted that as far as recovery of danda and arrest of accused persons are considered both appears to be fictitious on the face of it and prosecution unable to prove their case and accused be granted benefit of doubt. Ld. Addl. PP on the other hand submitted that testimony of PW 1 & PW 2 are reliable and both have proved the incident of hitting by the accused beyond doubt and their presence at the spot was natural and mere defects in police investigation over the recovery of danda and arrest of accused persons do not entitle the accused for any benefit of doubt. Prosecution by way of cogent and reliable evidence proved commission of offence u/s 304 (II) IPC by accused.
State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 12 )
21. Arguments heard. Record perused.
Depositions of PW 1 Mohd. Sona and PW 2 Manoj Choudhary, witnesses of spot:
22. PW 1 Mohd. Sona, brother of the deceased Mohd. Sahil had deposed that on 18.06.2010 when he alongwith his brother Sadiq was going to their room and when they reached near gas godown accused Sahil came with rod and hit on the head of deceased several times. He shouted for help but the accused fled away from the spot and within 1520 minutes PCR reached at spot and the deceased was taken to the hospital and in the hospital his statement was recorded pursuant to which FIR was registered. This witness was put some leading questions by Ld. Addl. PP with permission of the court pursuant to which he identified accused Mohd. Sahil and further submitted that it is correct that incident took place at around 8.15 pm and further deposed his brother was bleeding when he fell down on the ground and died on 23.6.01. In cross examination, he deposed that he did not stated to the police that he alongwith his brother were coming from the factory (confronted with his statement Ex. PW1/A). Further he could not tell in cross examination of what material the rod was made of and at the time of incident he was purchasing vegetables and the distance between the place of incident and purchasing of vegetables is 50 fts. and accused had left the rod at the State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 13 ) spot while running. Further accused hit on the head of deceased about 56 times and he had taken his brother to the hospital. And police had not seized his clothes which were stained with the blood. He further deposed that in cross examination that on the day of incident accused was arrested at about 9.30 / 10 pm. And phone call to the police was made by one person who was present there having stock of building material but do not know his name.
23. PW 2 Manoj Choudhary also deposed that on 8.06.2010 at about 8.45 pm when he was present at his stock then a boy was lying in injured condition and another boy was running towards village and he called 100 number and then his brother came. PCR had taken that injured to the hospital. Ld. Addl. PP had requested to cross examine this witness as he was resiling from his previous statement. In cross examination, he deposed that blood was oozing from the head of injured boy and it is correct that the boy who was shouting revealed his name as Sona and revealed the name of injured as Sadiq. But he denied other circumstances that police had brought Mohd. Sahil on next day and he identified him on said day. He could not identify accused as lot of time had passed. Further he denied that he had seen the accused hitting the injured with the stick.
24. Ld. Counsel for the accused submitted that this witness PW1 cannot be relied upon because firstly as per his statement Ex. PW1/A he stated that State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 14 ) he and his brother were coming together from factory but in cross examination he contradicted on that point and further in cross examination he stated that he is around 50 ft. away when the said incident had taken place. And further he deposed that accused was apprehended at 9.30/10 pm from his factory though as per record he was apprehended at 1.30 am. Further PW 2 had not identified the accused who is the only independent witness. PW 1 is highly interested witness being brother of the deceased and these infirmities in these evidence are material and casts significant doubt of his presence at the spot. Ld. Counsel further submitted that even in the MLC by which the accused was taken to hospital his name was not mentioned as a person brought to the hospital. Ld. Counsel for the accused further submitted that as per deposition of PW 3 Ct. Balaji, statement of PW1 was recorded by the IO at the spot pursuant to which rukka was prepared and FIR was registered and in contradiction to the same as per deposition of PW 9 ASI Jagdish Prasad and PW 1, the statement of PW 1 was recorded at hospital and the rukka was sent for registration from hospital.
Circumstance of recovery of danda (weapon of offence) and arrest of accused Mohd. Sahil:
25. As per seizure memo of danda (rod) Ex.PW 3/A, it was recovered at the instance of accused from the kacha rasta near Manoj stock Madanpur State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 15 ) Khadar, New Delhi. PW 3 Ct. Balaji Shinde accompanied IO Jagdish Prasad at the time of seizure of this danda and deposed that the danda was lying in open and do not know whether there was any blood on that danda or not. PW 9 ASI Jagdish Prasad in cross examination deposed that no blood stains were found on the danda. Ld. Counsel for the accused submits that if a person is hit by a danda 56 time then it is unnatural that there is no blood attached with the danda. PW 1 in his cross examination had deposed that accused had left the rod at the spot while running.
26. According to arrest memo Ex. PW1/D of accused Mohd. Sahil @ Chhotu accused was arrested on 19.06.2010 at about 1.30 am in the night near gas godown Madanpur Khadar, New Delhi in the presence of PW 3 Ct. Balaji and PW 1 Mohd. Sona. IO PW 9 ASI Jagdish Prasad in his deposition stated that he had seen the boy at around 1.30 am hiding near gas godown and they apprehended that boy and the complainant Mohd.
Sona had identified him as Mohd.Sahil @ chhotu. PW1 Mohd. Sona in his deposition stated that the accused was apprehended from the factory at Shaheen Bagh where he was working at about 9.30/10 pm. PW 3 Ct. Balaji Shinde deposed that accused was arrested from the house of Rajinder Hawaldar in Madanpur Khadar. All the 3 witnesses of arrest i.e, the PW 9 IO ASI Jagdish Prasad, PW 1 Mohd. Sona and PW 3 Ct. Balaji have given different versions regarding the place and time of arrest of accused Mohd. Sahil.
State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 16 ) Medical evidence:
27. As per prosecution story the accused was taken to hospital by the PCR immediately after 1520 minutes of the incident and as per MLC Ex.
PW5/A he was brought at hospital at around 9.40 pm through one ASI Giri Raj. And patient was found unfit for statement and MLC showing laceration wound on the head and opined injury to be dangerous in nature. Post mortem report Ex. PW6/A depicts alleged history of assault on 18.6.10 and fracture and contusions present on both frontal bones. PW 6 Dr. R.P. Singh who conducted the post mortem of deceased Mohd. Sahil deposed that there are two injuries, injury no.1 is a partially lacerated wound of 2 cm on head and second injury is surgical wound. And the cause of death in this case is comma due to head injury produced by blunt object. In cross examination, he deposed that the said injury could be possible by fall. However, PW 5 Dr. Dinesh Yadav who prepared the MLC of the injured deposed that this injury is not possible by falling on stone but if a person fall on pipe like object then such kind of injury is possible.
28. Ld. counsel for the accused submitted that as per the statement of PW 1 the accused had hit the deceased 56 times but as per MLC only one injury is mentioned therefore, there is a doubt that PW 1 Mohd. Sona State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 17 ) was present at the time of incident. Postmortem report Ex. PW6/A shows fracture and contusions present on both frontal lobes, then by mere mentioning of one injury in the postmortem do not necessarily indicates that the deceased was hit only once. Further, mere suggestion that the injury can be possible due to fall without any further corroborative evidence do not possibly cast doubt over the prosecution story that the deceased was hit by danda by accused.
Discrepancies in the prosecution story:
29. According to the statement of PW 1 vide Ex. PW1/A at the time of incident he was going with his deceased brother when the accused inflicted injury by rod but in cross examination he deposed that he was 50 fts. away when the said incident took place and buying vegetables. Further, as per statement Ex. PW1/A accused had left the rod at the place of occurrence after hitting his brother therefore, the recovery of the same from the stock at Madanpur Khadar appears to be meaningless. Further, all the 3 witnesses of arrest as discussed above stated different places and timings of the arrest of the accused. And even despite the oozing of the blood from the head there is nothing on the record that at the place where the incident took place there was any blood or even the blood stained clothes of the brother of the deceased (PW1) was not seized by the police. Now the question arises whether despite these material State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 18 ) discrepancies the presence of PW1 at the spot could be believed or not.
30. Ld. Counsel for the accused deposed that PW 2 Manoj Choudhary have turned hostile during his examination and had not supported the prosecution case and even PW 1 could not tell the material facts regarding the incident, time of the incident, falling of blood on ground etc. and for this purpose the Ld. Addl. PP had asked leading questions to this witness. Therefore, these two witnesses are not reliable.
31. Apex court in "Khujji @ Surendra Tiwari Vs. State of MP AIR 1991 SC 1853" observed that the evidence of the hostile witness cannot be rejected in toto and such witness cannot be treated as effaced off or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof. In "Rabindra Kumar Dey Vs. State of Orissa AIR 1997 SC 170" and in "Gurpreet Singh Vs. State of Haryana AIR 2002 SC 3217" apex court had observed that the court can rely upon the said part of the testimony of hostile witnesses which is found to be credible. The apex court further in "State of Rajasthan Vs. Smt. Kalki, AIR 1981 SC 1390" observed that a witness may be called interested only when he or she derived some benefit from the result of the litigation and a witness who is a natural one and is only possible eye witness in circumstances of the case cannot be said to be a interested witness.
State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 19 )
32. Now let me examine the depositions of PW 1 Mohd. Sona, brother of deceased & PW 2 Manoj Choudhary who was declared hostile by the prosecution in light of above discussed propositions. PW 2 Manoj Choudhary, had deposed before being declared hostile that on 18.6.2010 at around 8.45 he had seen a boy lying in injured condition and another boy was running towards village and he called at 100 number. Then his brother came and PCR had taken injured to hospital. On cross examination by Ld. APP, he deposed that it is correct that the boy was shouting revealed his name as Sona and revealed the name of injured as Sadiq and he further deposed that he cannot identify the accused as lot of time had passed and further denied the suggestion that the police had brought him on the next day for identification before him. Credible facts coming from his deposition that incident of injury took place near his stock in Madanpur Khadar and immediately 100 number was called and the brother of the injured alongwith PCR had taken injured to the hospital. Therefore, testimony of PW 2 confirms the presence of PW 1 at spot. Further, this witness PW 2 appears to be reliable on factum of place of occurrence, taking of injured from spot to hospital at around 8.45 pm by his brother and immediate information to police.
33. Though there are discrepancies in the depositions of PW 1 as per his statement before the police and his testimony as PW 1 because in his State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 20 ) cross examination he had stated that he had not told the police that they are coming together from their factory and further it came in cross examination at the time of incident he was 50 ft. away and purchasing vegetables. But from his deposition it is gathered that accused after hitting the deceased left the stick/danda at the spot and ran away. Further PW2 also corroborated the fact that he had seen the accused running and person shouting at him revealed his name Sona i.e, PW 1 and name of the injured Sadiq. Then immediately the injured was taken to hospital in PCR van by PW 1 Sona. Hence, the presence of PW 1 at spot appears natural. Even despite being declared hostile, material portion of the testimony of PW 2 regarding place of occurrence, presence of PW 1 at spot etc. remains credible and presence of both the witnesses at the spot appears to be natural.
34. Apex court in various judgments have observed that most of the witnesses from one party or another while giving evidences introduce exaggeration or add embroidery to their statement and in Jakki @ Selvlraj Vs. State 2007 Cr.l.J 1671 SC, had observed that skill of appreciation of evidence demands disengaging truth from falsehood therefore wholesome rejection of testimony of a witness because of some or the part of his statement has not found true may lead to injustice. Even if it is presumed that PW 1 had not seen the actual hitting of the injured as as he was 50 ft away from the injured and purchasing vegetables but this anamoly could State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 21 ) not destroy the factum of his presence at the spot which is substantiated by other facts like running of accused from the spot and leaving the danda at the spot while running. Further, the corroboration of the said facts by PW2 and immediate taking of deceased to hospital by PCR van.
35. Once presence of PW 1 & PW 2 at time of incident is established then falsity of other circumstances that is recovery of danda, place and time of arrest of accused, non recovery of blood at spot and small contradictions in explanation of injuries do not appear to fatal to prosecution case. Further, it is unlikely that PW 1 will implicate his cousin brother in false case without any tangible motive. The motive as pleaded by Ld. Counsel for accused that accused has stolen DVD of deceased is inconsequential. Even PW 8 would Mohd. Shadir corroborated that he came to know that accused had hit the deceased with rod. No reason coming forth why PW 1 & PW 8 falsely name accused who is also their cousin brother. Therefore, defects in police investigation even on material aspect could not outweigh the credible aspects of testimony of PW 1 & PW 2 on core points.
36. Motive of the incident as alleged by the prosecution is that accused is feeling grudge of the fact that the deceased had kept his new chinese mobile because the accused had stolen the deceased DVD. And because of this grudge the accused hit the deceased with the stick on the head and State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 22 ) ran away from the spot and was apprehended as per the deposition of PW 1 Mohd Sona from his factory. The sequence of events suggests that the intention of the accused is to inflict the injury on the deceased only and not to kill him. In case the accused has intention to murder the deceased he might not have found working in his factory after the incident as per the deposition of PW 1 from where he was arrested. Further the injuries as per medical report suggests that fracture of both frontal bones and contusions present on both frontal bones shows that the injury is dangerous and could be caused by the danda. Despite disbelieving the recovery of danda in the manner as alleged by police, it can't be inferred that injury was not received by danda.
37. Apex court in "Mirza Hidayatulla Baig Vs. State of Maharashtra , 1979 AIR (SC) 1525" observed that as the accused aimed the blow at the head of the deceased which is vital part of the body there can be no doubt that he must be presumed to have the knowledge that the death was likely result of the said. Further Allahabad High Court in case tittled as "Nankho Vs. state 1998 Crl. J 2890" have observed that lathi blow inflicted by accused on the head of deceased with force resulting in grievous hurt then it can be inferred that the accused was having knowledge to cause death by such blow. Keeping in view the above propositions and facts and circumstances of the present case as the accused has inflicted the danda blow on the head of the deceased State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 23 ) resulting in the fracture of frontal bones, therefore, knowledge that the death was likely result of that act could certainly be attributed to the accused. Hence, accused had committed an offence u/s 304(II) IPC.
38. On overall appreciation and cumulative effect of the evidence on record as discussed above, prosecution is able to prove its case beyond reasonable doubt despite defects in police investigation. Therefore, accused Mohd. Shahil @ Chhotu is found guilty of commission of offence u/s 304(II) IPC and convicted accordingly.
Announced in the open court (AJAY KUMAR JAIN)
on 30th May, 2011 ASJ03/SE/New Delhi
State Vs. Mohd. Sahil @ Chhotu (contd....Pg- 24 )