Delhi District Court
State vs Raj Kumar on 4 January, 2016
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0379412015
Sessions Case No. 40/1/2015
FIR No. 906/2015
PS Aman Vihar
U/s 304/34 IPC
State Versus Raj Kumar
Son of Sh. Hari Prasad,
Resident of H. No. 52, Karan Vihar, Part-4,
Gali No. 4, Kirari, Delhi.
Date of institution in Sessions Court: 19.10.2015
Date of conclusion of arguments : 21.12.2015
Date of pronouncement of judgment: 02.01.2016
Memo of Appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State.
Sh. Pawan Sharma, learned defence counsel for accused.
JUDGMENT
1 Accused Raj Kumar used to reside at H. No. 52 (situated at Khasra No. 531-530), Karan Vihar Part-4, Gali No. 4, Kirari, Suleman Nagar, Delhi with his mother, two brothers and one sister. On the night intervening 25.07.2015 & 26.07.2015 at about 4.00 AM, he heard some movement which woke him and his sister Shakuntla up. They saw one intruder aged 23-24 years inside their house whose name was later on ascertained as Rahul (victim herein).
2 Finding that family members of said house had got up, he attempted to flee away. When Rajkumar and his family members tried to apprehend him, he pushed Shakuntla. In order to escape from there, said intruder Rahul picked up one brick and threw the same upon accused Rajkumar. Accused Rajkumar also FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 1 retaliated. Finally, Rahul was apprehended. Many other people also collected at the spot and they also gave thrashings to him.
3 It will be imperative to mention right here that such version was revealed by none other than accused Rajkumar himself. He informed police as well as relatives of Rahul about the entire episode.
4 Shiva @ Romi, who happened to be the brother of deceased, disclosed that he had received a call on his mobile number 9211148482 from one mobile number 9250371654 and the caller had informed that his brother had been beaten up and asked him to come at Karan Vihar-4 and to take him away. He immediately rushed to that place where he saw Rahul lying in a street in conscious state. He also claimed that his brother Rahul was not a drug-addict and never used to commit any theft and rather he was a drummer (Dhol wala). Statement of Sunil (PW5), father of Rahul, was also recorded and he also claimed that his son never used to commit any theft and he did not know as to how his son Rahul reached Karan Vihar.
5 Rahul was brought to SGM Hospital by Police Control Room (PCR) officials at 7.50 AM where he was declared brought dead as ECG was reflecting straight-line. Shiva @ Romi also accompanied Rahul in PCR vehicle.
6 Crime Team was called at the spot and house of accused was inspected and photographs were also taken and case was registered for commission of offence under section 304/34 IPC.
7 Postmortem report indicated that death was due to cerebral damage, as a result of blunt object diverted upon head and that such injury was sufficient to cause death in ordinary course of nature.
8 I would also like to lay emphasis here that since accused Rajkumar had informed the police about presence of thief inside his house, on the basis of his report, one FIR, prior in time, was recorded. It was registered as FIR No. 905/2015 u/s 457/380/411 IPC.
FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 2 9 After comprehensive investigation, police filed charge-sheet against accused Rajkumar for commission of offence under Section 304/34 IPC and it was also mentioned therein that, in future, if there was any clue regarding identity of any such other public person involved in thrashings given to Rahul, further investigation would be carried out.
10 It is in these circumstances that a charge-sheet against accused Rajkumar was laid before the concerned Magisterial Court on 05.10.2015.
11 Since offence under Section 304 IPC was triable exclusively by the Court of Sessions, case was ordered to be committed to the Court of Sessions.
12 Case was accordingly received on allocation by this Court on 09.10.2015.
13 Arguments on charge were heard on 20.10.2015 and accused was ordered to be charged under Section 304/34 IPC. Accused pleaded not guilty and claimed trial.
14 Prosecution was directed to adduce evidence and has examined 12 witnesses who can be classified as under:
Public witnesses:
i) PW5 Sunil (father of victim)
ii) PW6 Shiva (brother of victim) Witnesses to investigation:
i) PW1 HC Jaipal Singh (Duty Officer)
ii) PW2 Ct Ram Kumar (Witness to arrest of accused)
iii) PW3 HC Virender (IO of case FIR No. 905/15)
iv) Ct Mandeep (PCR official)
v) PW7 SI Harinder (Investigating Officer)
vi) PW9 Mukesh Kumar (videographer of postmortem)
vii) PW10 ASI Raj Kumar (PCR official)
viii) PW11 Ct Vinod Kumar (Crime team photographer) FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 3 Doctor/Expert witness:
i) PW8 Dr. Brijesh Singh ( for proving MLC of deceased)
ii) PW12 Dr. Varun Garg (Autopsy surgeon)
15 Accused, in his statement under Section 313 Cr.P.C., pleaded innocence and claimed that he had been falsely implicated. He asserted that a thief, whose name later on was found to be Rahul, had trespassed in their house. Such thief had removed money from one box and had also stolen their three mobiles. On hearing some movement, accused got up and saw him and raised shouts. When accused tried to chase him, Rahul picked up one half piece of brick and hurled the same towards accused which hit him on his leg. On hearing shouts, public persons caught him and gave him beatings. He also stated that he made a call and requested his relatives to come there immediately. He, however, did not desire to lead any evidence in defence.
16 I have heard learned Addl. P.P. for State and learned defence counsel and carefully perused the entire material available on record.
17 Sh. Jindal has contended that prosecution has been able to prove its case to the hilt. He has argued that it has come on record that victim had trespassed the house of accused and had come there with intent to commit theft. He has also argued that there is nothing on record which may indicate that such thief intended to cause any death or serious injury to the inmates of the house and accused had no reason to exceed the right of private defence. He has argued that though, according to accused, injuries had been caused by public persons yet fact remains that such burden has not been discharged by him in any manner whatsoever. He has argued that even otherwise, accused had every reason to get infuriated when he saw a thief inside the house and the situation became aggravated as such thief had even pushed his sister and, therefore, accused retaliated and the injuries in question had been given by him and his defence that he was not involved in such beatings is nothing but false and lame. He has also contended that accused has miserably failed to discharge burden as envisaged under Section 106 of Indian Evidence Act.
FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 4 18 Sh. Pawan Sharma has refuted all the aforesaid contentions. He has argued that victim had entered the house of accused in order to commit theft and he was, actually, able to steal away three mobile phones and cash amount of Rs. 1,500/-. He has also contended that when accused woke up due to movement of victim in the house, such thief became perplexed and started running. Family members of accused tried to catch him and, in the process, accused hurled a brick piece towards such thief which hit him on his leg. Thereafter, on hearing shouts, public persons collected and such thief was beaten up by the public persons only.
19 It has been argued by Sh. Sharma that prosecution has not been able to bring on record any statement or version of any adjacent neighbour or resident of the locality who might have whispered even a single word against the accused. He has argued that public became furious and had given thrashings to such thief and accused rather tried to resist such public fury as has even been admitted by brother of such thief. He has also argued that family members of victim/thief have rather tried to conceal the material facts and have falsely projected him as drum- beater (drummer) whereas he was actually a thief. He has also argued that for the reasons best known to the investigating agency, no inquiry was made from one Kale with whom victim had allegedly left the house previous night. He has also drawn my attention towards the postmortem report and testimony of the concerned autopsy surgeon who deposed that alleged fatal injury was possible by fall even. It has thus been asserted that prosecution has not been able to prove its case.
20 It is very much evident that controversy lies in a very narrow and constricted compass.
21 There does not seem to be any dispute with respect to the fact that such alleged thief had trespassed in the house of accused. It is also not in dispute that accused Raj Kumar had himself informed the police and had also made call to the relatives of such alleged thief. Accused has been charge-sheeted and charged u/s 304/34 IPC. The gravamen of charge against him is specific and pin-
FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 5 pointed. As per state, he and other unknown public persons had beaten-up such alleged thief and caused his death.
22 I need not remind myself about Exception 2 attached with Section 300 IPC. Such exception reads as under:
"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."
23 Police had reached at the spot i.e. house of accused on the basis of the call made by accused himself. On his report, FIR No. 905/15 was registered against such alleged thief for commission of offences u/s 457/380/411 IPC. Naturally, since the accused in that case i.e. said alleged thief Rahul has already expired, the proceedings arising therefrom must have already abated.
24 Argument of defence is plain and straightforward.
25 Sh. Pawan Sharma does not qualm about the presence of victim in- side the house of accused. He simply contends that accused himself had not given any beating. He has contended that there was only an attempt to catch him and on hearing the shouts and noise, the public persons collected at the spot and they had given trouncing to said thief and accused is not author of any such injury at all.
26 Undoubtedly, there is no independent eye-witness of the alleged occurrence. But at the same time, there cannot be anything unusual or strange in it. Rahul had, illegally and unlawfully, trespassed inside a private property at dead hour of the night and, therefore, the witnesses could have been the family members/inmates of said house only and none-else and thus manifestly, there was no possibility of any independent witness. Accused has a mother, two brothers and a sister but he has not bothered to examine anyone of them in his FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 6 defence. It is also important to take note of what he had stated before the Court when his statement u/s 313 Cr.P.C. was recorded. It will be appropriate to extract question No. 1 and question no. 2 and the corresponding answers. These read asunder:-
"Q1 It is in evidence against you that on 26.07.2015 at about 6.56 AM PW6 Shiva was going towards his workplace and was near Peera Garhi where he received a telephonic call on his mobile number 9211148482 and you accused Rajkumar told him to come to Karan Vihar as Rahul (deceased) had been beaten up very badly. What do you have to say?
Ans. A thief, whose name later on was found to be Rahul, had trespassed in our house. He had removed money from one box and had also stolen our three mobiles. On hearing some movement, I got up and saw him and raised shouts. On noticing me, he started running. When I tried to chase him, he picked up one half piece of brick and hurled the same upon me which hit me on my leg. On hearing our shouts as well as shouts of our family members, the public persons caught him and gave him beatings. Since, he wanted to make call to his family members, I had made said call and made request to his relatives to come there immediately.
Q2 Further that as per PW5 Sunil, his son Rahul left house on 25.07.2015 claiming that he was going for the purpose of beating drums but he did not return in the night and PW6 Shiva, his younger son, received a call at 6.56 AM and caller had told that Rahul had been badly beaten up and he be lifted from there. What do you have to say?
Ans. I do not know but Rahul had committed theft at our house and he was beaten up by public."
27 In the backdrop of the aforesaid answers given by the accused, let me now evaluate the evidence.
FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 7 28 PW4 Constable Mandeep was on duty on PCR van Libra L-27. He deposed that at about 6.45 a.m. on 27/07/2015, a call was received from Libra-I to the effect that a thief had been caught in Karan Vihar Part-IV and they immediately reached there and saw a person surrounded by others. He also deposed that they rescued that person who was otherwise in conscious state. Said person was claiming that he had been beaten-up and he wanted himself to be taken to a hospital. PW4 Ct Mandeep has also deposed that brother of that person was also present at the spot and when they took said injured and his brother to SGM hospital, en route, that person claimed that he had returned from Haridwar and was very ill and he also claimed that he had been beaten-up with dandas. PW4 Ct Mandeep also claimed that the public persons who were present at the spot had also revealed that said injured person was a thief.
29 It will be curious to note that when PW4 Ct Mandeep made statement during the investigation, he never claimed that said thief was conscious and that he conversed with him. Therefore, he was confronted by learned Prosecutor with his such previous statement but he remained adamant and reiterated that said thief was conscious and he had even conversed with him during the transit to the hospital.
30 Let me now switch over to the testimony of father and brother of such victim though admittedly they are not the eye-witnesses and they learnt about the incident from accused only when accused made a call.
31 PW5 Sunil (father of victim) has deposed that his son Rahul used to do little bit of agricultural work and also used to beat drums in marriage processions. He deposed that on the night of 25/07/2015, Rahul had left home claiming that he was going for beating drums but did not return in the night. He deposed that Shiva had received a call and told that a caller had revealed that Rahul had been badly beaten-up and he may be lifted from there. Shiva accordingly reached that place and saw Rahul lying and PCR vehicle was also there. He further deposed that Rahul was shifted to SGM hospital where he was declared brought dead. Importantly, PW5 Sunil had gone to the hospital only and he did not know as to who had beaten-up Rahul. His testimony is primarily based FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 8 upon the inputs which he received from his son Shiva.
32 PW6 Shiva has deposed that on 26/07/2015 at 6.56 a.m., he was going towards his workplace situated in Karampura and when he was near Peera Garhi Chowk, he received a call on his mobile no. 9211148482 and the caller told him to come to Karan Vihar and also divulged that Rahul had been beaten-up very badly. He then reached that place and saw a crowd there. He saw Rahul lying in the street and accused Raj Kumar was also there. Simultaneously, PCR gypsy also reached there. PW6 Shiva also deposed that such Raj Kumar was the one who had called him up and Raj Kumar told him that Rahul had entered their house for theft purpose and, therefore, he had been beaten-up. PW6 Shiva also deposed that when he tried to give water to Rahul, accused did not permit him claiming that he had been beaten-up up just then and, therefore, giving water would not be of any assistance to him. Thereafter, Rahul was taken to hospital where he was declared brought dead. He also told that his brother was not a thief and rather he used to beat drums in marriage and other occasions.
33 Specific Court questions were also put to PW6 Shiva. It was asked from him whether he was able to talk to his brother or not. He, however, deposed that he was not able to talk to his brother and his brother merely indicated for water. In his cross-examination, he also admitted that accused had also accompanied them in PCR van to hospital. He also admitted that he did not know as to who had beaten-up Rahul. However, he volunteered that call had been received from accused and when they were taking Rahul to hospital in PCR van, accused had himself admitted that he had beaten-up Rahul with a rod and bat and accused also told that 3-4 other persons also started beating Rahul and then he (accused Raj Kumar) stopped them and in the process, he (accused) also received injury with a brick. Interestingly, PW6 Shiva also claimed that he revealed all such facts to the police. Fact, however, remains that no such facts are find mentioned in his statement Ex. PW6/DA which he had made before the police.
34 Let me see the testimony of other police officials who remained associated with the investigation. PW3 HC Virender had reached at the spot on FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 9 receipt of DD No. 9B. There he met concerned caller i.e. Raj Kumar (accused herein). He also saw lot of public persons at the spot and Raj Kumar revealed that one thief had entered their house, who started running after committing the theft, and when he (accused Raj Kumar) shouted "chor-chor", such thief was caught by him as well as by public persons while the thief was jumping from the courtyard. PW3 HC Virender also deposed that such thief was beaten-up by the public persons. It will be pertinent to mention that PW3 HC Virender happens to be the investigating officer of case FIR No. 905/15. He also deposed that three mobile phones and cash amount of Rs. 1,500/- were also recovered from the possession of such thief/victim and these were seized by him in his case i.e. case FIR No. 905/15.
35 PW7 SI Harender happens to be the IO of the present case. He has deposed that he reached SGM hospital on receipt of DD No. 12B (Ex. PW7/A) and obtained MLC of Rahul who had been brought there by PCR with alleged history of physical assault and he also revealed that the patient had already been declared brought dead. Since Romi @ Shiva, brother of victim, was also in the hospital, they learnt that the name of the victim was Rahul. PW7 SI Harender then reached at the place of occurrence along with Shiva where they met HC Virender (PW3) as well as accused Raj Kumar. HC Virender told him about the investigation of his case of theft. PW7 SI Harender also made inquiries from accused Raj Kumar regarding the incident who told him that a person had entered their house for committing theft and after committing theft when such thief was fleeing, he was caught and there was a scuffle (hathapai) with such thief. Accused Raj Kumar also told him that public persons also gathered there when alarm was raised by mother and sister of accused and such thief was beaten-up severally by public.
36 PW7 SI Harender also summoned crime team. Crime team report has been proved as Ex. PW7/B. PW11 Constable Vinod Kumar was posted as photographer with such mobile crime team and he had taken photographs of the spot which have been proved as Ex. PW7/C1 to C6.
FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 10 37 PW7 SI Harender prepared rukka and sent the same to PS through Constable Ganesh for registration of FIR. He also seized broken pieces of glass bangles, pieces of stone, brick and one piece of wooden danda from the spot. These were seized by him vide memo Ex. PW3/A. PW7 SI Harender also prepared site plan Ex. PW7/D at the instance of Shiva @ Romi. He made inquiries regarding the incident from the neighbours but none could tell him regarding the manner of the incident. He also deposed that accused Raj Kumar also did not tell him name of any public person involved in beating Rahul, as claimed by the accused.
38 Thereafter, PW7 SI Harender prepared inquest papers and got the postmortem conducted. Postmortem was also got videographed and CD in this regard has been proved as Ex.PW7/F. PW9 Mukesh Kumar had videographed such postmortem and he has also corroborated the version of IO in this regard.
39 I.O. then collected postmortem report and sealed pullanda containing clothes and blood sample of deceased and seized them vide memo Ex. PW7/G. He has also proved the arrest memo and personal search memo of accused. He collected PCR forms and also recorded the statements of concerned witnesses including PCR officials. He also claimed that during investigation, he had also sent request to the concerned service provider to obtain call detail record (CDR) but since the same was not provided to him, he filed the challan without such record.
40 The broken pieces of bangles were also produced in the Court during trial and were identified as Ex. P1 collectively. Broken pieces of stone, broken pieces of brick and one piece of danda were also produced in the Court and were exhibited as Ex. P2 collectively.
41 Let me now assess the testimony of autopsy surgeon.
42 As per PW12 Dr. Varun Garg, on 28/07/2015, he was posted as Senior Resident, Forensic Medicine, SGM Hospital and on that day, he conducted postmortem over the body of Rahul and as per the brief history given by the IO, FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 11 the deceased was physically assaulted on 26/07/2015 between 4.00 a.m. and 6.50 a.m. He further deposed that deceased was found to be having average built and the videography of the autopsy was also conducted. He further deposed that on external examination, he noticed following two injuries.
i) Reddish colour bruise was present on both gluteal region, posterior aspect of right thigh and both posterior aspect of both leg.
ii) Lacerated wound 3 x 1.0 c.m. and 4 x 1 cm skin deep was present on left and right region of face respectively, margins of wounds were reddish abraded.
43 PW12 Dr. Varun Garg further deposed that on internal examination of head, he noticed sub scalp bruising in left temporoparietal region and occipital region and the brain matter was found congested and edematous. He also noticed diffused thin film of sub aranchnoid hemorrhage over frontal and occipital region of cerebral hemisphere. Time since death was noticed approximately 60 hours i.e. at about 6.30 AM. PW12 Dr. Varun Garg further deposed that as per his opinion, the death was due to cerebral damage as a result of blunt object diverted upon head sufficient to cause death in ordinary course of nature and all the injuries were antemortem in nature. His such postmortem report is Ex. PW12/A. 44 In cross-examination, PW12 Dr. Varun Garg also claimed that the injury was possible by blunt weapon. He also claimed that head injury was possible by fall but the other injuries, due to their peculiar pattern, were not possible by fall. He also claimed that the cerebral damage consequent to head injury was not possible if the patient was a drug addict.
45 I have already extracted the above stand taken by the defence. Accused admits that a thief had entered inside his house and when he tried to chase such thief, such thief hurled one brick upon him which hit him on his leg. So far so good. However, thereafter, accused is trying to completely exonerate himself. According to him, he himself had not given any battering to such thief and later such thief was roughed-up by public persons. IO has already deposed that despite his best efforts, accused could not pin-point any such public person.
FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 12 46 I need not remind myself about the provisions contained u/s 106 of Indian Evidence Act. Law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. A fact which is within the special knowledge of accused has to be established by him alone. It will be noteworthy to extract following observations appearing in Trimukh Maroti Kirkan v State of Maharashtra (2006) 10 SCC 681:-
"If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC
271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
47 According to defence, thief had been beaten-up by the public but as noticed above, it is not a case where there were multiple injuries on the person of such thief suggesting his whipping by multiple people. In fact, as per the autopsy FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 13 surgeon also, there were merely two visible injuries and the fatal injury came to fore only when internal examination of head was conducted. It was then learnt that there was sub scalp bruising in left temporoparietal region and occipital region. Such injury was possible as a result of blunt object diverted upon head. Besides such internal injury, there were only two visible external injuries. It is not possible to imagine that when, as alleged by defence, number of public persons had given severe beatings to such thief, he would escape only with two external injuries. If at all he had been thrashed by the public, then there were bound to be many more injuries on his person and thus the medical evidence belies the defence taken by the accused. The hollowness in his defence stands exposed.
48 There is one more aspect of the case which I cannot resist commenting upon. If accused is to be believed, then he heard whisper in his house at 4.00 a.m. and immediately thereafter, thief was apprehended. In such a situation, it was expected that Raj Kumar would have informed the police immediately. Fact, however, remains that he informed the police only at 6.55 a.m. and consequent to such information, DD No. 9B was registered at PS Aman Vihar. Thus, there is a delay of approximately three hours in informing the police. It cannot be digested nonchalantly. He has not bothered to explain as to why he slept over the matter and why he did not inform anyone about such intrusion for around three hours. Such delay is attributable to him and rather goes against him.
49 Undoubtedly, it would have been better if prosecution was able to garner requisite material to show that victim was in fact a drummer. It should have also made effort to reach that person known as Kale. However, omission in this regard cannot be said to be fatal to the case of prosecution. Defence cannot dig out any advantage from the fact that as per Shiva, accused had rather tried to save the victim when victim was being thrashed by the public. Interestingly, such narration is rather based upon the inputs which he had received from none other than accused himself. Nonetheless, it would be certainly kept in mind by the Court while deciding the quantum of sentence as it can be said to be a sort of mitigating circumstance. It, however, is not an exonerating circumstance by any stretch of imagination.
FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 14 50 Thus from the evidence led on record coupled with the fact that the accused has not been able to discharge onus as envisaged u/s 106 Indian Evidence Act, it stands established that it is primarily the accused who is responsible for the injuries received by the victim. He also had a reason to give thrashing to such thief who had also committed theft of three mobile phones besides cash amount of Rs. 1,500/-. Accused has attempted to take shelter behind the fact that various public persons had collected at the spot and they had given such beatings. Such fact does not stand established. Moreover, accused has not been able to give description of any such public person. He had every reason to protect his property but he should not have exceeded the right of private defence to such unjustifiable extent. Moreover, record also reflects that such thief was unarmed and, therefore also, the accused should have displayed restraint and should have simply apprehended such thief instead of giving him beatings. According to accused, he had also received injury when brick was hurled upon him by such thief. However, his MLC does not reveal any injury at all.
51 I have already discussed above the testimony of father and brother of victim. Brother of victim had reached at the spot on receipt of such telephonic information. He has no personal knowledge about the manner in which the incident had taken place. He has also claimed that his brother was not a thief, though at the same time, he has not been able to explain as to how his brother had entered inside someone else's house and was in a possession of stolen articles. Be that as it may, the circumstances placed before the Court clearly go on to indicate that it is accused who is responsible for the injuries in question. He has not bothered to examine other inmates of the house including and such non- examination also goes against him.
FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 15 52 Undoubtedly, accused had no intention to cause death of anyone but he, at least, had knowledge that his act of beating was likely to cause death. I, therefore, hold him guilty u/s 304 (Part-II)/34 IPC.
Announced in the open Court (MANOJ JAIN) On this 2nd day of January, 2016. Addl. Sessions Judge (FTC) North-West District: Rohini: Delhi FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 16 FIR No. 906/2015 PS Aman Vihar State Vs. Raj Kumar Monday, January 04 2016 Present: Sh. Sanjay Jindal, learned Addl. P.P. for State.
Convict in person with counsel Sh. Pawan Sharma.
Father and brother of deceased.
1 Heard arguments on sentence.
2 Sh. Jindal has prayed for maximum sentence. Relatives of victim though want stern action yet they also seek adjournment to consider the quantum of sentence and award of suitable compensation. I, however, do not find any genuine reason to adjourn the hearing any further.
3 Sh. Sharma has contended that convict had no intention or even knowledge to kill anyone. When convict noticed a thief inside his house, he tried to nab him and in the process, such thief had fallen and had received injuries.
4 He has also contended that convict has no previous involvement of any nature whatsoever and his family comprises of his aged parents, marriageable sister and two brothers. He has, therefore, prayed that convict be shown maximum clemency.
5 Undoubtedly, convict had no intention to cause death of such intruder but he had palpably exceeded his right of defence.
6 It has already been held that he had no motive to kill but he, at least, had knowledge that the hammering given by him was likely to cause death. Unquestionably, convict had every reason to have felt fumed and agitated but he should have controlled himself and should not have chosen to take law into his own hands.
7 I cannot be unmindful of the fact that a precious life is lost.
8 Therefore, keeping in mind the overall facts and circumstances and FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 17 taking stock of mitigating and aggravating circumstances, convict Raj Kumar is hereby sentenced to RI for a period of three years and fined Rs. 1 lac. In default of payment of fine, convict would further undergo SI for a period six months.
9 In case such fine of Rs. 1 lac is realized, entire such amount would go to the legal heirs of deceased after the expiry of period of appeal or as per the outcome of such appeal, if any.
10 Needless to say, convict would be entitled to benefit of Section 428 Cr.P.C. He be sent to jail under appropriate warrants.
11 A copy of judgment as well as of order on sentence be given to convict free of cost.
12 File be consigned to Record Room.
Announced in the open Court
on this 4th day of January, 2016 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West Distt: Rohini: Delhi
FIR No 906/2015 PS Aman Vihar (State Vs. Raj Kumar) Page 18