Delhi District Court
State vs . Mithilesh & Ors. on 21 November, 2019
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No....................................... 57841/16
FIR No. 1117/2014
PS Shahbad Dairy
U/s: 304/323/34 IPC
State
Versus
1. Mithilesh
S/o. Roop Chand Ram
R/o. A299, New Block
SB Dairy, Delhi
2. Soniya Devi
W/o. Mithilesh
R/o. A299, New Block
SB Dairy, Delhi
3. Ranjeet
S/o. Mithilesh
R/o. A299, New Block
SB Dairy, Delhi
Date of institution : 07.01.2015
Judgment reserved on: 07.11.2019
Judgment delivered on: 21.11.2019
ORDER/JUDGMENT: All the accused persons are convicted
for the offence(s) u/S 304 Part I/34 &
323/34 IPC.
SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 1 of 35
State Vs. Mithilesh & Ors.
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JUDGMENT
1. Brief facts, as stated in the charge sheet are that on 26.09.2014 on receipt of DD No. 66B, ASI Daya Nand along with Ct. Pradeep reached the spot i.e. A309, New Block, Shahbad Dairy, where it was revealed that the injured in the quarrel had been removed to the hospital by the PCR van. Thereafter, they reached MV Hospital and obtained the MLC of injured(s) Rakesh S/o. Ganga Sahai and Asha Devi, wife of Ganga Sahai. The injured Rakesh was found unfit for statement and another witness Mukesh was also present, who claimed himself to be the eye witness and made the following statement to the ASI Daya Nand :
That he was residing at the address mentioned in the complaint along with his parents and was doing private job. On 26.09.2014 his younger brother Rakesh and one neighbourer boy Akash were playing with each other during the day time. Both of them quarreled with each other while playing. He separated them and thereafter his brother came back to his house and Akash went to his house and he went somewhere.
At about 4:00 pm, his mother Asha Devi and his cousin bhabhi Rita Paswan went for satsang in Shahbad Dairy. At around 6:30 am, he returned back SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 2 of 35 State Vs. Mithilesh & Ors.-3-
to his house. At that time, in the street in front of their house Mithilesh and his two sons Ranjeet, Akash and wife of Mithilesh were present. All of them were armed with dandas. Mithilesh was beating his mother with dandas and while beating her, she pushed her in a nali. When they saw him then Ranjeet and his mother started beating him with dandas. His bhabhi Rita somehow extricated him from their clutches.
Thereafter, Mithilesh assaulted his brother Rakesh with danda blow while using both his hands on his head due to which the danda also broke and he fell down on the ground. Even after that Mithilesh and Akash assaulted his brother Rakesh with bricks. His brother became unconscious, but they still continued beating him. The neighbourers with great difficulty tried to save him. His neighbourer made a call at 100 number. The said Mithilesh, his wife, Ranjeet and Akash had beaten them with dandas.
2. On the said statement, rukka was written by ASI Daya Nand and sent Ct. Pradeep to the PS for the registration of FIR. Consequently, an FIR u/S. 308/323/34 IPC was registered at PS Shahbad Dairy.
SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 3 of 35 State Vs. Mithilesh & Ors.
-4-3. During investigation, statement of Asha Devi was also recorded who corroborated the version of Mukesh. The result on the MLC of Asha Devi was received as simple. She was discharged. Thereafter, he reached the spot and at the instance of Mukesh Kumar prepared the site plan. The accused persons were searched but they absconded.
4. The injured Rakesh in the meanwhile shifted to LNJP Hospital for further treatment.
On 30.09.2014 at the instance of the complainant accused Mithilesh was arrested, who made a disclosure statement and pursuant thereto he got recovered one danda from his house which was seized. During further investigation, Akash S/o. Mithilesh and Ranjeet S/o. Mithilesh were also found, but they were JCL and the information was given to their parents regarding the apprehension of JCL. Their date of birth were obtained from the school and were produced before JJB, where Akash was declared JCL, however, the other accused Ranjeet was found to be major. The last accused Soniya was arrested on 18.10.2014.
5. The accused Ranjeet was also arrested in this case after being declared as not to be juvenile after obtaining the relevant documents from JJB.
SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 4 of 35 State Vs. Mithilesh & Ors.
-5-6. In the meanwhile, the injured Rakesh who was admitted in Neuro ICU of LNJP Hospital was died on 06.11.2014, as per the information received from the said hospital. The said information was recorded in the DD register.
7. Thereafter, the above ASI reached at LNJP hospital on 07.11.2014 and after identification of the dead body, got his post mortem done and the dead body was handed over to the relatives. The relevant samples were seized including the blood sample and blood gauze and Section 304 IPC was added instead of 308 IPC. The opinion on the post mortem report of the deceased was obtained in which it was opined as under :
Cause of death in this case brain damage and septicemia in an operated case of head injury.
8. The subsequent opinion qua the weapon of offence was obtained and it was opined as under :
It is opined that the possibility of injury no. 1 on the body of deceased being caused by weapon examined and any weapon similar to it cannot be rule out.
9. It was also stated that regarding JCL Akash, separate final report would be filed before JJB and the relevant exhibits had been sent to SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 5 of 35 State Vs. Mithilesh & Ors.
-6-FSL, Rohini for forensic analysis. After completion of investigation charge sheet u/S. 304/323/34 IPC was filed in the Court.
10. On committal of the case to the Court of Sessions, vide order dated 12.02.2015, charge(s) u/S 304/323/34 IPC was framed against all the accused persons, to which they pleaded not guilty and claimed trial.
11. Thereafter, prosecution in support of its case has examined 27 witnesses :
a) PW1 is WCt. Krishna, who on 06.11.2014 had recorded the DD No. 34B and proved the copy of the same as Ex. PW1/A.
b) PW2 is Ct. Sandeep, who on 26.09.2014 had recorded DD No. 66B and proved the same as Ex. PW2/A.
c) PW3 is Rita Paswan, an eye witness, who has totally supported the prosecution version regarding the time, place and manner of the incident as also the identity of the accused persons.
d) PW4 is Mukesh, one of the injured and eye witness, and brother of the deceased, who also supported the prosecution version regarding the time, place and manner of the incident as also the identity of the accused persons.
e) PW5 is Ct. Jai Kumar who had joined the investigation on 27.10.2014 and went to JJB Kingsway camp along with IO and collected the relevant document from there and went to Rohini Court SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 6 of 35 State Vs. Mithilesh & Ors.-7-
where the accused Ranjeet had surrendered who was arrested vide arrest memo Ex. PW5/A and personal search memo Ex. PW5/B.
f) PW6 is Ct. Sumit, who had joined the investigation on 07.11.2014 with the IO and accompanied him to the mortuary to MAMC, Delhi where the IO got the post mortem on the body of the deceased Rakesh and after post mortem his dead body was handed over to his father vide memo Ex. PW6/A.
g) PW7 is Dr. Abhishek Kumar, CMO, MV Hospital, who has proved the MLC of injured Mukesh as Ex. PW7/A and the nature of injury opined by him thereon as simple at point B as also that of injured Asha Devi Ex. PW7/B and the nature of injured opined by him thereon as simple at point B.
h) PW8 is Ct. Pardeep, who went to the spot along with the IO on receipt of DD No. 66B on 26.09.2014 and was present with the IO even in the hospital when the IO recorded the statement of injured Mukesh and prepared the rukka and he went to the PS and got the FIR registered and gave the copy back to the IO.
i) PW9 is HC Saroj, who had joined the investigations on 18.10.2014 along with the IO and in whose presence the accused Soniya was arrested vide arrest memo Ex. PW9/A and personal search memo Ex. PW9/B.
j) PW10 is Ct. Praveen, who had joined the investigations on 03.10.2014 with the IO, when the IO arrested the accused Ranjeet at the instance of the complainant, when he was thought to be JCL at SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 7 of 35 State Vs. Mithilesh & Ors.
-8-that time vide apprehension memo Ex. PW10/A and his version was recorded vide Ex. PW10/B.
k) PW11 is SI Puran Chand, Duty Officer, who had recorded the FIR of the present case on the rukka sent by ASI Daya Nand Ex. PW11/A and the endorsement on the same made by him as Ex. PW11/B and certificate u/S. 65B Evidence Act as Ex. PW11/C.
l) PW12 is Ct. Amit, who was posted at LNJP Hospital as duty constable and on 06.11.2014 he informed the officials of PS Shahbad Dairy regarding the death of Rakesh S/o. Ganga Sahai.
m) PW13 is Ct. Ashok Kumar, who was working as typist on computer, who had typed the present FIR No. 1117/14, u/S. 308/323/34 IPC.
n) PW14 is Dr. Saurabh Kumar, specialist surgery, MV Hospital who has deposed on behalf of Dr. Rajeev Ranjan, SR Surgery after seeing the MLC of injured Rakesh no. 5078/14, dated 26.09.2014. He stated that the said patient was examined by Dr. Rajeev Ranjan form portion X to X1 on the MLC Ex. PW14/A.
o) PW15 is Dr. Ashish Bhute, who had conducted the post mortem on the dead body of deceased Rakesh on 07.11.2014 and proved the same as Ex. PW15/A and has opined the cause of death in this case due to brain damage and septicemia in an operated case of head injury.
p) PW16 is Dr. Amit Showkeen, who had also examined the injured Rakesh on 26.09.2014 at MV Hospital, where he was admitted with SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 8 of 35 State Vs. Mithilesh & Ors.
-9-the alleged history of physical assault and prepared his MLC no. 5078/14 Ex. PW14/A.
q) PW17 is Smt. Sushma Yadav, neighbourer, who has supported the prosecution version regarding the presence of the accused persons and the injured persons at the spot as well as their identities and the fact that a quarrel had taken place between them on 26.09.2014.
r) PW17 has been wrongly written again, therefore, the same be read as PW17A is Nanak, who had put his signatures as witness on the dead body identification memo of the deceased by his father.
s) PW18 Inder is the witness of the same fact.
t) PW19 is Asha Devi, one of the injured and eye witness, and mother of the deceased who also supported the prosecution version regarding the time, place and manner of the incident as also the identity of the accused persons.
u) PW20 is Retd. HC Om Prakash, who was posted in PCR on 26.09.2014, who deposed that at about 7:20 pm, he received a message from Libra 1 regarding the quarrel and he reached H. No. A309, Shahbad Dairy. From there, at about 7:25 pm, injured persons Rakesh S/o. Ganga Shah, Asha Devi W/o. Ganga Shah and Mukesh S/o. Ganga Shah were taken to Maharishi Valmiki Hospital, Pooth Khurd and they were admitted there.
v) PW21 is ASI Sat Prakash. He joined the investigation along with SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 9 of 35 State Vs. Mithilesh & Ors.
-10-IO on 30.09.2014 and on the identification of Mukesh, accused Mithilesh was arrested vide arrest memo Ex. PW4/B and personal search memo Ex. PW4/C and he made disclosure statement Ex. PW4/D and pursuant to his disclosure statement, he lead the police party to his house at H. No. A299, New Block, Shahbad Dairy and from there he got recovered weapon of offence i.e. danda about 104 cm in length.
w) PW22 is Inspector Mahesh Kumar, draftsman, Crime Branch, who on 11.12.2014 visited the spot and took measurement and prepared rough notes. He has proved his report Ex. PW22/A.
x) PW23 is W/Ct. Ruby, who was posted as CPCR PHQ at channel no. 107 from 2:00 pm to 8:00 pm. On that day, at about 19:15:49 hours, a call was received from mobile no. 8510095529 and the caller had informed regarding quarrel at A Block, 238, near Nirankari Bhawan, Shahbad Dairy and she fed the said information in PCR form and transmitted the said information to the concerned Outer District Net and proved the PCR form Ex. PW23/A. y) PW24 is Dr. Pankaj Singh Chauhan, who in the month of September 2014 was working as SR Neuro Surgery LNJP Hospital with Dr. P.N. Pandey, HOD and the progress report in respect of the patient Rakesh S/o. Ganga Sahai was prepared by him Ex. PW24/A and as per the progress record, patient was operated with left fronto temporal craniotomy with lax duroplasty and bone replaced in abdomen.
SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 10 of 35 State Vs. Mithilesh & Ors.
-11-He has also proved the death certificate and the death summary of the said deceased as Ex. PW24/B and Ex. PW24/C prepared by Dr. Darwin, as per the death summary and death certificate, the cause of death was acute subdural hematoma with sudden cardio respiratory arrest.
z) PW25 is Inspector Mukesh Kumar, who had taken up the investigation of this case on 09.11.2014. Thereafter, he went to MAMC on 21.11.2014, collected the post mortem report of the deceased and obtained the subsequent opinion qua the weapon of offence and also got prepared the scaled site plan of the spot through draftsman on 11.12.2014 and after completion of investigation, filed the charge sheet.
a1) PW26 is Dr. P.N. Pandey, HOD, Neuro Surgery, LNJP hospital is the witness of same fact, as has been deposed by PW24 Dr. P.S Chauhan, as he is HOD under whose supervision, the said witness was working.
a2) PW27 is SI Daya Nand, the main IO of this case, who had almost conducted the entire investigation of this case and had deposed regarding the investigations, as were carried out by him during the course of the case.
12. Thereafter, separate statement of all the accused persons u/s 313 Cr.P.C. were recorded, in which the entire incriminating evidence appearing against the accused persons was put to them, to which SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 11 of 35 State Vs. Mithilesh & Ors.
-12-their defence was that they were innocent and falsely implicated in this case. They had not caused any injury to any person. The deceased was suffering from schizophrenia and in the fit of schizophrenia, he fell down on the debris lying in front of his house and suffered injuries. Neither they nor their family members ever gave any beatings to the deceased and other persons at any point of time. However, the accused persons chose not to lead any evidence in their defence.
13. I have heard Sh. Kameshwar Mishra, Ld. Counsel for the accused persons, Sh. Harvinder Nar, Ld. Addl. PP for the State along with Sh. A. K. Singh, Ld. Counsel for the complainant also gone through the record.
14. Ld. Defence counsel has argued that PW4 complainant Mukesh has deposed falsely against the accused persons, as he had previous enmity with them, as there was a complaint made by the minor son of accused Mithilesh against him of sodomy, which fact has also been admitted by PW4 in his crossexamination, therefore, there was illwill between both the parties and there were chances of false implication of the accused persons. He has also argued that there are material contradictions in the testimony of PW4 Mukesh and PW19 Asha Devi and the said contradictions / improvements were duly confronted to them as their statements were recore4d SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 12 of 35 State Vs. Mithilesh & Ors.
-13-before the JJB and the said statement Ex. PW4/D1 and Ex. PW2/DA were duly confronted to them, which dilutes the probative force of their testimonial deposition as a whole.
It is further argued that a DD No. 66B Ex. PW2/B also supports the defence version, as the said DD only pertains to call of quarrel between the parties and there is no information that the accused persons were the aggressors.
It is also argued that as per the MLC, on the person of PW19 Asha Devi, she had received simple injury vide MLC Ex. PW7/B. The other injured Rakesh deceased, as per the MLC Ex. PW14/A prepared at MV Hospital had only received abrasions over right foot and right leg and he had later on died due to certain medical complications and the said injuries cannot be imputed to the accused persons, therefore, it is stated that all these facts cumulatively show that the accused persons had only the intention to cause simple injuries on the person of Asha Devi and deceased Rakesh. Therefore, they are liable to be acquitted for the charge(s) u/S. 304 IPC.
15. On the other hand Ld. Addl. PP for the State has strongly rebutted the above contentions of the ld. Defence Counsel and has argued that from the testimonies of PW4 Mukesh, PW19 Asha Devi, which testimonies are cogent and consistent throughout, the prosecution has been able to prove the manner of assault, presence of the SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 13 of 35 State Vs. Mithilesh & Ors.
-14-accused persons at the time of the incident, the role of each of them their identity is not in doubt as both are neighbourers and well known to each other prior to the incident for a long time.
He further contends that their testimonies are supported by independent witnesses PW3 Rita Paswan and PW17 Sushma Yadav and PW20 HC Om Prakash of the PCR also supports the prosecution version that both the injureds i.e. PW4 and PW19 and the deceased were at the spot immediately after the incident and they were removed to the hospital. The injuries caused on the body of PW19 Asha Devi and deceased Rakesh have been proved by the MLC Ex. PW7/B and medical papers of Rakesh prepared at LNJP Hospital, where he was operated upon for head injury and he had died only due to the said injury as per the post mortem report, which has not been assailed.
Therefore, the accused persons can be attributed with the intention to cause such injury as were found on the head of the deceased Rakesh, as accused Mithilesh had given a full blown danda blow by using both his hand on the hand of tender boy Rakesh aged around 15 years and when somebody gives a full blown danda blow on the head of a young boy of tender age of 15 years, then he can be attributed with an intention of causing such injury, as were likely to cause his death and the said Rakesh had died due to the said injury only and all the accused persons had came to the spot duly armed with the dandas and it is not that they had picked the SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 14 of 35 State Vs. Mithilesh & Ors.
-15-dandas at the spot at the spur of the moment, therefore, he submits that the accused persons are liable to be convicted u/S. 304 Part I/323/34 IPC.
16. I have gone through the rival contentions.
17. PW4 Mukesh in his testimonial deposition in the Court in his examination in chief has deposed as under :
On 26.09.2014 a quarrel took place between my younger brother deceased Rakesh and accused Akash (JCL). JCL Akash is the son of my neighbour accused Mithilesh, present in the court today (correctly identified by the witness). The quarrel took place at about 12 noon on that day while they were playing cards. I was present at that time in my house and I came to know about their quarrel and I pacified both of them and thereafter my deceased brother Rakesh returned to the house and JCL Akash went to his house and thereafter I went for roaming. At about 4:00 p.m. my mother Smt. Asha Devi and my Bhabhi in relation namely Smt. Rita Paswan, who is residing in the neighbourhood went to Satsang in Shahbad Dairy. At about 6:30 p.m. I was returning to my house, I saw accused Mithilesh and his two sons i.e. accused Ranjeet and JCL Akash and accused Soniya Devi who is the wife of accused Mithilesh were present in the lane in front of my house. Accused Mithilesh, Soniya Devi and Ranjeet are present in the court today (correctly identified by the witness). All the accused persons carrying lathi and dandas and accused SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 15 of 35 State Vs. Mithilesh & Ors.-16-
Mithilesh was giving beatings to my mother with the danda and by giving beatings to my mother made her fall in the Nali. Accused Ranjeet and Soniya Devi on seeing me started beating me with dandas. I have been saved with great difficulty by my bhabhi Rita Paswan, but in the meantime, accused Mithilesh had given a forceful danda blow with both his hands on the head of my younger brother Rakesh as a result of which the said danda was broken (fat gaya). My brother Rakesh fallen down on the ground. Mithilesh and JCL Akash and Ranjeet had given beatings to Rakesh with brick. All the three accused persons i.e. Mithilesh, Soniya Devi and Ranjeet continued giving danda blows on my brother Rakesh inspite of his falling down on the ground and continued beating him. Public persons gathered there and saved us. Someone from the neighbourhood called the police on 100 number. The police had shifted my brother and me alongwith my mother to M.V. Hospital. Police met me in the hospital and recorded my statement same is Ex.PW4/A, which bears my signature at point A. During treatment my brother Rakesh was shifted to LNJP Hospital.
On 30.09.2014 I again joined the investigation in this case and accused Mithilesh present in the court today was apprehended at Nukkad while coming from the side of Murga Market. Accused Mithilesh was arrested vide arrest memo Ex.PW4/B, which bears my signature at point at point A, whose personal search was carried out vide memo Ex.PW4/C, which bears my signature at point A, who made the disclosure statement Ex.PW4/D. Accused Mithilesh thereafter got recovered one bamboo danda from the room of his house i.e. H.No.A299, Shahbad Dairy, Delhi, from SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 16 of 35 State Vs. Mithilesh & Ors.-17-
behind the door and I identified the said danda being used by accused Mithilesh for giving forceful blow on the head of my deceased brother Rakesh. The said danda was measured and was taken into possession after turning the same into pullanda and was sealed and taken into possession vide seizure memo Ex.PW4/E, which bears my signature at point A. On 26.09.2014 IO prepared the site plan at my instance of the place of the incident and the same is Ex. PW4/F which bears my signatures at point A. I had also disclosed the name of accused Sonia Devi whose role also I had mentioned in the incident by mentioning as wife of accused Mithilesh to the police during investigation and the brick which was used in the assault hitted on the my brother at temporal region near ear. On 07.11.2014 I identified the dead body of my brother Rakesh vide identification memo Ex. PW4/G bearing my signature at point A. After the postmortem examination of the dead body of my brother Rakesh, the dead body was handed over to my father Ganga Saha vide receipt already Ex.PW6/A which bears my signatures at point B. On 18.10.2014 accused Sonia Devi present in the court today (correctly identified) was apprehended at my instance from outside her house vide arrest memo already Ex. PW9/A which bears my signature at point B. I can identify the case property, if shown to me. I can identify the case property, if shown to me. At this stage, MHC(M) has produced one sealed pullanda sealed with JJB. Same is opened and found containing one bamboo and same is shown to the witness who correctly identified the same, which was SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 17 of 35 State Vs. Mithilesh & Ors.-18-
hit on the head of deceased Rakesh by accused Mithilesh and also got recovered by accused Mithilesh. The said bamboo is Ex.P1.
18. PW4 in his examinationinchief supports the prosecution version regarding the manner of assault, the previous quarrel between the deceased Rakesh and JCL Akash prior to the incident, the presence of all the accused persons at the spot at the time of the incident, carrying dandas and lathies, the role of each of the accused persons and the fact that accused Mithilesh had given a forceful danda blow on the head of his younger brother Rakesh as a result of which, the said danda was broken and he fell on the ground.
He has also deposed regarding the arrest of the main accused Mithilesh and the making of disclosure statement by him and the recovery of danda at his instance from the room of his house on 30.09.2014, which was used in assaulting the deceased Rakesh. In the relevant crossexamination of this witness, he has deposed as under :
I know all the accused persons for ten years and admitted 1.5 years prior to incident there was complaint of sodomy by Vikas, son of Mithilesh against him and he stated that the matter was compromised. It is correct that at the time of incident 10/12 people of locality gathered there, but SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 18 of 35 State Vs. Mithilesh & Ors.-19-
when they tried to rescue the accused persons warned them of severe consequences.
19. Taking the testimony of PW4 as a whole, it shows that there was an enmity between the parties due to the complaint to sodomy against PW4 made by the son of main accused Mithilesh which matter was stated to be compromised. However, there appears to be contradictions with regard to the recovery of danda at the instance of accused Mithilesh vizaviz this witness as his testimony was also recorded on 14.08.2015 during the inquiry proceedings of JCL Akash at JJB, where he was examined as PW1 which statement was confronted as Ex. PW4/D1, in which he stated that the offending danda was not shown to me by the police, however, I had signed over the seizure memo of the same at point A which is Ex. PW1/G. Therefore, his testimony qua recovery of danda at the instance of accused Mithilesh has become somewhat doubtful.
20. PW19 is Smt. Asha Devi, the mother of the deceased and that of PW4, she in her testimonial deposition has supported the prosecution version in toto, though in a slightly different way. In any case parrot like repetition cannot be expected from all the witnesses, if it is so then there are chances of confederacy between the witnesses, as the human memory is not replicative, but it is constructive in nature and SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 19 of 35 State Vs. Mithilesh & Ors.-20-
two persons who have witnessed the incident or experience the same cannot have the same reconstructive memory due to the lapse of memory, time etc. But in substance, the testimony of PW19 Asha Devi duly support the prosecution version regarding the manner of assault, the presence of all the accused persons at the time of the incident, the role of each of them, their identities is not in dispute, as accused party and complainant party were the neighbourers and were well known to each other for a long time.
21. PW19 was crossexamined at length in which she admitted that with the intervention of her son Mukesh i.e. PW4 the quarrel between deceased Rakesh and JCL Akash was pacified. She also admitted that she knew accused persons as well as PW3 Rita Paswan for almost 10 years, which is not surprising as the accused party and the complainant party as well as PW3 were neighbourers. Overall, the testimony of PW19 remains in the realm of being trustworthy.
22. The testimonial deposition of PW4 Mukesh and PW19 Asha Devi is duly corroborated by the testimony of independent neighbourer eye witness Rita Paswan who had totally supported the prosecution version regarding the time, place, the manner of assault, role of each of the accused person and the identities of every accused, as well as their presence at the time of the incident. Her objectivity, observational sensitivity, veracity, reliability has not been dented after SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 20 of 35 State Vs. Mithilesh & Ors.
-21-her crossexamination, as it has not been shown that she was having any enmity with the accused persons or any special close relationship with the complainant party. Nothing has come out in her crossexamination which could dilute her objectivity or could show that she was biased towards one party.
23. In her crossexamination, she had stated that she knows the family of the deceased from 10 years when her plot was alloted to her and her relations with them were of neighbourers only. The said neighborly relations does not show that she was anyway biased towards the accused persons in favour of the injured party.
24. The testimony of PW4, PW 19 and PW3 is further corroborated by another independent witness of the locality i.e. PW17 Sushma Yadav, who has deposed as under :
On 26.09.2014, I was present at my house, at about 6:30 pm, I heard the noise of quarrel in the lane and I came outside of my house. I saw accused Mithilesh alongwith his wife accused Sonia Devi both present in the court today (correctly identified by the witness) alongwith their two sons namely Ranjeet and Akash, accused Ranjeet present in the court today (correctly identified by the witness), (accused SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 21 of 35 State Vs. Mithilesh & Ors.-22-
Akash is JCL) were quarreling with Asha W/o Ganga Shah and her two sons namely Mukesh and Rakesh outside the house of Ganga Shah. I called the police at 100 number. My statement was recorded by the police.
25. Nothing has come out in her crossexamination to show that she did not make a call at 100 number. Though, she has not supported the prosecution version regarding the exact role of the accused persons in the incident, but she has supported the prosecution version regarding the presence of all the accused persons as well as injured persons at the spot at the time of incident, thereby making the probative force of the testimonial depositions of PW3, PW4 and PW19 much stronger.
26. Further testimonies of above witnesses is corroborated by the testimony of PW20 HC Om Prakash of the PCR, who went to the spot immediately after the incident. He has deposed as under :
On 26.09.2014, I was posted at PCR, Outer Zone. On that day, I was on duty from 8:00 am to 8:00 pm on Libra 45 as incharge. At about 7:20 pm, I received a message from Libra1 regarding the quarrel and I reached H. No. A309, Shahbad SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 22 of 35 State Vs. Mithilesh & Ors.-23-
Dairy. From there, at about 7:25 pm, injured persons Rakesh S/o Ganga Shah, Asha Devi W/o Ganga Shah and Mukesh S/o Ganga Shah were taken to Maharishi Valmiki Hospital, Pooth Khurd and they were admitted there. Later on 30.11.2014, IO recorded my statement in this regard.
27. The testimony of said PCR official, who went to the spot immediately after the receipt of the call regarding the quarrel on 26.09.2014 also corroborates the prosecution story and shows the presence of all the injured persons at the spot, as also the deceased and the complainant, therefore, the argument of the defence that PW4 was not present at the spot at the time of the incident, that is how he had not suffered any injury and he was not medically examined is without any substance, as if that was so that the defence should have denuded the credibility of the said witness by cross examining him, which has not been done.
28. The medical evidence in this case also supports the testimonial version of the prosecution witnesses discussed above, as in the MLC of PW19 Asha Devi Ex. PW7/B, there was an abrasion on the right wrist 2 cm x 1 cm i.e. on the right wrist, however, no fracture was found and the said injury was opined as simple and with regard to the SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 23 of 35 State Vs. Mithilesh & Ors.
-24-MLC of Rakesh (deceased) Ex. PW14/A at the time of examination at MV Hospital, it was found that he was suffering from abrasions over right leg and right foot as mentioned in MLC Ex. PW14/A, however, it has been written throughout in his MLC at endorsement made at various points that he was unfit for statement and he was examined by SR Surgery and at that time he was unconscious, both pupils were dilated and were non reacting to the light.
29. Glasgow coma scale is the most common scoring system used to describe the level of a consciousness in a person following a traumatic brain injury. Basically it is used to help gaze the severity of an acute brain injury.
His GCS score was only 5 i.e. glasgow, coma scale which is the medical scale to find out the consciousness of any trauma patient, which is based upon eye movements, verbal commands and motor movements i.e. hand or leg movements, which is generally 15 for a normal person i.e. for each aspect i.e. EVM there is a grading of 5 points each in a normal patient, whereas the total GCS score of this injured Rakesh was only 5, which was very poor, shows that he was almost in coma, though, the MLC in question does not record the head injury, but it shows the poor condition of the said patient at MV Hospital that is why he was referred for further management to LNJP Hospital.
SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 24 of 35 State Vs. Mithilesh & Ors.
-25-30. There the case was seen by SR Neuro Surgery by Dr. P.N. Pandey at 4:15 pm, at that time also his GCS score was 5 i.e. E1 V1 M3 and his cat scan revealed acute SDH left i.e. subdural hematoma on 27.09.2014, operation was operated with left fronto temporal craniotomy and with duroplasty & bone replaced in abdomen. This medical procedure shows that he had suffered severe brain injury for which he was operated by doing elaborate brain surgery which condition was life threatening.
The said brain injury could not have been invented by the doctors of LNJP Hospital where the injured was shifted on 28.09.2014 after initial treatment at MV Hospital on 26.09.2014. The same was in continuation of treatment imparted to him in MLC Ex. PW14/A, as is proved by the medical documents Ex. PW24/A. Not only the SR, who conducted the surgery i.e. PW24 Dr. Pankaj Singh Chauhan was examined, but the HOD Dr. P.N. Pandey, in whose supervision the procedure was done was also examined as PW26. He also deposed that as per the death summary, PW24/C, the cause of death of deceased Rakesh was acute subdural heamatoma with sudden cardio respiratory arrest. Neither of these expert witnesses were crossexamined on any point, therefore, their testimonies remained unassailed.
31. Further, the post mortem report Ex. PW15/A also corroborates and supports the prosecution version, as in the post mortem report SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 25 of 35 State Vs. Mithilesh & Ors.
-26-the following external injuries were found :
1. Scar mark 3 cm x 1 cm, hypopigmented, with unhealthy and unhealed injury margins at its upper end of about 1 cm in length, was present on left side of head 5 cm about the left eyebrow and 7 cm to the left form midline.
2. Scar mark of surgical incision for craniotomy, was present on head on left side, 20 cm x 1 cm, hypopigmented, extending from a point just to the left of midline and 6 cm above eyebrow, following a 'C"
shaped course over frontal, parietal and temporal bones, terminating just behind the left ear.
3. Surgical incised wound for implantation of craniotomy bone piece was present on abdomen just to the right of umbilicus.
The cause of death has been opined as follows : Cause of death is brain damage and septicemia in an operated case of head injury.
32. Therefore, the death of the deceased Rakesh has been directly caused by the brain damage due to the receipt of the brain injury caused by the full blown danda blow given by the accused Mithilesh by using both his hands. Therefore, the acts or series of acts SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 26 of 35 State Vs. Mithilesh & Ors.
-27-conducted by the accused are directly attributable or responsible for the injuries on the head of the deceased, which ultimately caused his death. Therefore, the acts or series of acts of the accused persons has direct nexus with the head injury suffered by injured Rakesh, which culminated into his death. Therefore, the medical evidence strongly supports the testimonial depositions of the prosecution witnesses discussed above.
33. Regarding the recovery of danda i.e. the weapon of offence pursuant to the disclosure statement of the accused after his arrest the following testimonial deposition of the IO SI Daya Nana PW27 is relevant :
On the identification of Mukesh, accused Mithilesh, who is present in the court today (correctly identified by the witness) was apprehended and arrested vide arrest memo already Ex. PW4/B bears my signatures at point X and his personal search was conducted vide memo already Ex. PW4/C which also bears my signatures at point X. Accused Mithilesh was interrogated and his disclosure statement was recorded which is already Ex. PW4/D which also bears my signatures at point X. SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 27 of 35 State Vs. Mithilesh & Ors.-28-
Thereafter, as per the disclosure of the accused Mithilesh, he led us to his house at H. No. A299, New Block, Shahbad Dairy and from there he got recovered weapon of offence i.e. danda about 104 cm in length. The said danda was converted into a pulanda and sealed with the seal of DN and taken into possession vide seizure memo already Ex. PW4/E which also bears my signatures at point X.
34. The testimony of IO on the recovery aspect is supported by the testimony of PW21 ASI Sat Prakash, (who was constable at the relevant time), who accompanied the IO to the spot on receipt of DD No. 66B. Their testimonies converge with each other on the point of recovery.
The testimony of PW4 Mukesh regarding the recovery of danda is found to be somewhat doubtful as discussed above, during the analysis of his testimonial deposition due to the contradiction in his testimony recorded before JJB during the inquiry of JCL Akash on 14.08.2015, which is Ex. PW4/D1, however, even if the said testimony of PW4 is shaky on this aspect, however, there is no reason to doubt the testimonial deposition of IO PW27 and PW21 ASI Sat Prakash, as they had no reason to falsely depose against the accused. In any case nothing has come out in their cross SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 28 of 35 State Vs. Mithilesh & Ors.
-29-examination, which could show that they were not reliable witnesses or they had reason to falsely implicate the accused Mithilesh in this case.
Therefore, the recovery of the danda at the instance of accused Mithilesh pursuant to his disclosure statement makes the prosecution case still more potent, thereby lending more strength to the case of the prosecution as a whole.
35. The law regarding the common intention has been laid down in the judgment titled as Girija Shankar Vs. State of U.P., Appeal (crl.) 1034 of 1997 on 04.02.2004 of Hon'ble Supreme Court of India as under:
"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 29 of 35 State Vs. Mithilesh & Ors.-30-
direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intention of all", nor does it say" and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 30 of 35 State Vs. Mithilesh & Ors.-31-
act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused."
36. In the present case, the common intention of all the accused persons is evident from the fact that all the accused persons were armed with dandas and lathies at the time of assaulting PW19 Asha Devi, it is not that they had picked up the lathies / dandas from the street, but were already armed therewith and when they saw PW4 Mukesh, who tried to intervene he was also beaten up, who was somehow saved by PW3 Rita Paswan, but in the furtherance of their common intention, the accused Mithilesh had given a forceful danda blow on the head of Rakesh (deceased), the danda blow was such that it was given with both hands by accused Mithilesh on a tender head of a young teenager of 15 years of age, but the accused persons did not stop there.
37. Even when Rakesh had fallen on the ground, the accused Mithilesh, JCL Akash and Ranjeet gave beatings to Rakesh with bricks, further all the accused persons Mithelsh, Soniya and Ranjeet continued giving danda blows to Rakesh inspite of him fallling down SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 31 of 35 State Vs. Mithilesh & Ors.
-32-and before that the accused Ranjeet and Soniya Devi had started beating up PW4 Mukesh with danda but he was saved by neighbourer Rita Paswan. Therefore, all the accused persons actually participated in the assault one way or another and shared the common intention, therefore, all of them are vicariously liable as principal and agents for the acts of each other.
38. Regarding the argument of the Ld. Defence Counsel that at the most an offence u/S. 304 Part II IPC is made out against the accused persons, as maximum they can be attributed with the knowledge that by giving danda blow on the head of deceased Rakesh, his death could be caused. Even otherwise, it was a single danda blow and number of blows were not given on the head and further he had died after remaining in the hospital for almost more than one month due to septicemia due to brain damage.
The said argument is without any substance, as the act as per Section 33 of the IPC denotes series of acts, as a single act. In the present case all the accused persons were already present at the spot armed with dandas, it was not that the said dandas were picked up by them at the spur of the moment from the spot. They were also having prior enmity with the complainant due to the allegations of sodomy against the complainant prior to the incident and even on the date of the incident, there was quarrel between JCL Akash and deceased Rakesh prior to the incident.
SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 32 of 35 State Vs. Mithilesh & Ors.
-33-All of the accused persons thereafter assaulted the injured Asha Devi, Mukesh and the accused Mithilesh gave a forceful danda blow with both his hands on the head of young boy Rakesh, aged 15 years at the time of the incident, as a result of which he was operated upon for subdural SDH and ultimately died due to the same injury, as per the said death certificate Ex. PW24/B and post mortem Ex. PW15/A. Thereafter, the death of the deceased could be directly attributable to the series of the acts of the accused persons. It is not that after receiving the danda blow, the said injured Rakesh had fallen on the ground but still accused Mithilesh and JCL Akash and Ranjeet kept on giving brick blows and danda blows even after his fall. Therefore, the entire series of acts culminated into the death of the deceased.
39. Further the subsequent opinion qua the weapon of offence was obtained vide Ex. PW27/E and it was opined as under :
It is opined that the possibility of injury no. 1 on the body of deceased being caused by weapon examined and any weapon similar to it cannot be rule out. Therefore, the same also supports the prosecution version that the injuries were directly caused by the said danda which was got recovered by the accused Mithilesh pursuant to his disclosure statement.
SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 33 of 35 State Vs. Mithilesh & Ors.-34-
40. In view of the aforesaid discussion from entire series of act done by the accused persons culminating into the death of the deceased have to be taken into account for ascertaining the intention as well as knowledge of the accused persons. When you assault someone specially a boy of tender age of 15 years with full blown danda blow with both of your hands, as a result of which even the danda breaks down, even then you do not relent and keep on pounding him with bricks and lathies on his head, which is most vital and delicate piece of human body, then your intention is to cause such injuries as were likely to kill him and nothing else.
It was not that the accused Mithilesh in furtherance of the common intention of all the accused persons along with the other accused persons had aimed danda at different parts of the body and had accidentally hit the same on his head. Therefore, he and all the accused persons can be attributed by causing such injuries, as were found on the body of the deceased that they had the intention of causing such bodily injuries which were actually found on the body of the Rakesh, as were likely to cause death of Rakesh which ultimately was the direct and proximate cause of his death.
41. To sum up :
From the aforesaid analysis of evidence, the probative force of the prosecution evidence, as a whole is touching the point of certainty SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 34 of 35 State Vs. Mithilesh & Ors.-35-
on the scales, where probability of happening of any event is assessed or measured, whereas the defence version is having very low probative force, which is almost touching the point of disbelief. As a consequence, all the accused persons are liable to be convicted u/S. 304 Part I/34 IPC. The accused persons are further liable to be convicted u/S. 323/34 IPC for causing simple injuries on the body of Asha Devi and Mukesh.Digitally signed by SANJEEV
SANJEEV AGGARWAL
AGGARWAL Date: 2019.11.22
13:35:15 +0530
Announced in the open Court (Sanjeev Aggarwal)
on this 21st day of Nov., 2019. Addl. Sessions Judge02,North Rohini Courts, Delhi/21.11.2019 SC No. 57841/16 , FIR No. 1117/14, PS Shahbad Dairy Page No. 35 of 35 State Vs. Mithilesh & Ors.