Delhi District Court
State vs Parmod Kumar on 13 May, 2024
IN THE COURT OF Ms. VANDANA JAIN
ADDITIONAL SESSIONS JUDGE-03 & SPECIAL JUDGE
(COMPANIES ACT) SOUTH WEST: DWARKA COURTS:
NEW DELHI
(MORE THAN 5 YEARS OLD)
CNR No. DLSW01-019820-2018
SC No. : 1044/2018
State Vs. : Parmod Kumar & Ors.
FIR No. : 442/2018
U/s. : 304/323/34 IPC
P.S. : Dabri
1. Date of commission of offence : 15.08.2018
2. Date of institution of the case : 10.11.2018
3. Date of committal to Sessions Court : 30.11.2018
4. Name of the complainant : Radhika
5. Name of accused, parentage &
address : (1) Parmod Kumar
S/o Sh. Prem Chand
R/o H. No.22, Harijan Basti,
Dabri More, New Delhi.
(2) Arvind Kumar
S/o Sh. Sardar Singh
R/o H. No. 22, Harijan Basti,
Dabri More, New Delhi.
(3) Pankaj Kumar
S/o Sh. Prem Chand
R/o H. No. 22, Harijan Basti,
Dabri More, New Delhi.
8. Plea of the accused : Pleaded not guilty
9. Date on which order was reserved : 07.05.2024
SC no. 1044/2018
State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 1 of 52
10. Final order : (a) Accused Parmod is
convicted for offence u/s 304
Pt. 2 IPC; (b) Accused Arvind
is convicted for offence u/s 323
IPC and (c) Accused Pankaj is
acquitted for offence u/s
304/323/34 IPC
11. Date of final order : 13.05.2024
JUDGMENT
1. The investigation was set into motion on receipt of DD no.27A dated 15.08.2018 PS Dabri regarding a quarrel at C-21 near Mother Dairy, Dabri which was assigned to ASI Joginder. ASI Joginder alongwith Ct. Ajay Kumar went to spot i.e. H.No.22, Harijan Basti. Dabri. FIR under Section 308/323/34 IPC was registered on the basis of complaint made by Ms. Radhika, who stated that on 15.08.2018 at around 11:30 am when she along with her father Rakesh and brother Rahul were returning from Valmiki Mandir after attending the meeting and reached near H.No.22, Harijan Basti, Dabri, New Delhi, accused Parmod @ Raanu and Arvind @ Lala started abusing her father Rakesh and accused Arvind threw stone on her father on which a quarrel took place between her father and both the accused persons. When Sonu (since deceased) tried to intervene in order to pacify them, both the accused persons brought sticks from their houses and started hitting Sonu (since deceased) with the sticks on his head.
2. Injured Sonu was admitted in the hospital and he eventually expired on 19.08.2018 and the investigation was carried out for the offence under Section 304/323/34 IPC.
SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 2 of 523. Statements of Rahul S/o Rakesh, Rahul S/o Ram Sukhit Mehto and Sameer @ Lala were also recorded wherein they stated that accused Pankaj was also present and he was holding Sonu (since deceased) and was beating him with fists and leg blows. Charge-sheet was filed and after compliance of Section 207/208 Cr.PC, the file was committed to Sessions Courts. Charge for the offence under Section 304/323/34 IPC was framed against all three accused persons namely Parmod, Pankaj and Arvind on 31.01.2019 to which accused persons pleaded not guilty and claimed trial.
4. Matter was listed for prosecution evidence. The prosecution cited 19 witnesses out of which 13 witnesses have been examined.
5. Statement of accused persons under Section 294 Cr.PC was also recorded on 12.07.2023 wherein they admitted the genuineness of documents i.e. PMR No. 1466/2018 dated 20.08.2018, MLC of injured Rakesh, MLC of accused Arvind and MLC of accused Parmod Kumar as Ex.PX1 to Ex.PX4.
6. PE was thereafter closed vide order dated 08.01.2024. Statement of the accused persons were recorded under Section 313 Cr.PC wherein all incriminating evidence against them was put to them but accused persons denied all the allegations levelled against them and also submitted that they have been falsely implicated in the present case. Only accused Parmod opted for DE and examined one witness in his defence. Thereafter matter was listed for final arguments.
SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 3 of 527. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The testimonies of the prosecution witnesses are detailed as under:-
8. PW-1 Sh. Surender Prasad : He has deposed that on 15.08.2018, he was present at his house. His elder son Sonu (since deceased) was also present at home on that day. At about 10:00 am, his son Sonu (since deceased) told him that he was going to fly kite and he went for the same to the house of Sh. Rakesh, who is father of Rahul i.e. friend of Sonu. After about 1-2 hours, three persons brought his son Sonu (since deceased) in a E-rickshaw in unconscious state. There was an injury above his right eyebrow and there was injury mark on his head which was also swollen. His son Sonu (since deceased) was beaten with dandas. There were injury marks on his lower part of leg. He further deposed that he immediately took him to DDU hospital alongwith his wife. Before taking Sonu (since deceased) to the hospital, he had asked the above three persons as to what had happened to his son Sonu (since deceased), they told him that a quarrel had taken place between Rakesh and Prem. The said three persons further told him that on seeing quarrel between Rakesh and Prem, his son Sonu (since deceased), Rahul and daughter of Rakesh went to the place where the quarrel was going. The said persons further told him that the two sons namely Pramod and Pankaj of Rakesh and one son of Sardar Singh were also present there and Pramod, Pankaj and son of Sardar Singh started beating his son with a wooden danda of about 3 feet which was broad at the end. When SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 4 of 52Rakesh went to save Sonu (since deceased), he was also assaulted with a big stone on his forehead above his right eyebrow. The said three persons further told him that when the daughter of Sh. Rakesh went to save his son Sonu (since deceased), the above three persons (accused persons) pushed her also. He further deposed that he was further told by said three persons that after beatings given to his son by accused Pankaj, Parmod and son of Sardar Singh i.e. Arvind, his son Sonu (since deceased) became unconscious and fell down and while he was lying in the street, the said three persons had brought his son in a E-rickshaw to his house. He then shifted his son to DDU hospital in the emergency. He was revived there but eventually, he expired on 19.08.2018. On 20.08.2018, in the mortuary of DDU hospital, he identified his dead body vide identification memo Ex.PW1/1 and also proved handing over memo Ex.PW1/2. He was duly cross examined by ld. Counsel for accused wherein he admitted that he had not himself seen the incident.
9. PW-2 Sh. Rakesh Kumar : He has deposed that on 15.08.2018, he was present in meeting of Valmiki Samaj at Valmiki mandir at Dabri Sitapuri Road, Dabri. The said meeting was organized by Sh. Rajbir Pradhan. Some other persons were also present in said meeting. They all were discussing the matter of construction of temple. He also deposed that during the said discussion, Prem who is son of his Chacha Sh. Balbir Singh, told him saying that "tu kyu pradhan ban raha hai, teri maa toh hamare ghar roti khane aati hai". On this he told him "tu to apne baap ko roti khila le." Thereafter, some verbal altercation took place and Prem sent back his father to home. He further deposed that when he reached in front of H. No.22, Chhotu SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 5 of 52@ Pankaj and Pramod started abusing him. In the meanwhile, the 3 rd associate of Chhotu @ Pankaj and Pramod namely Arvind also joined hands with them. His son Rahul, his daughter Radhika, and friend of Rahul namely Sonu (since deceased) also reached at the spot to intervene and save him. All accused persons starting beating Sonu (since deceased) with danda. Accused Arvind hit with a stone on his head (PW-2) as a result of which he started bleeding. His daughter Radhika tried to intervene, however, she was also beaten by accused persons with danda. He and his daughter Radhika tried to save Sonu (since deceased), before he was hit with a stone on his head by accused Arvind. Later Sonu (since deceased) was taken to hospital by his family members. Later Sonu died in the hospital during treatment for the injuries suffered by him in the incident. All the three accused persons were correctly identified by the witness. He was duly cross examined by ld. Counsel for accused persons.
10. PW-3 Smt. Radhika : She has deposed that on 15.08.2018, a verbal altercation took place between her father Sh. Rakesh and his uncle (chacha) Sh. Balbir at Valmiki Man, number of people had gathered there. When her father was coming and reached near nala, altercation (gali-galoch) between accused persons Pramod Kumar, Arvind and Pankaj and his father took place. Her mother received a call regarding the altercation. Then she alongwith her mother went there. Accused persons brought dandas to beat her father. Her father was behind her. Accused Arvind hit her father with stone and blood started oozing out from the injury. When Sonu (since deceased) intervened, he was hit by danda repeatedly by accused Parmod. Accused Pankaj @ Chhotu had given beatings to Sonu (since SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 6 of 52deceased) with fist and leg blows. On seeing the blood oozing out of injury of her father, she rushed to him. When she came back to Sonu (since deceased), he had already been taken from the spot to his father by some persons. Then they took their father to home and came to know that Sonu (since deceased) had suffered serious injuries. Then she alongwith her family members went to hospital. She also deposed that they went to PS where their statement was recorded. But the official who recorded her statement did not record all the facts according to her dictation. She was duly cross examined by ld. Counsel for accused Parmod and Arvind but cross examination was not done on behalf of accused Pankaj.
11. PW-4 Sh. Rahul Machal : He has deposed that on 15.08.2018, he was sleeping at his house and at about 11:00-11:30 am, his mother woke him up and told that an altercation had happened between his father Rakesh (PW-2) and his Tau's (Prem Singh) family at Valmiki Mandir. He further deposed that he reached there and the altercation was settled and then he alongwith his friend Sonu (since deceased) and his father came back from said mandir. When they were coming back from there and reached near nala, his Tau's sons Parmod, Chhotu and Arvind came there. He further deposed that accused Parmod and accused Chhotu started beating Sonu (since deceased) with dandas and accused Arvind also threw brick on his father which landed on his head. He further deposed that Rahul (another Rahul) who was present there, took aside Sonu (since deceased) while he was busy in attending his father. He also deposed that he took his father to his home and gave him first aid. Sonu's father also called him up and told him that he had taken his son Sonu (since deceased) to DDU SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 7 of 52hospital and then he also went to DDU hospital. He was duly cross examined by ld. Counsel for all accused persons.
12. PW-5 Sh. Sameer @ Lala : He has deposed that on 15.08.2018, at about 11:00-11:30 pm, he was sitting in front of his house and saw number of persons over there and there was commotion between them. He deposed that he ran towards them and upon reaching there, he found one person namely Sonu (since deceased) was being beaten by two persons namely Ranu and Satru with dandas. He further deposed that he could not see anything else as number of persons were gathered there. He identified accused Parmod Kumar as Ranu and accused Arvind Kumar as Satru. He further deposed that he alongwith his friend Rahul took Sonu (since deceased) to nearby gali and from there in E-rickshaw and then they took him to his residence and handed over Sonu (since deceased) to his father. He also deposed that the relative of Sonu (since deceased) took him to hospital and later on he came to know that he had died in the hospital.
13. Since PW-5 Sh. Sameer @ Lala did not disclose the facts truly, he was cross examined by learned Addl. PP for the State. During his cross examination by learned Addl. PP for the State, he has denied the suggestion that he had seen Radhika present amongst those persons on that day. He denied the suggestion that accused Pankaj @ Chhotu was also there who had already caught victim Sonu over there. He denied the suggestion that Radhika was also trying to protect victim Sonu from them. He denied the suggestion that he was deliberately not identifying the accused Pankaj @ Chhotu as he was under any threat, SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 8 of 52coercion, duress imparted upon him by the accused. He denied rest all the suggestions given to him. He was duly cross examined by ld. Counsel for accused.
14. PW-6 Sh. Rahul Kumar : He has deposed that on 15.08.2018 at about 12.00 noon, he was present at the roof of the house of Rakesh Uncle and was flying kite at that time. He heard some noise and when he looked at the gali near Nala, he saw fighting between persons going on. He came down from Rakesh's roof and saw the accused persons beating one Sonu (since deceased) with sticks on head. He correctly identified accused persons in the Court. He further deposed that because of assault, Sonu (since deceased) fell down and he took injured Sonu to nearby gali from where he arranged an E-rickshaw and took Sonu (since deceased) to his home and later on he came to know Sonu had expired. He was duly cross examined by ld. Counsel for accused persons.
15. PW-7 SI Satish Kumar : He is the duty officer. He has deposed that on 15.08.2018, his duty timings were from 04:00 PM to 12:00 Midnight and at about 06:00 PM, IO/ASI Jogender produced one Tehrir and on the basis of which, he got FIR No. 442/2018 registered. He further deposed that he had also made his endorsement to this effect vide DD No.68-A and after registration of the FIR, he had handed over the copy of FIR and Tehrir to IO/ASI Jogender. He proved FIR as Ex.PW7/A, his endorsement on Tehrir as Ex.PW7/B and his certificate u/s 65-B of Indian Evidence Act as Ex.PW7/C.
16. PW-8 HC Ajay : He has deposed that on 15.08.2018, he was SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 9 of 52on emergency duty from 08:00 AM to 08:00 PM. He further deposed that on receiving DD No.27A, he along with ASI Joginder Singh reached at spot i.e. H. No. 22, Harijan Basti, Village Dabri, New Delhi and came to know that the injured was already taken to DDU hospital. He further deposed that he along with IO reached at DDU Hospital, where injured Sonu Kumar was found admitted vide MLC No.7870/18. IO moved an application to concerned doctor for recording of his statement but he was declared unfit for statement by doctor. He further deposed that one Ms.Radhika and her father Sh. Rakesh met them in PS and made statements to IO and informed that he was hit with a stone by one of the assailant. He further deposed that he got him medically examined at DDU Hospital and handed over the medical document to IO. He further deposed that accused Parmod and Arvind were arrested vide arrest memos Ex.PW8/A and Ex.PW8/B. Personal search of accused Parmod and accused Arvind were carried out vide memos Ex.PW8/C and Ex.PW8/D. He further deposed that accused Parmod and accused Arvind made their disclosure statements Ex.PW8/E and Ex.PW8/F and accused Arvind got recovered one danda from his house near the gate which was kept in a cloth pullanda and sealed with a seal of JK and seized vide seizure memo Ex.PW8/G. He further deposed that accused Parmod got recovered one danda from the room of his house which was kept in a cloth pullanda and sealed with a seal of JK and seized vide seizure memo Ex.PW8/H. At the first instance, he did not identify the accused persons but when accused persons were specifically pointed out, he identified them. He also identified the case property. He was duly cross examined by ld. Counsel for accused persons.
SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 10 of 5217. PW-9 Sh. Ram Kumar : He has deposed that he is acquainted with handwriting and signatures of Dr. Charu Sudan as he had seen her writing and signing in due course of my official duty. He has seen death summary of Sonu, aged 18 years, male in judicial record which is in the handwriting of Dr. Charu Sudan and bearing her signature at point A. Death summary was exhibited as Ex.PW9/A bearing signatures of Dr. Charu Sudan at point A. He deposed that he had also seen death form no. 4 & form no. 2 in judicial record which are also in the handwriting of Dr. Charu Sudan and bearing her signatures at point A respectively. Form no. 4 was exhibited as Ex.PW9/B bearing signatures of Dr. Charu Sudan at point A. Form no.2 was exhibited as Ex.PW9/C bearing signatures of Dr. Charu Sudan at point A.
18. PW-10 ASI Hardeep Singh : He has deposed that on 24.10.2018, he had visited at service lane of H. No. 22, Harijan Basti, Village Dabri, New Delhi and inspected the site and also took the rough notes from the IO and also the spot. He further deposed that he prepared the scaled site plan as Ex.PW10/A. He was cross examined by ld. Counsel for accused persons.
19. PW-11 Sh. Deshraj : He has deposed that he was working in DDU Hospital as record clerk since July, 2001 and has seen Dr. Shalini Patidar writing and signing in his presence in due course of his duties. He further deposed that Dr. Shalini Patidar had signed and written not fit for statement on the application Ex.PW11/A of IO for recording the statement of the injured Sonu Kumar.
SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 11 of 5220. PW-12 ASI Joginder : He has deposed that on 15.08.2018, he received DD No. 27A and then he along with Ct. Ajay, on receiving DD No. 27A, reached at H. No. 22, Harijan Basti, Dabri, Delhi. He further deposed that he along with Ct. Ajay went to DDU Hospital and requested doctor for recording the statement of injured Sonu vide a letter already Ex.PW11/A but doctor opined not fit for statement. Thereafter, they both went back to PS. At PS, one lady namely Radhika met them and he recorded her statement already Ex.PW3/1. He prepared rukka Ex.PW3/1 and handed over the same to Duty Officer for registration of FIR. During investigation, accused Parmod and Arvind were arrested vide arrest memos already Ex.PW8/A and Ex.PW8/B and their disclosure statements were recorded vide memo already Ex.PW8/E and Ex.PW8/F. He then conducted personal search of both accused persons vide memos already Ex.PW8/C and Ex.PW8/D. He then got the medical examination of Rakesh conducted at DDU Hospital. He further deposed that during investigation, he had prepared the site plan Ex.PW12/A and on 16.08.2018, he recovered dandas at the pointing out of both accused persons and seized the same vide memos already Ex.PW8/G and PW8/H. He further deposed that recovered dandas were sealed with the seal of 'JK' and same are already Ex.P1 and Ex.P2. Both the accused persons were then produced before concerned Court and were sent to judicial custody. On 19.08.2018, he came to know through DD No. 45A Ex.PW12/B, that injured Sonu had expired in DDU Hospital. He then filled up Form 25-35 (1) (B) Ex.PW12/C in his handwritings and he had requested for postmortem vide letter Ex.PW12/D. He collected the blood gauze from the doctor after postmortem and seized the same vide seizure memo Ex.PW12/E and after postmortem of deceased SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 12 of 52Sonu, dead body was handed over to his relative vide identification memo already Ex.PW1/1. He had recorded the statement of witnesses and then further investigation of present case was marked to Insp. Narender. He handed over the file to MHC(R). He was duly cross examined by ld. Counsel for accused persons.
21. PW-13 Dr. Sandeep Kumar : He has deposed that he was working as CMO, DDU Hospital, New Delhi since March, 2018. He could identify the signature of Dr. Subhajit Das as he had worked with him and he was conversant with his signature and handwriting. He further deposed that he has left the services of hospital and present whereabouts of the Dr. Subhajit is not known to their office. He further deposed that MLC No.07870 Ex.PW13/A vide Emergency No. 236245 of Sonu Kumar S/o Sh. Surender aged about 18 years, Male had been prepared by Dr. Subhajit Das bearing his signature at point A. He further deposed that as per examination by Dr. Subhajit Das, the patient was unconscious, unresponsive at the time of arrival. His B.P. and Pulse were not recordable. Heart of patient was not working at that time. Patient was immediately given CPR and eventually the patient revived. Then, the patient was intubated, drugs given and he was further referred to medicine and neuro-surgery department. On local examination, patient was having a puncture wound over left parietal region with swelling left side of the forehead. He was duly cross examined by ld. Counsel for accused persons.
22. PW-14 Insp. Narender Singh : He has deposed that on 25.08.2018, the investigation of the present case was marked to him for further investigation on the direction of SHO. During the course of SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 13 of 52investigation, he collected postmortem report of deceased and recorded statement of the witnesses under Section 161 Cr.PC on 06.09.2018. He further deposed that he called ASI Hardeep, Draftsman for preparation of the scaled site-plan. He also deposed that accused Pankaj Kumar was arrested by him on 27.10.2018 vide arrest memo Ex.PW14/A and his disclosure statement was recorded. He also deposed that accused Pankaj Kumar was already having protection of arrest by the court so he was released on bail on furnishing bail bonds. He further deposed that he prepared the charge-sheet and filed the same against accused persons. He identified accused Pankaj Kumar in the court. He was duly cross examined by ld. Counsel for accused persons.
23. PW-15 Dr. V. K. Ranga, Specialist, Department of Forensic Medicine, DDU Hospital : He was called under Section 311 Cr.PC. He has deposed that on 20.08.2018, he carried out postmortem of deceased Sonu Kumar. There were external injuries on the body of the deceased i.e. stitched wound of size 5 cm present over left parietal region of head and contusion reddish brown colour of size 3.3 cm x 2.1 cm present over right parietal region of head. On internal examination, he found out that there was effusion of blood present underneath the right parietal region and occipital region of skull and there was subdural hemorrhage present over the right side of the cerebral hemisphere, subarachnoid hemorrhage present all over the brain and the brain congested. He has further deposed that he prepared the postmortem report No. 1466/2018 Ex.PX1. The cause of death was cerebral damage consequent upon blunt force impact to the head. All the injuries were antemortem in nature. He has further deposed SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 14 of 52that injury No. 2 i.e. contusion reddish brown in colour is sufficient to cause death in ordinary course of nature. The manner of death is homicidal. After seeing the case properties i.e. dandas Ex.P-1 and Ex.P-2, he has stated that it could be possible that the injuries mentioned in the postmortem report could be inflicted from the said dandas. He was duly cross examined by Ld. Counsel for accused persons.
24. The testimony of defence witness is detailed as under. `
25. DW-1 Sh. Ajesh Rana : He has deposed that on 15.08.2018, he came to know that accused Parmod has been implicated in a quarrel case and would not come to his duty on that day. He has further deposed that accused Parmod was working as a driver with him since 2011 and on 12.08.2018, he along with his family and his driver accused Parmod went to Ambala and returned to Delhi on 15.08.2018. He was duly cross examined by Ld. Addl. PP for the State.
Arguments addressed by Ld. Addl. PP for the State
26. Sh. Vijender Singh Kharb, ld. Addl. PP for the State has argued that the prosecution witnesses i.e. PW-2 to PW-6 have duly supported the case of prosecution. PW-2 Rakesh Kumar is injured. PW-3 is complainant Radhika who is daughter of PW-2. PW-4 Rahul Machal is son of PW-2. PW-5 Sameer @ Lala, is also relative of PW2. PW-6, is an independent witness from the locality and he has duly supported the case of prosecution against the accused persons.
SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 15 of 5227. Ld. Addl. PP has argued that these witnesses have consistently stated that the accused persons had used a wooden danda to inflict injuries upon the deceased Sonu and accused Arvind Kumar had hit the head of PW-2 with the stone.
28. He has argued that earlier postmortem report of deceased Sonu was admitted under Section 294 CrPC, however, prosecution moved an application under Section 311 CrPC and called the doctor concerned who conducted the postmortem on the body of deceased. PW-15 Dr. V.K. Ranga had duly proved the postmortem report and also proved his opinion on the weapon of offence when shown to him. PW-15 Dr. V.K. Ranga had opined that the cause of death is cerebral damage consequent upon blunt force impact to the head. Ld. Addl. PP for the State has further argued that the prosecution has proved the case against all the three accused persons beyond reasonable doubt and accused persons be convicted for the charges framed against them.
Arguments addressed by Ld. Defence counsel
29. Ld. counsel for accused persons has argued that DD no.27A was received regarding a quarrel at the address C-21 and not at C-22 where the IO/ASI Joginder alongwith Ct. Ajay visited for the first time. Ld. counsel has further argued that prosecution has failed to explain as to why the police officials went to C-22 and not to C-21. Ld. counsel for the accused persons had further argued that Rajbir, whose name has been mentioned by PW-3 in the complaint Ex.PW3/1, has not been examined and moreover, different names SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 16 of 52have come in the testimony of PW-2 and PW-3 with whom PW-2 Rakesh had heated arguments and, therefore, the motive to commit crime has not been established.
30. He has further argued that all the public witnesses who have deposed in the present case are related to the injured PW-2 Rakesh Kumar in one way or the other and all are interested witnesses and their testimonies are suffering from material contradictions and therefore, cannot be relied upon. Ld. counsel for the accused persons has argued that the recovery of alleged weapon of offence has been shown from an open place and therefore, the same is also doubtful. Ld. counsel has further argued that during the evidence of prosecution witnesses, it has come that on the dead body of deceased Sonu, a tattoo of 'R' was found on his forearm and 'R' indicates 'Radhika'. Ld. counsel has argued that Radhika and deceased Sonu were in relationship which was not agreeable to her family members and therefore, PW-2 Rakesh had inflicted injuries and had given beatings to Sonu (since deceased) as a result of which he died and further in order to save himself, he had falsely implicated these accused persons in the present case who were the residents of the same locality.
31. Ld. counsel has submitted that the investigation has not been carried out properly and no evidence was lifted from the spot. Neither the clothes of the injured nor that of deceased were seized or sent to the FSL. He has further argued that though the witness admitted that there was CCTV camera installed at the spot, however, no CCTV footage was taken.
SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 17 of 5232. Ld. counsel has further submitted that accused Parmod was not present at the time of incident and he was working as a driver and had gone with his employer out of station from 12.08.2018 till 15.08.2018 and he has been falsely implicated in this case and he has examined DW-1 Sh. Ajesh Rana in his defence and there is no reason to disbelieve his testimony.
33. Ld. counsel for accused persons further submitted that the prosecution has failed to prove the charges against the accused persons beyond reasonable doubt and therefore, they be acquitted from the charges framed against them.
Rebuttal arguments addressed by Ld. Addl. PP for the State
34. In rebuttal, Ld. Addl. PP for the State has submitted that so far as place of occurrence is concerned, since C-21 and C-22 are situated at a distance of 50-100 meters, therefore wrong mentioning of place of occurrence in the DD entry is not fatal to the prosecution case. With respect to the defence witness, ld. Addl. PP for the State has stated that DW-1 Sh. Ajesh Rana failed to bring anything on record with respect to the salary paid to accused Parmod or any CCTV footage or tolls paid enroute to Ambala. Ld. Addl. PP for the State has submitted that DW-1 has deposed falsely in order to set up a case of false plea of alibi and therefore, cannot be relied upon.
35. I have heard the arguments and have perused the case file properly.
36. Investigation was set into motion on receiving DD no.27A SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 18 of 52dated 15.08.2018 at about 11:53 am PS Dabri regarding quarrel. The said DD entry was marked to ASI Joginder (PW-12, IO of the case). He went to the spot but did not find anyone. Another DD entry was received in respect of an injured Sonu admitted in DDU hospital, who was opined to be not fit for statement. Complainant Radhika came to PS and narrated the incident. Her statement was recorded and FIR was registered. Her father namely Rakesh (PW-2) had received injuries apart from injured Sonu. Sonu subsequently died in the hospital after 4 days.
37. It may be noted for the purpose of record that there is slight discrepancy in the timings as mentioned in rukka, framing of charge and in the testimony of PW-5. Nothing much turns upon the same as it is not disputed that the incident is of morning and not of the night. No prejudice has been caused to accused persons in this regard. Therefore, it seems to be an inadvertent mistake which is not fatal to the prosecution.
38. It was argued by Ld. Defence counsel that different names have been mentioned in the testimony of PW-2 and PW-3 with whom the exchange of hot words took place from the accused persons' side and it does not stand proved that any verbal arguments had taken place at Valmiki Mandir. He has further argued that prosecution has failed to establish any motive to commit the crime. As per the prosecution version, the families of accused persons and that of injured were known to each other and there was enmity between them. On the date of incident i.e. on 15.08.2018, in the morning, heated arguments had SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 19 of 52taken place at Valmiki Mandir between PW-2 Sh. Rakesh and elder members of family of accused Parmod and Pankaj. Accused Arvind is also cousin of other two accused persons. PW-2 Rakesh had deposed that he had arguments with Prem whereas PW-3 Radhika had deposed that Rakesh (her father) had hot arguments with his chacha Balbir.
39. Relevant testimony of PW-2 in this regard is as follows:
"On 15.08.2018, there was a meeting of Valmiki Samaj at Valmiki temple at Dabri-Sitapuri road, Dabri. I was present in said meeting. The said meeting was organized by Sh. Rajbir Pradhan. Some other persons were also present in said meeting. We were discussing the matter of construction of temple. During the said discussion, Prem who is son of my Chacha Sh. Balbir Singh, told me saying that "tu kyu pradhan ban raha hai, teri maa toh hamare ghar roti khane aati hai".
On this I told him "tu to apne baap ko roti khila le." Thereafter, some verbal altercation took place and Prem sent back his father to home."
40. Relevant testimony of PW-3 Radhika in this regard is as follows :
"On 15.08.2018, a verbal altercation took place between my father Sh. Rakesh and his uncle (chacha) Sh. Balbir at Valmiki Mandir so a number of people had gathered there. When my father was coming back and reached near nala, altercation (gali-galoch) between accused persons Pramod Kumar, Arvind and Pankaj and my father took place. My mother received a call regarding the altercation."
41. In this regard, it may be noted that Prem, who is the father of accused Pankaj and Parmod, is the son of Balbir. No cross- examination of either of the aforementioned two witnesses was conducted on the point of altercation between two families on 15.08.2018 in Valmiki temple just prior to the incident. No suggestion was given that no such altercation had taken place. It stands proved SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 20 of 52that a heated arguments had taken place between PW-2 Sh. Rakesh and the family of accused persons on 15.08.2018 few minutes before the incident at Valmiki mandir. During said altercation, there were exchange of hot words and everyone was in a fit of anger. Though, it is not necessary to prove motive in a case based on eye witness account but in this case, prosecution has been able to establish the motive to commit the crime by accused person against injured Rakesh (PW-2). In so far as deceased Sonu is concerned, prosecution has not even alleged that accused persons had any motive to commit the offence qua deceased Sonu. Hence, the argument of Ld. Counsel for accused persons that motive to commit crime was not proved by prosecution is dealt herein above accordingly.
42. The case of prosecution is based on ocular testimony. Prosecution has cited PW-2 to PW-6 as eye-witnesses to the incident. The law relating to ocular testimony has been discussed in Shahaja @ Shahajan Ismail Mohd. Shaikh vs. The State of Maharashtra, Criminal Appeal No. 739 of 2017 decided on 14.07.2022, wherein Hon'ble Supreme Court of India has held that :
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of SC no. 1044/2018 State Vs. Parmod Kumar & Ors.FIR No. 442/2018, PS Dabri Page 21 of 52
the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on SC no. 1044/2018 State Vs. Parmod Kumar & Ors.FIR No. 442/2018, PS Dabri Page 22 of 52
one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
43. In view of the parameters on which the testimony of eye witnesses is to be tested, as laid down above, the testimony of complainant and injured is hereinafter appreciated.
SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 23 of 5244. PW-3 Ms. Radhika is the complainant in the present case and her statement was recorded on the very same day on the basis of which the FIR was registered initially under Section 323/308/34 IPC. It is pertinent to mention here that complainant Radhika (PW-3) is the daughter of injured Rakesh (PW-2). Therefore, her testimony falls within the purview of testimony of an interested witness.
45. The law relating to testimony of interested witness is quite clear. Hon'ble Supreme Court in Masalti vs. State of UP (AIR 1965 SC 202), Hon'ble Supreme Court observed that :
"14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
46. The testimony of complainant is to be assessed in view of aforestated legal principle qua the testimony of an interested witness. PW-3 in her statement (tehrir) Ex.PW3/1 deposed that while they were coming back and reached near H. No. 22, Harijan Basti at 11:30 am, accused Parmod and Arvind started abusing her father and, accused Arvind hit her father with a stone. When Sonu S/o Surender tried to intervene, accused Arvind and Parmod brought dandas from their house and both of them inflicted injuries on his head with those dandas.
SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 24 of 5247. However, during her testimony, she deposed that Sonu (since deceased) was hit by danda repeatedly by accused Parmod. Accused Pankaj had given fist and leg blows to Sonu (since deceased) and her father was hit by accused Arvind with a stone. Relevant extract from her testimony is as under:
"On 15.08.2018, a verbal altercation took place between my father Sh. Rakesh and his uncle (chacha) Sh. Balbir at Valmiki Mandir so a number of people had gathered there. When my father was coming back and reached near nala, altercation (gali-galoch) between accused persons Pramod Kumar, Arvind and Pankaj and my father took place. My mother received a call regarding the altercation. Then I alongwith my mother went there. Accused persons brought dandas to beat my father. My father was behind us. Accused Arvind hit my father with stone and blood started oozing out from his injury. When Sonu intervened, he was hit by danda repeatedly by accused Parmod. Accused Pankaj @ Chhotu had given beatings to Sonu with fist and leg blows."
48. In her testimony, PW-3 stated that accused Parmod had repeatedly hit Sonu (since deceased) with danda whereas in Ex.PW3/1 (tehrir), she stated that accused Arvind and Parmod both had hit Sonu (since deceased) with dandas. No cross-examination was conducted on behalf of accused Parmod to discredit the deposition of PW-3 in respect of hitting Sonu (since deceased) by accused Parmod with danda. No suggestion was given to her regarding the absence of accused Parmod at the spot. No suggestion was given to her that she was not present at the spot. The presence of Sonu (deceased) at the spot was never disputed by accused persons. Same is also proved by the testimony of PW-1 Surender Prasad, who has stated that his son Sonu (since deceased) had gone to fly kite at the house of Rakesh (injured) at 10:00 am on 15.08.2018 has remained unchallenged.
SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 25 of 5249. The defence was put to her in the form of suggestion that she had friendly relations with Sonu (since deceased) which was objected by her family members or that their parents called Sonu (since deceased) at her house and gave beatings to him because of which he died. She denied the abovestated suggestions.
50. It is relevant to point out here that at the stage of DE, an attempt was made to set up a plea of alibi for accused Parmod but such defence was never put to PW-3. The testimony of PW-3 against accused Parmod in respect of hitting Sonu (since deceased) repeatedly with danda could not be discredited during her cross-examination.
51. As against accused Arvind, though she levelled allegations of hitting Sonu (since deceased) by him with a danda in her tehrir Ex.PW3/1, however, she did not utter a word in this regard in her deposition. PW-3 maintained her stand with respect to accused Arvind to the extent that accused Arvind had hit her father (PW-2) with a stone. She had stated in her examination-in-chief that she rushed towards her father on seeing the blood oozing out of injury of her father and took him home. During her cross-examination, she denied the suggestion that her father had suffered injuries due to falling on a road. There is no reason to disbelieve this part of her testimony. Her testimony to the effect that accused Parmod had hit Sonu (since deceased) with danda and accused Arvind had hit his father with a stone is found consistent and reliable.
52. In so far as accused Pankaj @ Chhotu is concerned, she had materially improved her statement during her deposition. It is a matter SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 26 of 52of record that she never named accused Pankaj in her statement Ex.PW3/1 (tehrir). At no point of time, her supplementary statement against accused Pankaj during investigation was recorded. However, in her deposition before the court, she stated that accused Pankaj had given beatings to Sonu (since deceased) with fists and blows. Accused Pankaj was never arrested along with accused Parmod and Arvind. His MLC was also not prepared as it was done for other two accused persons. It is not the case of the prosecution that accused Pankaj had absconded anywhere. On the same very day, statement of injured Rakesh was also recorded, but he also did not name accused Pankaj @ Chhotu as one of the assailants. Therefore, the testimony of PW-3 Radhika against accused Pankaj is not found to be reliable.
53. From the above discussion, it is noted that some part of testimony of PW-3 is found to be reliable whereas some part is found to be unreliable. Therefore, it is to be seen whether such kind of testimony can be relied upon or not. This position is no more res integra. The testimony of witnesses has been broadly put under three categories by Hon'ble Supreme Court of India in case titled as "Lallu Manjhi & Anr. vs. State of Jharkhand" Appeal (Crl.) No. 15 of 2022 wherein it was held that :
"The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a SC no. 1044/2018 State Vs. Parmod Kumar & Ors.FIR No. 442/2018, PS Dabri Page 27 of 52
single witness. (Se Vadivelu Thevan etc. v. State of Madras, AIR 1957 SC 614)."
54. Applying the aforesaid legal principles, on scanning of the evidence of PW-3 individually, it is found that testimony of PW-3 falls under third category i.e. neither wholly reliable nor wholly unreliable. Portion of her testimony qua accused Arvind hitting PW-2 Rakesh with a stone and qua accused Parmod beating deceased Sonu repeatedly with dandas is found to be reliable. Whereas some other part of her testimony qua accused Pankaj in regard to giving fist and leg blows to deceased Sonu is not found to be reliable. But in such case, her testimony is not to be wholly discarded. It has to be seen whether reliable part of her testimony is duly corroborated. In order to look for corroboration, the testimony of injured Rakesh (PW-2) needs to be appreciated.
55. PW-2 Rakesh in his testimony had stated that accused Arvind had hit him with a stone on his head and all the accused persons gave beatings to Sonu (since deceased) with dandas. The relevant part of deposition of PW-2 Rakesh Kumar (injured) is as under :
"While I was returning to my home after the meeting, and when I reached in front of H. No.22, Chhotu @ Pankaj and Pramod started abusing me. In the meanwhile, the 3 rd associate of Chhotu @ Pankaj and Pramod namely Arvind also joined hands with them. My son Rahul, my daughter Radhika, and friend of Rahul namely Sonu (since deceased) also reached at the spot to intervene and save me. Accused persons Pankaj, Pramod and Arvind are present in the court today (correctly identified).
All accused persons started beating Sonu with wooden dandas. Accused Arvind hit with a stone on my head as a result of which I started bleeding. My daughter Radhika tried to intervene and save us. However, she was also beaten by accused persons with danda. I and my daughter Radhika tried SC no. 1044/2018 State Vs. Parmod Kumar & Ors.FIR No. 442/2018, PS Dabri Page 28 of 52
to save Sonu, before I was hit with a stone on my head by accused Arvind."
56. As regards injuries inflicting upon his person, PW-3 Rakesh Kumar had consistently deposed in his examination-in-chief as well as in cross-examination that only accused Lala @ Arvind had hit him with a stone on his head. PW-2 Rakesh has corroborated statement of PW-3 Radhika in respect of hitting him by a stone by accused Arvind. Nothing could be elicited in his cross-examination which could discredit his abovesaid testimony. Therefore, the deposition of PW-3 Radhika and PW-2 Rakesh to this effect that accused Arvind had hit Rakesh with a stone duly corroborates each other. The said fact is also proved by the MLC of injured Rakesh which was admitted by accused persons under Section 294 Cr.PC and was exhibited as Ex.PX2. Therefore, it stands duly established beyond any reasonable doubt that accused Arvind @ Lala had hit PW-2 Rakesh with a stone on his head.
57. In so far as deceased Sonu is concerned, PW-2 Rakesh deposed that all the three accused persons were assailants and had given beatings to Sonu (since deceased) with wooden danda. However, during his cross-examination at one stage, he stated that deceased Sonu was beaten by accused Parmod. Whereas in later part of his cross-examination, he again changed his version and stated that deceased Sonu was beaten by accused Parmod and Pankaj. He never deposed that accused Arvind hit Sonu (since deceased) with danda.
58. It is pertinent to mention here that statement of PW-2 under Section 161 Cr.PC was also recorded by the IO on the day of incident i.e. on 15.08.2018 wherein he levelled allegations of beatings Sonu SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 29 of 52(since deceased) with danda only against accused Parmod and Arvind only. Accused Pankaj was not at all in the picture by then. PW-2 repeatedly changed his stands qua accused Arvind and Pankaj as discussed above, however, he remained consistent qua accused Parmod's role in hitting Sonu (since deceased) with danda by accused Parmod throughout i.e. from the first day of his recording of his statement under Section 161 Cr.PC, till completion of his entire evidence. The portion of his (PW-2) testimony qua accused Parmod could not be shaken in the cross-examination as well.
59. The testimony of PW-3 Radhika qua beating Sonu (since deceased) by accused Parmod is duly corroborated by the testimony of PW-2 Rakesh. The defence of accused persons that PW-3 Radhika had friendship with Sonu (since deceased) was put to PW-2 but he denied the same. The relevant extract of that suggestion put to PW-2 Rakesh is as under :
"It is incorrect that when I came to know about the friendship of deceased Sonu and my daughter, I asked the deceased Sonu to come to my house through complainant. It is incorrect that I was aware that Sonu was intoxicated at the date of incident. It is incorrect to suggest that deceased Sonu was intoxicated and he died at my home while hitting himself on a wall. Vol. Nothing of this sort had happened."
60. In fact in his cross-examination, he had stated that deceased Sonu was having cordial relations with his family. The entire defence of the accused persons is that his daughter i.e. PW-3 Radhika had an affair with deceased Sonu which was not agreeable to PW-2 Rakesh. Ld. Defence counsel had also argued that deceased had a tattoo 'R' on his arm which means 'Radhika' in order to argue that they had an affair. This fact does not stand established merely by finding a tattoo SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 30 of 52of 'R' on the arm of the deceased specially in view of the fact that mutually contradictory defences were set up in evidence of PW-2 and PW-3. PW-2 was suggested that Sonu died at his (PW-2) home while hitting himself on the wall, where PW-3 Radhika was suggested that due to severe beatings given by her family members, he died. This defence of affair between PW-3 and deceased is a concocted story and is liable to be discarded. Accused Parmod had also set up a plea of alibi during his defence evidence, however, no such suggestion was put to PW-2 Rakesh in his cross-examination.
61. Hence, the testimony of PW-2 read alone is found reliable and consistent against accused Arvind to the extent that accused Arvind had hit him (PW-2) with a stone and qua accused Parmod that he (Parmod) had beaten Sonu (since deceased) with a danda.
62. The testimony of PW-2 Rakesh is not found reliable against accused Pankaj @ Chhotu or against accused Arvind regarding hitting Sonu (since deceased) with dandas and is, liable to be discarded.
63. The testimony of PW-2 and PW-3 has been independently as well as collectively analysed and appreciated in the preceding paras and on scanning the same thoroughly, it is noted that the reliable part of testimony of PW-2 and that of PW-3 complements each other. Both of their testimonies, when read individually or collectively proves beyond reasonable doubt that -
(a) Accused Arvind had hit Rakesh (PW-2) with a stone and
(b) Accused Parmod had beaten Sonu (deceased) with danda.SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 31 of 52
64. PW-4 Sh. Rahul is the son of PW-2 Sh. Rakesh Kumar. PW-4 Rahul has deposed that accused Parmod and Pankaj @ Chhotu had hit Sonu (since deceased) with dandas and accused Arvind had hit his father with a brick. The relevant part of his testimony is stated as under :
"When we were coming back from said mandir and reached near nala, my Tau's sons Parmod, Chhotu and Arvind came there. Parmod and Chhotu started beating Sonu with dandas and Arvind also threw brick on my father which landed on his head. Thereafter, Rahul (another Rahul) who was present there, took aside Sonu while I was busy in attending my father. I took my father to my home and gave him first aid. Sonu's father also called me up and then he told me that he had taken his son to DDU Hospital."
65. During his cross-examination, he had stated that on the date of incident, police met him in the hospital and after the incident also the police visited his house. He further deposed that the father of deceased Sonu was enquired in his presence. Ld. Counsel for accused persons had argued that when he was present during investigation, why his statement was not recorded. So far as this argument is concerned, the witness has no control over the IO. If IO had not examined any witness, the witness does not become unreliable on this very count. For this purpose, his deposition is required to be tested and there is a need to look for corroboration.
66. As regards injured Rakesh (PW-4's father), PW-4 had deposed on the same lines as that of PW-2 Rakesh (his father) and PW-3 Radhika who is his sister. No question was put to him in respect of accused Arvind hitting his father with a brick/stone. Therefore, this part of his testimony is duly corroborated by the testimony of PW-2 SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 32 of 52and PW-3 and, therefore, found to be reliable.
67. In so far as accused Parmod is concerned, nothing was put to him (PW-4) during his cross-examination regarding hitting Sonu (since deceased) by accused Parmod with danda. Nothing could be elicited from his testimony as such and same cannot be discredited. His testimony is duly corroborated by the reliable part of testimony of PW-2 and PW-3 who had deposed that accused Parmod had hit Sonu (since deceased) with danda.
68. In so far as accused Pankaj @ Chhotu is concerned, PW-4 had deposed that he had also given beatings to deceased Sonu with danda. This part of his testimony cannot be believed as none of the witness had named Pankaj as the assailant when IO examined the witnesses after the incident. It is worthwhile to note that only two accused persons i.e. Parmod and Arvind were arrested on the date of incident. The name of accused Pankaj had popped up much later. There is no corroboration in respect of hitting Sonu (since deceased) with danda by accused Pankaj. Therefore, this portion of his testimony is not at all reliable.
69. The reliable and duly corroborated part of the testimony of PW-4 is as under :
(a) Accused Arvind had hit PW-2 Rakesh with a stone.
(b) Accused Parmod had beaten Sonu (deceased) with danda.
70. PW-5 is the fourth eye-witness cited by the prosecution. In his testimony recorded on 11.03.2020, he has levelled allegations against SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 33 of 52accused Parmod and Arvind in respect of giving beatings to Sonu (since deceased) with dandas. He did not depose anything about injuries sustained by PW-2 Rakesh.
71. In his cross-examination, he stated that on the day of incident, when he saw Sonu (since deceased) for the first time, Sonu was lying on the ground. He also stated that when he saw Sonu (since deceased) for the first time on the date of incident, he saw him with Rahul who had assisted him while taking him in gali. This indicates that he had not witnessed the incident and had reached the spot when the incident had already happened. In this regard, a leading question was put to him by Ld. Addl. PP for the State and was asked to explain as to whether he saw accused Arvind and Parmod beating Sonu (deceased) as stated by him in his examination-in-chief, or he saw Sonu (deceased) only when he was assisted by Rahul while taking him towards the gali as stated by him in his cross-examination. He replied that he saw the accused persons beating Sonu (deceased). It is matter of common knowledge that such kind of sudden quarrels occurs within fraction of seconds and, therefore, it is not possible that after hearing commotion, he would have reached the spot in no time and then would have seen as to who had inflicted injuries upon whom. PW-5 had given different versions during his testimony. Merely a reply in response to the leading question of Ld. Addl. PP for the State, does not make the testimony of PW-5 credible on the point of witnessing the incident by him. Hence, prosecution has failed to prove that PW-5 was an eye-witness to the incident.
72. The deposition of PW-5 that he took Sonu (since deceased) in SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 34 of 52an e-rickshaw along with two other persons to his (Sonu's) residence, is corroborated by testimony of PW-1 Surender Prasad, who had disclosed his name as one of the boys who had brought his son to his house and, therefore, the same stands proved beyond any doubt. This indicates that though he did not witness the occurrence of the incident but he reached the spot after hearing noises and commotion in the gali.
73. PW-6 Rahul S/o Sh. Ram Sukhit Mehto is the fifth prosecution's eye-witness. PW-6 deposed that all the three accused persons had given beatings to Sonu (since deceased) with sticks. The relevant portion of his testimony is as under :
"The date of incident was 15th of August of that year. On that day at about 12.00 noon I was present at the roof of the house of Rakesh Uncle who was residing in front of our house. I was flying kite at that time. Thereafter I heard some noise and when I looked at the gali near Nala I saw fighting between persons going on. Thereafter I came down from Rakesh Uncle's roof and went there. Thereafter I saw the accused persons who were present in the court, but I do not know their names, beating one Sonu with sticks on head. I know sonu since he used to come there and his father was having an egg stall.
At this stage witness points towards the accused persons present in the Court today (correctly identified)."
74. The careful perusal of his testimony shows that he was on the roof when fight was going on. The witness would have taken some time in coming down from roof to the gali. The assailants would not have waited for PW-6 before inflicting injuries to deceased Sonu. The probability of this witness witnessing the incident is very weak and his testimony is not free from suspicion and, therefore, cannot be believed.
SC no. 1044/2018 FIR No. 442/2018, PS Dabri Page 35 of 5275. In the later part of his testimony, he deposed that he took the injured Sonu to nearby gali from where he arranged an E-rickshaw and took Sonu (deceased) to his home. This part of testimony of PW-6 is corroborated by the testimony of PW-1, who had named PW-6 as one of the boys who had brought his son (deceased) to his residence in an e-rickshaw on the date of incident. Therefore, prosecution has miserably failed to establish that PW-6 Rahul had seen accused Parmod, Pankaj and Arvind beating Sonu (deceased) with dandas. His testimony is only proved beyond any doubt to the extent that PW6 along with PW-5 Lala and one other boy had taken Sonu (deceased) in an e-rickshaw to his (Sonu's) house after he suffered injuries and was lying in the gali.
76. On analyzing the evidence of PW-1 to PW-6, it is found that PW-2 Rakesh, PW-3 Rakesh and PW-4 Rahul S/o Rakesh are the only actual eye-witnesses to the incident. Prosecution has failed to prove that PW-5 and PW-6 have witnessed the incident, however, it is proved that they immediately reached the spot and their deposition after reaching the spot and taking deceased Sonu in an e-rickshaw to his residence and dropped him there, is found to be reliable.
77. Let us now assess whether the defence evidence led by accused Parmod has been able to leave a dent in the prosecution case. DW-1 has deposed in favour of accused Parmod and has deposed that accused Parmod was his driver and from 12.08.2018 till 15.08.2018, he along with his family and accused Parmod had gone to Ambala. He was extensively cross examined by Ld. Addl. PP for the State. During his cross-examination, he admitted that he did not bring any proof SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 36 of 52regarding payment of salary of accused Parmod being his driver. He did not produce the receipts regarding payment at the tolls at National Highway. The testimony of DW-1 is not found to be reliable specifically in view of the fact that this defence of alibi was not suggested to the prosecution witnesses at any point of time by accused Parmod. Hence, the defence produced by accused Parmod is clearly an afterthought and cannot be believed.
78. Ld. counsel for accused persons had also argued that police officials had gone at the wrong address. The argument is of desperation as nothing much turns upon this as the place of occurrence (gali) is not disputed. In any case, as per the testimony of PW-12, he had gone to House number C-22 but nobody was found there. Hence, this argument is liable to be rejected. It does not affect the prosecution case at all.
79. Ld. counsel for accused persons has also argued that there are serious lapses on the part of IO in conducting the investigation. Crime team was not called at the spot. No blood or earth control was lifted from the spot. Even the blood stained clothes of injured Rakesh (PW2) were not seized by IO. No CCTV footage was seized by the IO despite that fact that CCTV camera was installed at the spot. Undoubtedly, the lapses as pointed out by Ld. Defence counsel have been found to be committed by the investigation officer, however in this case, dehors the evidence on the abovementioned lapses/issues, the ocular testimony of witnesses coupled with medical evidence had clearly established the guilt of accused Pankaj and accused Arvind beyond reasonable doubt. In these circumstances, any such lapses do SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 37 of 52not grant any benefit to the accused persons. Reliance in this regard is placed on "C. Muniappan vs. State of T.N." (2010) 9 SCC 567 wherein it was held as under:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
80. Now coming to the individual role of the accused persons in view of appreciation of testimony of eye-witnesses.
Parmod
81. Prosecution has proved beyond reasonable doubt that accused Parmod had beaten Sonu (since deceased) with dandas in light of reliable testimony of PW-2 Rakesh, PW-3 Radhika and PW-4 Rahul S/o Rakesh.
Arvind
82. It has been proved beyond reasonable doubt that accused Arvind had hit PW-2 Rakesh with a stone. As per the MLC of injured SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 38 of 52Rakesh Ex. PX2, the injuries has been opined to be simple. However, prosecution has failed to prove that accused Arvind had hit Sonu (since deceased) with danda.
Pankaj
83. Prosecution has failed to establish that accused Pankaj @ Chhotu had beaten deceased Sonu (since deceased) either with danda or in any other manner.
Medical Evidence (Qua injured Rakesh)
84. As regard injured Rakesh, MLC Ex.PX2 is on record wherein the injuries were opined to be simple. This MLC has been admitted by accused persons during their statement under Section 294 Cr.PC. Therefore, it has been duly proved that injured Rakesh (PW-2) had received simple injuries which were inflicted by accused Arvind as discussed above.
Medical Evidence qua deceased Sonu
85. The MLC of deceased Sonu (since deceased) has been exhibited as Ex.PW13/A. Dr. Sandeep, CMO, DDU Hospital, New Delhi has appeared on behalf of Dr. Subhajit Das, who had prepared the MLC of Sonu Kumar. The said MLC was exhibited as Ex.PW13/A. There was no cross-examination with respect to identifying the signature of Dr. Subhajit Das by Dr. Sandeep, therefore, MLC stands proved. As per the contents of MLC, the MLC was prepared on 15.08.2018. As per the testimony of PW-13 and as SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 39 of 52per the contents of MLC, PW-13 has deposed as under :
"As per his examination, the patient was unconscious, unresponsive at the time of arrival. His B.P. and Pulse were not recordable. Heart of patient was not working at that time. Patient was immediately given CPR and eventually the patient revived. Then, he was intubated, drugs given and he was further referred to medicine and neuro-surgery department. On local examination, patient was having a puncture wound over left parietal region with swelling left side of the forehead."
86. The deposition of PW-13 in terms of the contents of the MLC of deceased Sonu shows that when he was taken to hospital, he was in unconscious condition. He had swelling on left side of the forehead and a puncture wound over left parietal region. His BP and pulse were not recordable. It is only after he was given CPR, he revived and thereafter he was medically treated. However, as per the record, he expired on the fourth day of the incident i.e. on 19.08.2018.
87. PW-15 Dr. V.K. Ranga, Department of Forensic Medicine, DDU Hospital had conducted the postmortem on the body of deceased Sonu. He exhibited his postmortem report as Ex.PX1. It is pertinent to mention here that initially accused persons had admitted the postmortem report, however, at a later stage, on the application under Section 311 Cr.PC moved by Ld. Addl. PP for the State, PW-15 Dr. V.K. Ranga was summoned and his deposition was recorded. In his postmortem report as well as in his deposition, he described the internal and external injuries on the body of deceased opined the cause of death.
EXTERNAL EXAMINATION:
External Injuries:SC no. 1044/2018
State Vs. Parmod Kumar & Ors.FIR No. 442/2018, PS Dabri Page 40 of 52
1. Stitched wound of size 5 cm (4 stitches) present over left parietal region of head.
2. Contusion, reddish brown in colour of size 3.3cm x 2.1 cm present over right parietal region of head.
INTERNAL EXAMINATION HEAD a. Scalp /Sub scalp: Effusion of blood present underneath the right parietal region and occipital region of scalp. b. Brain, Meninges & Vessels: Subdural haemorrhage present over right side of cerebral hemisphere, subarachnoid haemorrhage present all over the brain, brain congested. c. Skull and Base of skull: NAD NECK Hyoid Bone / Thyroid Cartilage / Cricoid Cartilage / Tracheal Rings & Mucosa / Any Foreign Body in Trachea: All cartilages of neck and hyoid bone are intact. Mucosa of tracheal lumen was congested.
CHEST (THORAX)
1. Ribs and Chest Wall : NAD.
2. Oesophagus : NAD.
3. Pleural Cavities : NAD
4. Lungs : Both lungs are congested.
5. Heart and pericardial sac : NAD.
ABDOMEN
Abdominal wall : NAD.
Peritoneal Cavity : NAD.
Stomach:
a. Contents : About 200 ml yellow paste.
b. Mucosa : NAD.
Small intestine, Large intestine, vermiform appendix:
Contains fluid and faecal matter and gases, Walls NAD.
Liver, gall bladder, biliary passages : Congested.
Spleen : Congested.
Kidney, renal pelvis, ureter : Both kidneys
are congested.
GENITAL ORGAN
1. Urinary Bladder : NAD.
2. Rectum : Empty
3. Genital organs : NAD.
SC no. 1044/2018
State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 41 of 52
Spinal cord and vertebral coloumn : NAD.
SPINAL COLUMN : Intact.
OPINION:
1. TIME SINCE DEATH: About one day prior to postmortem examination.
2. The cause of death: Cause of death is cerebral damage consequent upon blunt force impact to the head. All injuries are ante mortem in nature, recent in duration. Injury no. 2 is sufficient to cause death in ordinary course of nature.
2. Manner of death: The possibility of homicidal can't be ruled out.
88. Dr. V.K. Ranga was cross-examined by Ld. Defence Counsel, who denied the suggestion that such injuries can be inflicted from falling on the floor or hitting the corner of the bed. At this stage, it is pertinent to mention here that different defences have been taken by the Ld. Defence Counsel during the testimonies of prosecution witnesses. In the testimony of PW-2, he was suggested that PW-2 had inflicted injuries to deceased Sonu whereas in the testimony of PW-3 it was suggested to her that deceased Sonu had hit himself on the wall and he received injuries and now it was suggested to doctor conducting the postmortem that the injuries could be inflicted from falling on the floor or hitting the corner of the bed which he denied.
Therefore, the testimony of PW-15 stands proved beyond reasonable doubt that deceased Sonu has suffered external and internal injuries as mentioned in the postmortem report as stated above and the cause of death was cerebral damage consequent upon blunt force impact to the head and death of Sonu was homicidal.
89. From the aforesaid discussions, it stands proved beyond SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 42 of 52reasonable doubt that the deceased Sonu has died due to injuries suffered by him on his head by the beatings given to him by accused Parmod with a danda.
Recovery of weapon of offence
90. PW-12 ASI Joginder (IO) had deposed that on 16.08.2018, he recovered danda at the pointing out of both the accused persons in pursuance of their disclosure about the same in their disclosure statements. PW-8 HC Ajay, who accompanied IO/PW-12 deposed that accused Arvind got recovered one danda from his house near the gate vide seizure memo PW8/G and accused Parmod got another danda recovered from the room of his house vide seizure memo Ex.PW8/H.
91. It is settled law that only the portion of the disclosure statement which leads to the discovery of a fact is admissible under section 27 of Indian Evidence Act. The position of law in relation to Section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and Others Vs. Emperor (AIR 1947 PC 67 wherein it was held:
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved."
92. The careful perusal of the disclosure statements by both accused Pramod and Arvind reveals that they had produced the dandas SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 43 of 52to the IO at the time when the disclosure statement was recorded. As such, there was no recovery in pursuance of disclosure statements of both the abovesaid accused persons under section 27 of the Indian Evidence Act. Hence, the recovery of alleged weapon of offence at the instance of accused Parmod and Arvind has become doubtful and hence, it is not admissible under section 27 of Indian Evidence Act.
93. It is now to be seen whether the doubtful recovery of weapon of offence affects the prosecution case in any manner. In "Rakesh and Another Vs. State of UP and Another" (2021) 7 Supreme Court Cases 188, deceased had died due to a gunshot injury. The gun was recovered, however, the ballistic report opined that the bullet recovered did not match with the gun recovered making the recovery of gun (weapon of offence) doubtful. In these facts, Hon'ble Supreme Court observed in Rakesh & Anr. (Supra) that :
"12. xxxxxxxxxxxxxxxxxxx The injury by the gun has been established and proved from the medical evidence and the deposition of Dr. Santosh Kumar, PW-5. Injury 1 is by gunshot. Therefore, it is not possible to reject the credible ocular evidence of PW-1 and PW-2 - eyewitnesses who witnessed the shooting. It has no bearing on credibility of deposition of PW-1 and PW-2 that A-1 shot deceased with a gun, particularly as it corroborated by bullet in the body and also stands corroborated by the testimony of PW-2 and PW-5. Therefore, merely because the ballistic report shows that the bullet recovered does not match with the gun recovered, it is not possible to reject the credible and reliable deposition of PW-1 and PW-2."
94. The facts of the present case are identical. The recovery of dandas at the instance of the accused is found doubtful, however, the reliable and coherent ocular testimony of the eye-witness (PW-2, PW3 and PW-4) coupled with the medical evidence (injuries sustained by SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 44 of 52deceased Sonu on his head, which have been proved by PW-15), proves the case of prosecution against accused Parmod beyond reasonable doubt. Mainly because recovery of danda at the instance of accused persons is found to be doubtful, that does not become a ground for acquitting the accused in the light of the reliable testimonies of eye-witnesses coupled with medical evidence. Hence, the doubtful recovery of weapon of offence in the present case is not fatal to the prosecution in any manner.
95. In the present case, it has been proved beyond reasonable doubt that accused Parmod had hit Sonu (deceased) on his head with danda. The said ocular testimony is further corroborated by the medical evidence wherein the cause of death of deceased Sonu has been proved to be due to cerebral damage consequent upon the blunt force impact to the head.
96. The discussion made above proves beyond reasonable doubt that death of Sonu was homicidal consequent upon beatings given to Sonu (deceased) on his head by accused Parmod with danda.
97. The accused persons have been charged under Section 304 IPC and not for murder punishable under Section 302 IPC. In order to determine whether accused Parmod is liable to be convicted under Section 304 Pt. 1 IPC or under Section 304 Pt. 2 IPC, it is necessary to understand the distinction between culpable homicide not amounting to murder and culpable homicide amounting to murder as defined under Section 299 and 300 IPC respectively. The locus classicus on Section 299 and 300 IPC is State of Andhra Pradesh vs. Rayavarapu SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 45 of 52Punnayya & Anr. (1976) 4 Supreme Court Cases 382 wherein Hon'ble Supreme Court held as under :
"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section
304.
13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death"
is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 46 of 52the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.
Section 299 Section 300
A person commits culpable Subject to certain exceptions
homicide homicide if the act culpable homicide is murder
by which the death is if the act by which the death
is caused is done - is caused is done -
INTENTION
(a) With the intention of causing (1) With the intention of causing death; or causing death; or
(b) With the intention of causing (2) With the intention of such bodily injury as is likely to causing such bodily cause death; or injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE
(c) With the knowledge that (4) With the knowledge that the act is likely to cause death that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury is mentioned above.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 47 of 52assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
16. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause
(b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable"
result of the injury, having regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala is an apt illustration of this point.
18. In Virsa Singh v. State of Punjab Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500): "The prosecution must prove the following facts before it can bring a case under Section 300, 'thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 48 of 52further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "murder". Illustration (c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 49 of 52whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages."
98. Now let us consider the facts of this case in the light of legal principles laid down in aforesaid judgment.
99. In the present case, charge has been framed under Section 304 IPC, therefore, it is to be seen that whether the case in hand falls in Section 304 Pt. 1 IPC or Section 304 Pt. 2 IPC.
100. In Krishnamurthy vs. State Represented by the Inspector of Police Criminal Appeal No. 63 of 2011, the prosecution case was that the deceased and the accused persons including the appellant were the neighbours in the village and a quarrel took place in respect of missing goat belonging to the deceased and during the said quarrel, appellant had assaulted the deceased on his head with wooden log. The injuries recorded were subdural hematoma present on the left frontal parietal region with left frontal intra cerebral hemorrhage. Doctors who conducted the postmortem opined the death due to shock and hemorrhage on account of head injuries and due to subdural hematoma on the left frontal intra cerebral hemorrhage. The doctor had stated before the court that such injuries were possible with the SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 50 of 52use of weapons like wooden log. In those circumstances, Hon'ble Supreme Court observed that :
"8. In view of the above, and having regard to the role played by the appellant, to the use of the weapons and to the injuries suffered by the deceased, we are of the considered opinion that it could not be said by any stretch of imagination that the appellant had an intention to cause such injuries to the deceased-Samidurai so as to cause his death. In our opinion, at the most it could be said that he had committed the alleged act with the knowledge that such act was likely to cause death. Therefore, his case would fall under Section 304 (II) of IPC and not under Section 302 IPC."
101. The testimony of prosecution witnesses as discussed above clearly shows that there was no enmity between the accused persons and deceased Sonu. In fact, a quarrel had taken place between PW-2 Rakesh and the accused persons on the other hand and deceased had only intervened to rescue PW-2 Rakesh. Injured Rakesh was hit only by a stone and he had received simple injuries. There is no evidence on record to suggest that the accused persons had brought dandas to inflict injuries on injured Rakesh. The incident had taken place in a heat of passion on account of quarrel unfortunately culminating in the demise of deceased Sonu. There is no evidence to suggest any premeditation on the part of accused persons to assault the deceased Sonu leave alone the evidence to show that they intended to kill him. As already said that there was no previous enmity between accused persons and deceased Sonu. Therefore, there is no evidence available on record to establish the intention to cause any bodily injury as is likely to cause death which is an essential ingredient in order to convict the accused under Section 304 Pt. 1 IPC.
102. On the other hand, there is sufficient evidence on record which SC no. 1044/2018 State Vs. Parmod Kumar & Ors.
FIR No. 442/2018, PS Dabri Page 51 of 52establishes that accused Parmod had caused death of deceased Sonu recklessly with the knowledge that the injuries which he was inflicting on the vital part i.e. head of deceased Sonu were likely to cause his death. Therefore, accused Parmod is found guilty for committing the offence of culpable homicide not amounting to murder under Section 304 Pt. 2 IPC.
Conclusion
103. (a) Accused Parmod is convicted for the offence punishable under Section 304 Pt. 2 IPC; (b) Accused Arvind is convicted for the offence punishable under Section 323 IPC and (c) Accused Pankaj is acquitted for the charges under Section 304/323/34 IPC framed against him.
Digitally signed by VANDANA VANDANA JAIN
Announced in open court JAIN Date:
13.05.2024 2024.05.13
14:13:12 +0530
(Vandana Jain)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi
Note: This judgment contains fifty two (52) pages and having my signature on each page.
Digitally signed by VANDANA VANDANA JAIN JAIN Date: 2024.05.13 14:13:21 +0530 (Vandana Jain) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi SC no. 1044/2018 State Vs. Parmod Kumar & Ors. FIR No. 442/2018, PS Dabri Page 52 of 52