Delhi District Court
Relied On The Authorities Reported As ... vs . State, on 8 November, 2012
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-04, NORTH-EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Unique I.D. No. : 02402R0646792008
Sessions Case No. : 32/2008
FIR No. : 131/08
Under Section : 304/452/506/34 IPC
Police Station : New Usmanpur, Delhi
In the matter of :
STATE
Versus
1. DHARA SINGH S/o Fateh Singh
R/o: H.No. 178, Gali No.9, Ambedkar Basti
Ghonda, Delhi.
2. DILAWAR SINGH S/o Brij Mohan
R/o: H.No. 178, Gali No.9, Ambedkar Basti
Ghonda, Delhi.
3. BRIJ MOHAN S/o Fateh Singh
R/o: H.No. 178, Gali No.9, Ambedkar Basti
Ghonda, Delhi.
4. ATUL KUMAR @ BABLOO S/o Mahender Singh
R/o: 147/9, Ambedkar Basti
Ghonda, Delhi. ..........Accused Persons
Date of Institution : 30.08.2008
Date of committal : 03.09.2008
Date of reserving judgment : 10.10.2012
Date of pronouncement : 08.11.2012
JUDGMENT
1. This charge-sheet has been filed against accused persons namely (1) Dhara Singh (2) Dilawar Singh (3) Brij Mohan and (4) FIR No. 131/08, PS New Usmanpur Page 1 of 43 Atul Kumar @ Babloo for facing trial for commission of offences U/s 304/452/506/34 IPC.
2. The facts of the prosecution case in brief are that on 31.05.2008, a PCR call vide DD No. 27-A was received at about 9 PM at PS:
New Usmanpur, Delhi regarding an incident of quarrel at 183, Gali No. 9, Ambedkar Basti, Ghonda Delhi. On receipt of the call, IO/ASI Ram Kishore alongwith Ct. Raj Kumar reached at the spot and found that injured persons had already been shifted to GTB Hospital. Thereafter, IO/ASI Ram Kishore alongwith Constable went to GTB Hospital and obtained the MLC No. B-3444/08 of injured Manish S/o Mangal Singh, MLC No.B-3445/08 of injured Nitin S/o Mangal Singh, MLC No. B-3446/08 of injured Mangal Singh (complainant). Injured Manish was declared unfit for statement, whereas, other two injured were fit to make their statement. IO/ASI Ram Kishore recorded the statement of the complainant Mangal Singh, which is as under :-
"I am residing alongwith my family at House No. 183, Gali No. 9, Ambedkar Basti, Ghonda Delhi and in service of MCD. Today dated 31.05.2008, at about 8.45 PM, I alongwith my sons namely Manish and Nitish were sitting outside our house. Then, Dilawar and his father namely Brij Mohan came to our house armed with hockey sticks and danda and started beating Manish. When I and my son Nitish tried to intervene, we were also beaten by them. Thereafter, Dhara S/o Fateh Singh also came there and hit me with danda. Dilawar, Brij Mohan and Dhara had also said that today, they will teach us a lesson. Dilawar, Brij Mohan and Dhara had caused head injuries to me and my sons with hockey and dandas. Legal action be taken."FIR No. 131/08, PS New Usmanpur Page 2 of 43
On the basis of the above- statement of the complainant, IO/ASI Ram Kishore got the FIR registered under Section 308/34 IPC at the PS. During the investigation, IO visited the spot alongwith the complainant Mangal Singh and at his instance, inspected the spot and prepared the site plan. IO also recorded the statement of injured Nitish U/s 161 Cr.P.C. Thereafter, on 02.06.2008, Injured Manish @ Vicky died at St. Stephen's Hospital and subsequently, Sections 452/506/302 IPC were also added in the charge-sheet. Thereafter, the investigation of this case was entrusted to IO/Inspector Sushil Chandra Sharma. On 03.06.2008, postmortem examination on the dead body was got conducted at GTB Hospital vide PM report No. 593/08, wherein, the doctor opined that the cause of death in this case was "shock as a result of antemortem head injury produced by blunt force impact" and time since death was given as one day. Thereafter, on 03.06.2008, accused persons namely Dilawar Singh and Dhara Singh were arrested at the instance of the complainant. They disclosed regarding their involvement in the commission of the present offence. Their arrest documents were prepared. Accused Dilawar Singh and Dhara Singh got recovered the weapons of offences i.e. hockey stick and danda (sticks) from their house and same were seized by the IO. On 04.06.2008, accused Brij Mohan was also arrested at the instance of the complainant. Accused Brij Mohan also accepted his involvement in the commission of offence in the present case. Thereafter, accused Dilawar Singh, Dhara Singh and Brij Mohan were sent to J/C. Thereafter, the supplementary statement U/s 161 Cr.P.C of the complainant Mangal Singh was also recorded, wherein, he also disclosed the name of Atul Kumar as one of the FIR No. 131/08, PS New Usmanpur Page 3 of 43 assailant. Thereafter, accused Atul Kumar who was on Anticipatory Bail was also arrested on 25.08.2008 when he came at the Police Station. Accused Atul also confessed his involvement in the offence of the present case. IO had also collected the subsequent opinion in respect of the weapon of offence from the concerned doctor. The doctor opined that the Injury Nos. 3 and 5 (mentioned in PM report No. 593/08) are possible by both the weapons and injury No. 1, 2 and 4 are not possible by both the weapons. After the completion of the investigation, charge-sheet U/s 304/452/506/34 IPC was filed against accused Dilawar Singh, Brij Mohan, Dhara Singh and Atul Kumar @ Babloo.
3. Ld. Metropolitan Magistrate got the documents supplied to the accused persons and the case was committed to Sessions Court vide order dated 03.09.2008.
4. My Ld. Predecessor, vide order dated 05.02.2009, charged all the accused persons namely Dhara Singh, Dilawar Singh, Brij Mohan and Atul Kumar @ Babloo for the offences punishable U/s 452/34 IPC, 308/34 IPC and 304/34 IPC, to which, they pleaded not guilty and claimed trial.
5. The prosecution in support of its case examined as many as 18 witnesses.
6. The prosecution examined following material witnesses:-
a) PW-1 Mangal Singh is the complainant and injured in this case who proved his statement Ex.PW1/A. He also proved FIR No. 131/08, PS New Usmanpur Page 4 of 43 the arrest memo of accused Dhara Singh Ex.PW1/B, his personal search memo Ex.PW1/C, arrest memo of accused Dilawar Ex.PW1/D, his personal search memo Ex.PW1/E and arrest memo of accused Brij Mohan Ex.PW1/F. He also identified the dead body of the deceased at GTB Hospital Mortuary vide identification memo Ex.PW1/G and received the dead body of his son after the postmortem vide receipt Ex.PW1/H.
b) PW-2 Raju Chandel is an alleged eye-witness of the incident. He called the police over 100 number from his mobile. He identified the lathi Ex.PW2/Article-1 and hockey stick Ex.PW2/Article-2.
c) PW-4 Satbir is also an alleged eye-witness of the incident.
He deposed that on 31.05.208, he was present in his house and heard some noise at about 08.45 PM. On this, he came out and saw accused Dhara Singh, Dilawar, Atul and Brij Mohan were armed with lathi, danda, hockey and iron rod and hitting upon Manish, Nitish and Mangal and were also abusing them. He deposed that he knows all the accused persons as they were residing in the same area. He also went to GTB Hospital.
d) PW-5 Nitish is the injured, brother of deceased and material witness in this case. He corroborated the complainant regarding the incident.
7. The prosecution also examined following formal witnesses :
a) PW-3 Dr. S. Kohli, CMO, GTB Hospital has proved the MLC bearing No. D-3444/2008 of injured Manish S/o FIR No. 131/08, PS New Usmanpur Page 5 of 43 Mangal vide Ex.PW3/A, which was prepared by Dr. Murtaza. He deposed that as per the MLC, the patient was unfit for statement and Dr. Murtaza had opined the nature of injury under observation blunt'. This witness has also proved the MLC no. B-3446/08 of injured Mangal vide Ex.PW3/B, which was prepared by Dr. Amit and deposed that as per the MLC, Dr. Amit had opined the nature of injuries under observation blunt. PW-3 has also proved the MLC No. B-3445/08 of injured Nitish vide Ex.PW3/C, which was prepared by Dr. Ashar
b) PW-6 Dr. M. Momin, Sr. Resident at GTB Hospital has proved the handwriting of Dr. Manish in portion X encircled on the MLC Ex.PW3/A of patient Manish. He deposed that as per MLC, Dr. Manish could not give final opinion as the patient absconded from Neuro Trauma Ward.
c) PW-14 Dr. Sumit Tellewar conducted the postmortem examination on the dead body of deceased Manish vide PM report Ex.PW14/A. He opined that the cause of death in this case was shock as a result of antemortem head injuries produced by blunt force impact and time since death was about one day. He proved the sketch of weapons of offence Ex.PW14/B and also proved the detailed subsequent opinion Ex.PW14/C. He opined that the injury Nos. 3 and 5 as mentioned in the injury report, were possible by both the weapons and injuries no. 1, 2 and 4 were not possible by both the weapons.
d) PW-15 H.C Khem Chand was deputed as Duty officer on 01.06.2008 from 8.00 PM to 8.00 AM and at about 11.50 FIR No. 131/08, PS New Usmanpur Page 6 of 43 PM, on receipt of rukka from Ct. Raj Kumar sent by ASI Ram Kishore, he recorded the FIR of this case Ex.PW15/A. He made his endorsement on rukka which is Ex.PW13/A in portion encircled X to X. After registration of the FIR, he sent the copy of FIR and original rukka to ASI Ram Kishore through Ct. Raj Kumar.
e) PW-16 S.I Shareef Ahmed was posted as S.I at PS New Usmanpur on 04.06.2008 and on that day, SHO handed him the case file for producing accused persons namely Dhara Singh, Brij Mohan and Dilawar in the court for J/C remand. He alongwith H.C Sarvesh, Ct. Raj Pal and Ct. Mehboob Ali produced the said accused persons in the court and they were remanded to J/C and thereafter, he returned back to PS and returned the file to the IO.
f) PW-17 S.I Mukesh Kumar Jain, Draftsman, was called by IO at the spot. He inspected the spot, prepared the rough notes and on the basis of same, prepared scaled site plan Ex.PW17/A.
8. The prosecution also examined following witnesses of arrest and investigation :
a) PW-7 Ct. Raj Kumar was on Emergency Duty on 31.05.2008.
He on receipt of DD N. 27-A reached at the spot alongwith initial IO/ASI Ram Kishore and also accompanied IO to the GTB Hospital. He also got the FIR registered from the PS and after registration of the FIR, received copy of FIR and rukka from Duty officer and handed over the same to IO/ASI Ram FIR No. 131/08, PS New Usmanpur Page 7 of 43 Kishore at the spot.
b) PW-8 Ct. Praveen is the witness of arrest of accused persons namely Dhara Singh and Dilawar and recovery of hockey and danda effected at the instance of accused Dilawar Singh and Dhara Singh from their houses. He identified the 'danda' Ex.PW2/Article-1, produced by accused Dhara Singh to the IO and also identified a 'hockey' Ex.PW2/Article-2, produced by accused Dilawar Singh to the IO.
c) PW-9 Ct. Mahboob Ali is the witness of arrest of accused Brij Mohan, who was arrested on the identification of the complainant Mangal Singh.
d) PW-10 H.C Raj Pal Singh is also the witness of arrest of accused Brij Mohan who was arrested on the identification of the complainant Mangal Singh.
e) PW-11 S.I Girish Gothwal was posted as Sub-Inspector at PS New Usmanpur on 25.08.2008. He, on the instructions of SHO, received the exhibits from the malkhana; went to GTB Hospital and submitted the exhibits alongwith the application of SHO/IO to Dr. Sumit Tellewar for obtaining subsequent opinion. He got accused Atul medically examined. He obtained the subsequent opinion from the doctor concerned and also collected site plan from S.I Mukesh Jain (Draftman) and handed over the same to the IO.
f) PW-12 H.C Sarvesh is also the witness of arrest of accused Dhara Singh, Dilawar and Brij Mohan. He is also the witness FIR No. 131/08, PS New Usmanpur Page 8 of 43 of recovery of danda and hockey effected at the instance of accused Dhara Singh and Dilawar. He identified the 'danda' Ex.PW2/Article-1 and 'hockey' Ex.PW2/Article-2.
g) PW-13 ASI Ram Kishore is the initial IO who alongwith Ct. Raj Kumar visited the spot on receipt of DD No. 27-A Mark PW13/PA. He collected the MLC of all the injured from GTB Hospital and recorded the statement of the complainant Ex.PW1/A. He proved his endorsement Ex.PW13/A on the statement of the complainant. He handed over the rukka to Ct. Raj Kumar for registration of FIR. He prepared site plan Ex.PW13/B at the instance of the complainant. On 02.06.08, he received DD No. 17-A regarding death of injured Manish at St. Stephen's Hospital. He shifted the dead body to GTB Hospital and got preserved the same in the Mortuary and also added Section 302 IPC in the investigation. He is also witness of arrest of accused Dhara Singh and of Dilawar and recoveries effected at their instance. He proved the seizure memo of both the weapons i.e. 'danda' and 'hockey' vide Ex.PW13/C. He also identified the 'danda' Ex.PW2/Article-1 and 'hockey' Ex.PW2/Article-2.
h) PW-18 Inspector Sushil Chandra Sharma was the Investigating Officer who in addition to other memos proved the the request for postmortem Ex.PW18/A, form 25.35 Ex. PW18/B, statement of Satbir regarding identification of dead body Ex.PW18/C, personal search memo of accused Brij Mohan Ex.PW18/D, arrest memo of accused Atul Ex.PW18/E, personal search memo of accused Atul Ex.PW18/F and his FIR No. 131/08, PS New Usmanpur Page 9 of 43 request for obtaining the subsequent opinion Ex.PW18/G.
9. In the statement u/s 313 Cr.PC, incriminating evidence against accused persons was put to them, wherein, they denied the prosecution evidence and claimed innocence.
10. Accused Dhara Singh in his statement U/s 313 Cr.P.C has stated that he is innocent and falsely implicated in the present case. No recovery of incriminating articles had been made from him or on his behalf. He had not made any disclosure statement in the present case before the police officials and police officials had taken his signatures on blank papers. On 31.05.2008, he was present in the retirement party of Mangte Ram at his residence when they were taking meals in that party, he came to know that there was a quarrel at Ghonda Chowk with Mangal. After hearing the said news, they went to Ghonda Chowk but no person was found there. Police officials lifted him from his house for inquiry and falsely implicated him in the present case on the basis of false and fabricated complaint/evidence. He opted to lead evidence in his defence.
11. Accused Dilawar in his statement U/s 313 Cr.P.C. has stated that he is innocent and falsely implicated in the present case. No recovery of incriminating articles had been effected from him. Police officials lifted him from his house for inquiry and falsely implicated in the present case on the basis of false and fabricated complaint/evidence. He had not made any disclosure statement in the present case before the police officials and police officials had taken his signatures on blank papers. He was FIR No. 131/08, PS New Usmanpur Page 10 of 43 not present there and had not committed any offence as alleged. He opted to lead evidence in his defence.
12. Accused Brij Mohan in his statement U/s 313 Cr.P.C. has stated that he is innocent and falsely implicated in the present case. No recovery of incriminating articles had been effected from him. On 31.05.2008, he was present in the retirement party of Mangte Ram at his residence when they were taking meals in that party, he came to know that there was a quarrel to Ghonda Chowk with Mangal. After hearing the said news, they went to Ghonda Chowk but no person was found there. He went to the Police Station for inquiry as to why Dilawar was called at PS. When he reached at Police station, police officials asked himself to wait for few minutes and later on the police officials falsely implicated him in the present case. He also opted to lead evidence in his defence.
13. Accused Atul @ Babloo in his statement under section 313 Cr.PC has stated that he was on duty on the day of the incident and after that day, he attended his duty regularly. He was falsely implicated in this case. He also opted to lead evidence in his defence.
14. Accused persons examined DW-1 Ashok in their defence. He testified that he knew accused Dhara, Brij Mohan, Atul and Dilawar as they were his neighborers. On 31.05.2008, accused Dhara Singh and Brij Mohan were present at his house at about 9/9.30 PM as celebrations were going on, on the eve of retirement of his father Sh. Mangte Ram. He had gone to call Atul FIR No. 131/08, PS New Usmanpur Page 11 of 43 twice, once at about 8/8.15 PM and again at 9.30 PM from his residence but he had not returned back from duty. He stated that accused persons have been falsely implicated in this case.
15. I have heard submissions from Sh. Virender Singh Ld. Addl. PP for the State as well as from Sh. Manish Bhadoria Advocate for the complainant and Sh. B.K. Sharma, Sh. A.K. Sharma and Sh. A.K. Tiwari (Amicus Curiae), Advocates for accused persons and have also gone through the record.
16. The accused persons were charged for offences under sections 304/34 IPC, 308/34 IPC and 452/34 IPC by my Learned predecessor vide order on charge dated 05.02.2009.
17. Section 304 IPC does not create any offence but provides the punishment for culpable homicide not amounting to murder and draws a distinction between the penalty to be inflicted in cases, where intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the exceptions under section 300 IPC, and cases in which the crime is culpable homicide not amounting to murder that is to say, where there is knowledge that death will be a likely result, but intention to cause death, or bodily injury likely to cause death is absent. The section is in two parts: the first part is concerned with culpable homicide committed with either of two types of intention and the second part is concerned with culpable homicide committed with particular knowledge. Section 304 IPC applies to :-
(i) when the case falls under one or the other of the clauses of section 300 IPC, but is covered by any of FIR No. 131/08, PS New Usmanpur Page 12 of 43 the exceptions to that section, or
(ii) when the injury caused is not of the higher degree of likelihood, which is covered by the expression 'sufficient in the ordinary course of nature to cause death', but is of a lower degree of likelihood which is generally spoken of as an injury likely to cause death and the case does not fall under clause 2 of section 300 IPC, or
(iii)when the act is done with the knowledge that death is likely to ensue, but there is no intention to cause death or an injury likely to cause death. In such cases, there may be either no intention to cause any injury at all, or there may be an intention to cause simple or grievous hurt, but not an injury likely to cause death.
18. In the present case, as per the prosecution, the accused persons on 31.05.2008 had given beatings to deceased Manish, complainant Mangal (father of deceased) and Nitish (brother of the deceased), later persons had also received injuries and they were taken to GTB Hospital in a PCR van by PW21 HC Sumer Singh from gali No. 9, H. No. 183, Ambedkar Basti, near Ghonda Chowk to GTB Hospital where they were got admitted. The MLC in respect of deceased Manish has been proved by PW-3 Dr. S.K. Kohli, CMO-GTB hospital who has identified the handwriting of Dr. Ashar who prepared the said MLC which bears the endorsement unfit and injuries under observation. Final opinion was not given as the patient had absconded as per the MLC. However, PW-1 Mangal Singh has deposed that his other relatives had removed Manish for treatment to St. Stephens Hospital where Manish died on 02.06.2008. This witness has also deposed that when the injured Manish was being given beatings, he fell unconscious. PW-1 Mangal Singh has clarified FIR No. 131/08, PS New Usmanpur Page 13 of 43 that the doctor at GTB hospital had given opinion on seeing the condition of Manish that anything could happen to him as he was serious. PW-6 Dr. M. Momin, Sr. Resident, Deptt of Neuro Surgery, GTB hospital has testified that MLC Ex. PW3/A of patient Manish, male, bears the handwriting of Dr. Manish at portion encircled 'X' and bears his signatures at point 'Y'. Dr. Manish could not give final opinion as the patient absconded from neuro trauma ward. PW-14 Dr. Sumit Tellewar, Asstt. Professor- Forensic Medicine has proved the detailed postmortem report in respect of deceased Manish Ex. PW14/A which bears his signatures. He also proved his subsequent opinion/report Ex. PW14/B in the context of probable use of recovered weapon of offence i.e. one hockey stick and one wooden bamboo stick. He had opined that injury No. 3 and 5 as mentioned in the injury report were possible by both the weapons and injury No. 1, 2 and 4 were not possible by both the weapons. He also proved detailed subsequent opinion Ex. PW14/C. Dead body of deceased Manish was examined by PW-14 Dr. Sumit Tellewar. PW-18 Inspector Sushil Sharma has deposed that on 02.06.2008, they received a call from St. Stephens hospital regarding death of injured Manish vide DD No. 17 A, Mark PW18/PA, proved by PW-19 HC Khemchand as Ex. PW19/A. PW-18 Inspector Sushil Sharma went to St. Stephen's hospital with police staff and dead body of Manish was sent to Mortuary through ASI Ram Kishore PW-13. PW-18 Inspector Sushil Sharma had filled up the request form for postmortem Ex. PW18/A and form 25.35 Ex. PW18/B. After the postmortem was conducted on the dead body of deceased Manish, his dead body was handed over vide receipt Ex. PW1/H to his relatives namely FIR No. 131/08, PS New Usmanpur Page 14 of 43 PW-1 Sh. Mangal, and the same was witnessed by HC Raj Kumar and one Satbir s/o Chaman. Therefore, from the testimony of these witnesses, it is established on recored that injured Manish expired at St. Stephens hospital and his death has been established on record.
19. Now, it has to be seen whether the alleged injuries on the person of deceased Manish were caused by the accused persons in furtherance of their common intention. In this regard, the prosecution has relied on complainant PW1 Mangal Singh, PW2 Raju Chandel, PW4 Satbir and PW5 Nitish. On behalf of the complainant, Ld. Counsel as well as Ld. Addl. PP have submitted that all these 4 material witnesses have fully corroborated the prosecution version and have testified that accused Brij Mohan, Dilwar Singh, Dhara Singh and Atul Kumar @ Babloo on 31.05.2008 at about 08.45 PM at the house of complainant Mangal Singh i.e. House No. 183, Gali No. 9, Ambedkar basti, Ghonda, Delhi, gave beatings to deceased Manish, complainant Mangal and Nitish (father and brother of deceased Manish) by hockey, danda, iron rod and base ball bat due to which deceased Manish died at Stephens Hospital and other two also received injuries on their person. However, injured Mangal was caused injury on his head, therefore, the accused persons were also charged for offence under section 308/34 IPC and 452/34 IPC and prosecution has proved all the charges beyond reasonable doubt.
20. Sh. B.K. Sharma Advocate on behalf of accused Dilawar and Brij Mohan, Sh. A.K. Tiwari- Amicus Curiae for accused Dhara Singh FIR No. 131/08, PS New Usmanpur Page 15 of 43 and Sh. A.K. Sharma Advocate for accused Atul Kumar @ Babloo have submitted that there are material contradictions in the testimony of four PWs as accused Atul was not named by complainant PW1 Mangal Singh in complaint Ex. PW1/A and his name was added in the supplementary statement. The police has not recovered any iron rod or base ball bat from any of the accused. The statements of PW2 Raju Chandel and PW4 Satbir were not recorded by the IO before 10.06.2008. No other public witness has been cited or examined by the prosecution to corroborate the testimony of complainant. No evidence has been collected by the IO to prove that there were any blood stain at the alleged place of occurrence. There is delay in recording statement of PW2 Raju Chandel and PW4 Satbir and therefore, their testimony is not reliable and casts a cloud of suspicion on the credibility of the witnesses. Sh. B.K. Sharma Advocate has relied on the authorities reported as 'Ashok Narang Vs. State, 2012 (1) JCC 482 Delhi High Court'; 'Atmaduddin, Appellant Vs. State of U.P., Respondents, 1974 CRI. L.J. 1300'; 'In re Balan @ Balusami Mudali and Ors., Appellants, 1973 CRI. L.J. 1311'; 'Balakrushna Swain, Appellant Vs. The State of Orrissa, Respondents, 1971 Cr. LJ 670 SC'; and 'Ganesh Bhavan Patel & Anr., Appellants Vs. State of Maharashtra, Respondents, AIR 1979 SC 135'. With due respect to the authorities, I am of the considered view that there was only a marginal delay of about 10 days in recording the statements of PW2 Raju Chandel and PW4 Satbir. It is pertinent to mention that PW2 Raju Chandel has deposed that he had called police on 100 number from his mobile phone number 9350065815 and in his cross-examination, no suggestion contrary to this fact was FIR No. 131/08, PS New Usmanpur Page 16 of 43 given. This fact has also been corroborated by PW4 Satbir and it is fortified with the contents of DD No. 27-A dated 31.05.2008 Ex. PW19/A which confirms that DD entry was recorded on the basis of information received through telephone. Therefore, there is no reason to disbelieve this fact. Non-recovery of alleged weapon of offences viz. iron rod and base ball bat, delay in recording statement and minor contradictions in the testimonies are not material and testimonies of these witnesses cannot be rejected only on account of thereof. Admittedly, PW2 Raju Chandel and PW4 Satbir are close relatives of the family of the complainant/victims. They are resident of same/or adjacent premises and their presence at the alleged place of occurrence at about 08.45 PM on 31.05.2008 was probable. In authority reported as 'Mohan Singh Vs. State of Bihar, 2011 (4) RCR Criminal 84', Hon'ble Supreme Court held that identification from voice was possible if there is evidence to show that witness was closely acquainted with the accused to identify him from his voice and in the present case, all the witnesses as well as the accused persons were resident of same area being neighborers. In the authority reported as 'Seema Vs. State NCT of Delhi, 2012 (3) JCC 2011', relied by learned counsel for the complainant, it was held by Hon'ble Supreme Court that ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. Evidence of an injured witness must be given due weightage being a stamped witness and his presence could not be doubted. In the present case, PW1 Mangal Singh and PW5 Nitish both are father and brother of deceased Manish and they both had also sustained injuries besides deceased Manish and were medically examined at GTB hospital. MLCs of FIR No. 131/08, PS New Usmanpur Page 17 of 43 both the injured as well as of deceased show that they were admitted at GTB hospital by HC Surender 1113, B-22. Therefore, in my considered view, the presence of of PW1 Mangal Singh and PW5 Nitish must be given due weitage as they are stamped witnesses and deserve to be trusted. All the said 4 PWs i.e. PW1 Mangal Singh, PW2 Raju Chandel, PW4 Satbir and PW5 Nitish have corroborated the facts that the injured persons were given beatings by the accused persons on the alleged date, time and place. On behalf of the accused persons it has been submitted by learned counsel that the place of occurrence was the Ghonda Chowk and not the Gali No. 9, Ambedkar Basti, Ghonda, Delhi, and reliance has been placed on the authority reported as 'Kadir, Appellant Vs. The State, Respondent, 1987 CRI. L. J. 101 (Delhi High Court)' and it is submitted that site plan prepared at the instance of witness during the course of investigation is inadmissible in evidence as per, 'Sat Kumar, appellant Vs. State of Haryana, respondent, AIR 1974 SC 294'. With due respect the authorities referred by Ld. Defence counsel do not apply on the facts of this case because the witnesses have denied that the alleged incident had occurred at Ghonda Chowk. The accused persons have failed to adduce any evidence in this regard. PW21 HC Sumer Singh has deposed that on receipt of call from control room PHQ regarding quarrel taken place at Gali No. 9, H. No. 183, Ambedkar Basti, near Ghonda Chowk, he reached there in PCR van and found there three injured persons namely Mangal, Nitish and Manish and took them to GTB hospital where he got them admitted. In the cross-examination he has denied the suggestion that injured persons were taken from Ghonda Chowk. Moreover PW13, ASI Ram Kishore has deposed FIR No. 131/08, PS New Usmanpur Page 18 of 43 that he alongwith injured Mangal went to the spot and prepared the site plan Ex. PW13/B at his instance. PW17 SI M.K. Jain- Draftsman proved the scaled site plan Ex. PW17/A and no contrary suggestion was given to him by learned defence counsel as such the testimony of this witness is deemed to have been admitted as correct.
21. Sh. B.K. Sharma Advocate for accused Brij Mohan and Dhara Singh has also submitted that the prosecution has failed to attribute any motive on the accused persons and relied on the authority reported as State of Punjab Vs. Jasbir Singh & Anr., 1996 (3) C.C. Cases 245 (HC) (High Court of Punjab & Haryana). However, it is well settled that there is no burden of proof on the prosecution to establish the existence of any motive as held in the authority reported as 'State Vs. Durga Charan barik, AIR 1963 Orissa 33'. It was further submitted by learned counsel that it was a sudden quarrel between the parties and therefore, no offence was made out against the accused persons. This submission is not tenable because no such suggestion was given to the witnesses in cross-examination nor any evidence in this regard has been adduced. The authority reported as 'State of Karnataka, Appellant Vs. Bhimappa & Ors. (Accused) Respondents, 1985 CRI. L. J. NOC 1 (KANT.)' relied by learned counsel does not apply on the facts. Ld. Counsel for accused has also relied on the authority reported as 'Ashok Narang Vs. State, 2012 (1) JCC 482 Delhi High Court' and submitted that on account of inconsistencies in the testimony of witnesses their testimony has become unreliable. In my considered view, there appears no material inconsistency in the testimony of PWs and FIR No. 131/08, PS New Usmanpur Page 19 of 43 therefore the authority relied by Learned counsel is not applicable. Ld. Counsel further relied on authority reported as 'Ashok Kumar Vs. State, 1994 JCC 522, Delhi High Court' submitting that the prosecution did not examine the concerned doctor and there is no opinion of the doctor on the basis of the X- ray. With due respect the authority relied by learned counsel is not applicable on the facts of this case because the postmortem report has been proved by PW-14 Dr. Sumit Tellewar who has also given the final opinion Ex. PW14/C. For the same reasons, the other authorities reported as 'Nazar Mohd. @ Hanuman Vs. State of Delhi, 1994 JCC 689 Delhi High Court'; 'Rajesh @ Vimal Kumar & Anr., Vs. State (Delhi Admn.), 1995 JCC 148 Delhi High Court' and 'Eshwaraiah & Anr. Vs. State of Karnataka, 1995 (2) C.C. Cases 60 (SC)' and relied by learned Defence Counsel are not applicable on the facts of this case.
22. Learned Defence counsel has also relied on the authorities reported as 'Munshi Prasad & Ors., appellants Vs. State of Bihar, respondent, 2001 CRI. L.J. 4708 SC'; 'State of Haryana Vs. Ram Singh, 2002 (1) JCC 385, SC'; 'Ajay Goswami Vs. State, 2011 (2) JCC 1279'; and 'Ashok Narang Vs. State, 2012 (1) JCC 482 Delhi High Court' and submitted that the defence witnesses are entitled to equal treatment and in this case accused has examined DW1 Ashok Kumar who deposed that accused Dhara Singh and Brij Mohan were present at his house at about 09.00/09.30 PM and they were falsely implicated. In the cross-examination, this witness has admitted that no video- graphy or photography of the function which was going on at his residence was done. He came to know about the fact that FIR No. 131/08, PS New Usmanpur Page 20 of 43 accused persons have been falsely implicated on expiry of one week. This witness has nowhere claimed that on the alleged date of occurrence he was informed by anyone about the alleged occurrence. Accused Brij Mohan and Dhara Singh in their statement u/s 313 Cr.PC claimed that on 31.05.2008 they were present in the retirement party of Mangte Ram at his residence when they were taking meals, and came to know that there was a quarrel at Ghonda Chowk with Mangal. After hearing the said news, they went to Ghonda Chowk but no person was found there. They were lifted by the police from their house. None of them disclosed the name of any person from whom they got the information about quarrel. They have not claimed that they had informed said Mangte Ram or DW1 Ashok about the said quarrel. Mr. Mangte Ram has not appeared in the witness box and DW1 Ashok has not corroborated the contention of the accused persons that they had received any information about the quarrel. DW1 Ashok has also admitted that he did not inform any senior police officer that the accused persons were falsely implicated. He did not write any letter or complaint to senior police officials. In reply to the court question, DW1 Ashok deposed that he came to know on the next date that a quarrel had taken place at Maujpur Ghonda and therefore, if the accused persons were present at his residence and any news was received at his residence he would have got the said information on the same day. No videography or photography was done to prove the presence of accused persons at the house of DW1 Ashok between 08.00 to 9.30 PM. Therefore, no reliance can be placed on the testimony of DW-1 Ashok.
FIR No. 131/08, PS New Usmanpur Page 21 of 4323. It has been submitted by Ld. Defence counsel that absence of blood stains at the alleged place raises considerable doubt on the prosecution regarding the place of occurrence. He has relied on authority reported as 'Narain Singh & Anr. Vs. State (Delhi DB) 1997 (1) C.C. Cases, 234 HC'. This submission with due respect, is not applicable on the facts and circumstances of this case because no evidence has been adduced on behalf of the accused persons to prove that the quarrel had taken place at any place other than what has been deposed by the PWs. However, PW1, PW2, PW4, PW5, PW13, PW18, PW19 and PW21 have fully corroborated the prosecution version that the quarrel had taken place at Gali No. 9, House No. 183, Ambedkar Basti, Near Ghonda Chowk. Non-lifting of blood stained earth-control from the place of occurrence by the IO does not in any way suggest that the alleged incident did not occur at the said place.
24. The submission of Ld. Defence Counsel that the injured and/or the police officials did not name the assailants or the accused persons to the doctor who prepared the MLCs of the injured persons, is an unnatural conduct and it is unsafe to convict on their testimony. The alleged recovery of blood stained hockey stick and danda alone, are not sufficient to prove the guilt of the accused persons. Reliance has been placed on the authority reported as 'Rehman Vs. State, 2010 (4) CCC (HC) 281'. With due respect the authority relied by Ld. Defence Counsel is not applicable on the facts and circumstances of this case, because the injured persons were shifted from the place of occurrence by PCR to GTB hospital. Injured Manish was unconscious, PW1 Mangal Singh and PW5 Nitish were in injured condition and their FIR No. 131/08, PS New Usmanpur Page 22 of 43 MLCs have been proved on record. It cannot be expected from an injured person to disclose the names of the assailants to the doctor on his own unless the injured is specifically asked by the doctor concerned. The condition of deceased Manish was serious and it was obvious that PW1 and PW5 being his father and brother were more concerned about welfare of the deceased Manish so that he was provided with immediate medical attention. PW21 Head Constable Surinder Singh has proved that he had taken the injured persons in PCR van, from the place of occurrence to GTB hospital. He was also not expected to name the accused persons to the doctor because he had reached at the place of occurrence on receipt of information from control room. The accused persons were named by PW1 Mangal Singh in his complaint Ex. PW1/A. All the accused persons namely Dhara Singh, Dilawar Singh, Brij Mohan and Atul Kumar @ Babloo have been named by PW1 Mangal Singh, PW2 Raju Chandel, PW4 Satbir and PW5 Nitish. However, in the initial complaint Ex. PW1/A, complainant/PW1 Mangal Singh has not named accused Atul. This complaint was made by him on 31.05.2008. Shri A.K. Sharma, Advocate for accused Atul has submitted that in case, the accused Atul was involved in the alleged incident, he would have been named by the complainant/PW-1 Mangal Singh, in complaint Ex. PW1/A. However, he has named accused Atul in his supplementary statement. It was submitted by Ld. defence counsel that if accused Atul was involved in this incident, it cannot be believed that complainant Mangal Singh would not have mentioned his name in original complaint Ex. PW1/A. He submitted that neither any weapon of offence has been recovered by the police from FIR No. 131/08, PS New Usmanpur Page 23 of 43 accused Atul, nor he was arrested till 25.08.2008. He was regularly attending his office and IO had arrested him on the basis of supplementary statement made by the complainant purported to have been made on 02.06.2008, whereas, in the charge-sheet, it has been mentioned without disclosing the date when supplementary statement of PW1 Mangal Singh was recorded and that during investigation, complainant Mangal Singh had mentioned the name of accused Atul @ Babloo in his supplementary statement and thereafter arrest was made on 25.08.2008, and therefore, accused Atul has been falsely implicated.
25. There is no denial that the complaint PW1 Mangal Singh had not named accused Atul in his complaint Ex. PW1/A. In his cross- examination, PW1 deposed that police recorded his statement at police station on 02.06.2008. If his supplementary statement was actually recorded by the police on 02.06.2008 and he had named accused Atul, the police would have arrested him immediately on 02.06.2008 or on subsequent date, as early as possible. There is no evidence that the accused Atul was absconding or was not available at his residence. In the charge-sheet, it has been mentioned that during the course of further investigation, complainant Mangal Singh had mentioned about fourth person, namely Atul @ Babloo in his supplementary statement who on 25.08.2008 was apprehended. The IO has mischievously not mentioned in the charge-sheet the date when supplementary statement of complainant Mangal Singh was recorded. It cannot be believed that any such statement was made by complainant because if the said statement was made on 02.06.2008, accused FIR No. 131/08, PS New Usmanpur Page 24 of 43 Atul would have been arrested on or within few days after 02.06.2008 because the other accused persons as per the prosecution were arrested by 04.06.2008. In his cross- examination, PW1 Mangal Singh admits that accused Atul was known to him prior to the incident but strangely he does not know that the accused was working at DTL Company and was attending the office regularly from the date of incident till the date of arrest. PW1 Mangal Singh has voluntarily added that accused Atul was absconding since the date of incident. His arrest has been shown from police station New Usmanpur on 25.08.2008 by PW18 Inspector Sushil Chandra Sharma. According to this witness, accused Atul alongwith his father came to police station New Usmanpur on 25.08.2008 and he was on anticipatory bail and therefore, the statement of complainant Mangal Singh that accused Atul was absconding is contrary to this statement of PW18. In cross-examination, PW18 expressed ignorance about any complaint made by complainant Mangal Singh that accused Atul had been deliberately left out and investigation was not fair. He denied the suggestion that accused was not on anticipatory bail and had gone to the police station on his asking where he was falsely implicated. PW18 could not state the date of grant of anticipatory bail to the accused Atul.
26. In reply to the court question even after going through the police file as well as judicial file, PW18 Inspector Sushil Chandra Sharma, Investigation Officer stated that there is no anticipatory bail order on record. Strangely, PW18 Inspector Sushil Chandra Sharma the IO does not even know whether the accused Atul was working as a driver with Delhi Trans Co Ltd. He did not even FIR No. 131/08, PS New Usmanpur Page 25 of 43 verify that accused Atul was on duty on the date and time of alleged occurrence. PW1 Mangal Singh has denied the suggestion that he had deliberately given the name of Atul subsequently in order to falsely implicate him. PW1 does not know the date when this accused was arrested. The statement of PW5 Nitish Ex. PW5/DA is purported to have been recorded by IO on 01.06.2008 and in case the name of accused Atul was disclosed by PW5 on that day the accused Atul would have been arrested by police immediately on that day or thereafter by 04.06.2008 when the other three accused persons were arrested. PW1 Mangal Singh has deposed that accused Atul had come to his house on 31.05.2008 at 04.00 p.m., also and therefore, there was no reason for not mentioning the name of accused Atul in his complaint Ex. PW1/A, contemporaneously with the complainant. Complainant/PW1 Mangal Singh was fit to make statement as per the MLC. No effort was made by the IO to effect any recovery of weapon from accused Atul. No other incriminating evidence such as blood stained clothes of this accused have been recovered nor has any recovery of weapon been effected from him. PW2 Raju Chandel and PW4 Satbir admittedly appeared at the place of occurrence subsequently and their statements were recorded by the IO on 10.06.2008. In view of these facts the presence of accused Atul at the time of alleged occurrence and his involvement in the alleged offnece appears to be doubtful and the prosecution has failed to establish the guilt of accused Atul beyond all shadow of reasonable doubt. Therefore, in my considered view, accused Atul is entitled to benefit of doubt and acquittal for all the alleged offences for which he has been charged.
FIR No. 131/08, PS New Usmanpur Page 26 of 4327. As regards other three accused persons namely Dhara Singh, Dilawar Singh and Brij Mohan, PW1 Mangal Singh and PW5 Nitish have clearly named these accused persons; the witnesses knew them prior to the date of incident being neighbourers. PW2 Raju Chandel and PW4 Satbir have also named these accused persons. All PWs have identified these accused persons in the court. The recovery of hockey stick at the instance of accused Dilawar Singh from the roof of his house No. 178, Gali No. 9, Ambedkar Basti, Ghonda, has been proved by PW13 ASI Ram Kishore vide Ex. PW13/D, and recovery of danda has been proved from accused Dhara Singh at his instance from his house vide Ex. PW13/C. Accused Brij Mohan is the father of accused Dilawar Singh and has also been named and identified by all PWs i.e. PW1 Mangal Singh, PW2 Raju Chandel, PW4 Satbir and PW5 Nitish. PW14 Dr. Sumit Tellewar has proved the postmortem report Ex. PW14/A in respect of deceased Manish describing following ante-mortem injuries :-
1) Reddish brown abrasion measuring 0.6cmX0.2 cm present on the right cheek, 4.5 cm in front of right ear lobule and 3.5 cm lateral to right angle of mandible.
2) Reddish brown abrasion 0.5 cm X 0.1 cm present on the right upper eyelid's outer half.
3) Reddish brown abrasion measuring 1.4 cm X 0.5 cm surrounded by bluish contusion measuring 3.5 cm X 3.5 cm present over the dorsum of right hand, 2.8 cm below wrist joint.
4) Reddish brown abrasion measuring 0.5 cm X 0.5 cm surrounded by bluish contusion measuring 2 cm X 2 cm on the dorsum of right wrist joint.
5) Bluish contusion measuring 4.2 cm. X 3.6 cm present on the left temporo parietal region of the scalp. On opening of the scalp, the underneath area FIR No. 131/08, PS New Usmanpur Page 27 of 43 has extravasation of blood with fracture of left parieto temporal bones extending to left middle cranial fossa in the base of skull.
28. The opinion regarding cause of death was recorded as shock as a result of anti-mortem head injuries produced by blunt force impact. The time since death was given as one day. PW14 Dr. Sumit Tellewar also deposed that later on he received a request for subsequent opinion alongwith alleged weapon of offence in two parcels, containing one hockey stick and wooden bamboo stick respectively, and he proved his subsequent report Ex. PW14/B. He had opined that the injury number 3 and 5 as mentioned in his report were possible by both weapons whereas injury number 1, 2 and 4 were not possible by both weapons. He proved detailed subsequent opinion Ex. PW14/C. The weapon of offence viz. hockey and danda recovered at the instance of accused Dilawar and Dhara Singh have been connected with the injuries number 3 and 5 which are ante-mortem injuries, as deceased Manish had expired at St. Stephens Hospital on 02.06.2008 and information was received vide DD No. 17A Ex. PW18/PA. It is also pertinent to mention that there is no other evidence to even suggest that the death of Manish was caused on account of any other injury or ailment. Since the doctor has not given any opinion that these injuries were sufficient in ordinary course of nature to cause death of deceased Manish, the accused persons were not charged for offence under section 302 IPC by my learned predecessor. The authority reported as 'Mohanlal Vs. State of Bihar, 2011 (4) RCR 85', relied by Ld. Counsel for complainant, with due respect is not applicable and FIR No. 131/08, PS New Usmanpur Page 28 of 43 does not help the complainant for the said reason.
29. Learned Defence Counsel has submitted that order allowing re-
summoning of PWs after the closure of defence evidence was illegal and court cannot permit the prosecution to fill up the gaps in its case at the fag end of the trial. Reliance has been placed on the authority reported as '1982 (1) CRL. 544'. Ld. Addl. PP has submitted that this submission is not tenable as the PWs were not re-summoned by the prosecution for filling up the gaps but they were summoned for their examination and the order in this regard has not been challenged by the accused persons which has become final. I am in agreement with the submissions made by learned Addl. PP.
30. It was further submitted by learned Defence Counsel that there is manipulation in the date mentioned in the Rukka where the figure 2 has been changed to 3. Learned Addl. PP has submitted that allegation is false as it is not the case of manipulation but only the figure 2 has been written as 3 and no benefit could have been derived by the prosecution by changing the said figure. PW-18 Inspector Sushil Chandra Sharma has denied the suggestion given to him in this regard in his cross-examination. The date of incident was 31.05.2008 and therefore, by writing 2 instead of 3, IO or prosecution would have not got any advantage because when the incident had occurred on 31.05.2008 the complaint and Rukka would have been recorded only on that day and not on any date prior to the said date. Therefore, it cannot be said that there was manipulation and it appears to be a genuine overwriting.
FIR No. 131/08, PS New Usmanpur Page 29 of 4331. Learned Defence counsel further submitted that the prosecution cannot take advantage of weakness of the defence and has to stand on its own legs and court cannot make out a new case for prosecution. He relied on authority reported as 'Bhagirath, Appellant, Vs. State of Madhya Pradesh, Respondent, AIR 1976 SC 975'. He further submitted that where two view are possible, one which favours the accused should be accepted by the court and reliance has placed on the authority reported as 'Diwakar Neelkantha Hegde & Ors. Vs. State of Karnataka, JT 1996 (7) SC 63'.
32. Learned Addl. PP has submitted that prosecution has not tried to take advantage of any weakness of the defence nor the court has made out any new case for prosecution. Therefore, this submission has no relevance. There is no dispute as regards the principle that prosecution cannot take advantage of the weakness of the defence and that where two views are possible, one which favours the accused should be accepted. However, in the present case, neither any new case has been made by the court for the prosecution nor the prosecution is taking any advantage of the weakness of the defence of accused. In my considered view, there is no occasion to say that two views are possible on any issue/charge. Therefore, these submissions are not relevant.
33. As per the reports Ex. PW14/A to Ex. PW14/C, proved on record by PW14 Dr. Sumit Tellewar, injury No. 5 on the body of deceased Manish has been reported as under :-
FIR No. 131/08, PS New Usmanpur Page 30 of 43Blue contusion measuring 4.2 cm X 3.6 cm present on the left temporo parietal region of the scalp. On opening the scalp, the underneath area has extravasation of blood with fracture of left perieto temporal bones extending to left middle cranial fossa in the base of skull.
34. The said injury was possible by both the weapons of offence viz.
Hockey and danda recovered from the accused Dilawar Singh and Dhara Singh. Deceased Manish did not regain consciousness from the time of alleged incident/assault till the occurrence of his death. Injury No. 5, mentioned above in the postmortem report of deceased Manish has been caused on vital part of his body and he subsequently died and only presumption which can be drawn is that injured Manish died on account of said injury No. 5 as it has been caused on the brain (vital part of body) and accordingly, the presumption is being drawn. Accused persons were carrying deadly weapons i.e. hockey and danda and each took part in the commission of alleged offence in furtherance of their common intention with full knowlege that their act was likely to cause death (relied on authority reported as 'State Vs. Saidu Khan, 1951 1 LLR 21').
35. Even in cases, covered by section 304, part II IPC, it is legally permissible to apply section 34 IPC if the facts establish common intention. All the accused persons had acted in concert and injury No. 5 has been caused on head of deceased Manish. Since the accused persons had acted in furtherance of their common intention and attacked deceased Manish causing five injuries on his person including injury No. 5, even though it cannot be said as to who caused injury No. 5 but each of the accused causing FIR No. 131/08, PS New Usmanpur Page 31 of 43 injury had the knowledge that by hitting on the head of deceased Manish by hockey and danda, there was likelihood of his death. Therefore, all the three accused namely Dhara Singh, Dilawar Singh and Brij Mohan are liable to be convicted for commission of offence under section 304, part II IPC read with section 34 IPC and therefore, they are held guilty and are accordingly convicted for the said offence.
However, in view of the discussion in para No. 26, co-accused Atul Kumar @ Babloo is given benefit of doubt and therefore, he is acquitted of the charge under section 304, part II IPC read with section 34 IPC.
36. Accused persons namely Dhara Singh, Dilawar Singh and Brij Mohan have also been charged for commission of offences under section 308/34 IPC for causing injury on the head of injured Mangal Singh. Section 308 IPC has been defined as under :-
"Attempt to commit culpable homicide:- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
37. A person commits the offence under section 308 IPC, if he does an act with such intention or knowledge and under such FIR No. 131/08, PS New Usmanpur Page 32 of 43 circumstances that he, by that act, caused death, he would be guilty of culpable homicide not amounting to murder, he shall be guilty of offence under section 308 IPC. Thus such offence can be said to be made out :-
(i) if the act is done with intention or knowledge referred to in section 300 IPC but under circumstances which would bring the case within one of the exceptions of section 300 IPC, or
(ii) if the act is done with intention or knowledge referred to in section 299 IPC but not falling under clause (2), (3), and (4) of section 300 IPC.
38. As per order on charge dated 05.02.2009, passed by my learned Predecessor, charge for offence under section 308/34 IPC was framed against accused persons keeping in view the fact that injured Mangal Singh (PW1/complainant) had sustained injury on his head which was caused by blunt object. On behalf of accused persons, it was submitted by learned counsel that the injured Mangal was discharged from the hospital after first aid on the same day without admission. The opinion of doctor as per reports and X-ray was given as simple. Therefore, it cannot be said that there was any likelihood of death of Mangal Singh and therefore, at the most, it was a case of commission of offence under section 323 IPC. The submission has been opposed by learned Addl. PP submitting that keeping in view the fact that the injury on person of Mangal was caused on his head, accused persons were charged for commission of offence under section 308/34 IPC and even in case of simple injury, one can be held guilty for commission of offence under section 308 IPC. A perusal of MLC in respect of injured Mangal Singh shows that he sustained following injuries: -
FIR No. 131/08, PS New Usmanpur Page 33 of 43Lacerated wound on head on right parietal region (1X 1cm).
Contusion swelling and tenderness on left knee. Contusion mark on right thigh just above the knee.
However, doctor has given his opinion as simple injury. PW-1 Mangal Singh has deposed that he was parking his motorcycle in his house which was being pushed by Manish from behind and the accused persons started hitting from behind and when he tried to save his son from behind, he was also hit on his head and legs. His younger son Nitish also tried to save Manish but he was also given beatings. PW-1 Mangal Singh alongwith other two injured was taken to GTB hospital by PCR van. PW-5 Nitish deposed that when he and his father tried to save his brother Manish, accused persons started hitting with danda, hockey, iron rod and baseball bat and he also sustained injury on his head. However, MLC of Nitish Ex. PW3/C does not reveal any head injury and as per report of the doctor, opinion regarding injury was simple. Both the said injured namely PW1 Mangal Singh and PW5 Nitish when taken to GTB hospital were conscious and there was no history of vomiting, seizure and ENT bleeding. MLC Ex. PW3/B in respect of injured Mangal Singh was proved by PW3 Dr. S. Kohli who identified the signatures of Dr. Amit Jain who had examined the patient as Dr. Amit Jain had left the services of the hospital. PW3 Dr. S. Kohli has identified the signatures of Dr. Amit Jain and his handwriting on the MLC. He also deposed that Dr. Amit Jain had opined the nature of injury under observation blunt. PW3 Dr. S. Kohli has also proved the MLC Ex. PW3/C in respect of injured Nitish, prepared by Dr. Ashar who had also left the services of the hospital. However, FIR No. 131/08, PS New Usmanpur Page 34 of 43 PW3 could not identify the handwriting and signatures encircled in portion 'X' on Ex. PW3/C, MLC of injured Nitish. PW5 Nitish has admitted that he and his father were discharged from the hospital after their dressing and first aid.
39. From the testimony of PW1 Mangal Singh, it is apparent on record that accused persons had not intended to cause any injury on him but he sustained injury only when he tried to save his son deceased Manish. Accused persons while causing injury had acted in furtherance of their common intention and while giving blows to deceased Manish, they caused the injury to PW1 Mangal and PW5 Nitish both and therefore, in view of testimony of PW1 Mangal Singh and the material placed on record, I am of the considered view that prosecution has been able to prove only the charge under section 323 IPC read with section 34 IPC against all the three accused persons namely Dhara Singh, Dilawar Singh and Brij Mohan. Accordingly, accused persons namely Dhara Singh, Dilawar Singh and Brij Mohan are held guilty and convicted for commission of offence under section 323/34 IPC instead of 308/34 IPC.
40. Accused persons Dhara Singh, Dilawar Singh and Brij Mohan were also charged for commission of offence under section 452/34 IPC. It was submitted by Learned Defence Counsel that prosecution has miserably failed to prove this charge as the testimony of PW1 Mangal Singh has not been corroborated by other witnesses to the effect that accused persons had entered into the house of complainant and caused alleged injuries. There is no evidence that any property/article in the house of FIR No. 131/08, PS New Usmanpur Page 35 of 43 complainant was damaged. The prosecution has failed to prove on record that any blood stains were collected by the IO from inside the house of the complainant and therefore, the charge has not been proved. Learned Addl. PP submitted that testimony of PW1 Mangal Singh has been corroborated by PW5 Nitish and from their testimonies it is established on record that accused persons after having prepared for causing hurt/assault had committed house tress-pass.
41. A perusal of the complaint/statement Ex. PW1/A shows that complainant Mangal Singh has nowhere stated that accused persons had committed house tress-pass. As per complaint Ex. PW1/A, the complainant and his two sons namely Manish and Nitish were sitting outside his house where the accused persons reached with weapons and started hitting Manish and when the complainant and his other son Nitish tried to save Manish, they were also given beatings by the accused persons namely Dilawar Singh, Brij Mohan and Dhara Singh. However, in the court, complainant/PW1 Mangal Singh has deposed that while he was parking motorcycle in his house and Manish was pushing the same from behind, accused persons came with weapons and started hitting Manish from behind and when he tried to save Manish he and his other son Nitish were also given beatings. He further deposed that accused persons entered the house and pulled Manish outside the house and started giving beatings to him. He was confronted with the statement Ex.PW1/A wherein it was not so recorded that accused persons came to his house while he was parking his motorcycle in his house and Manish was pushing the same from behind.
FIR No. 131/08, PS New Usmanpur Page 36 of 4342. PW5 Nitish in his cross-examination has stated that accused persons had come from the right side of their house. He voluntarily added that all the four accused persons came together and fled in the same direction after the occurrence. PW2 Raju Chandel is the real nephew of PW1 Mangal Singh and PW4 Satbir is his real brother. PW2 Raju Chandel has deposed that he was working at his house on computer when he heard the noise of quarrel and also heard the sound of bachao-bachao and screaming. As per PW2 Raju Chandel, his house is on first floor from where he went out to see from the grill and when he came downstairs, he saw the alleged incident. In cross-examination, he has admitted that inside of the house of Mangal Singh was not visible from the place where the computer was lying nor any person standing in the street was visible from there. PW-2 Raju Chandel deposed that he had seen Mangal outside his house before the incident when he (PW-2) had come from outside and went inside his house. He also admitted that Mangal has not put his cot outside the house in the street for the purpose of sitting. According to PW2, incident had occurred on the road in front of his house and therefore, this witness has not corroborated the testimony of PW1 that the accused persons had committed tress- pass in the house of complainant Mangal Singh.
PW4 Satbir deposed that when he reached, the quarrel was going on in the street. According to him, wife and daughter of Mangal were also present there. This witness has also not corroborated the testimony of PW1 Mangal Singh to the extent that accused persons had committed any house tress-pass. If the wife and daughter of the complainant were also present in the FIR No. 131/08, PS New Usmanpur Page 37 of 43 house and the alleged incident had occurred inside the house of complainant Mangal Singh then in order to save Manish, it was quite likely that they would also have sustained some injury but wife and daughter of complainant Mangal Singh have not even been cited as witness. As per the site plan Ex. PW17/A and Ex. PW13/B, the place of occurrence has been shown at point Mark A which is the place outside the house. PW13 ASI Ram Kishore in his cross-examination has admitted that he had not seen any blood inside the house of Mangal Singh. He had also not seen any blood stains in the verandah of complainant. He does not even remember whether he had seen the motorcycle of the complainant parked inside the house. PW17 SI Mukesh Kumar Jain, Draftsman has proved the scaled site plan Ex. PW17/A and deposed that he inspected the spot i.e. Gali No. 9, Ambedkar Basti, Ghonda, Delhi. His testimony has remained uncontroverted and unchallenged. From the site plan Ex. PW17/A, it is established on record that place of occurrence is at point Mark A which is gali and PW17 has also stated the place of occurrence as gali no. 9 and therefore, in my considered view, prosecution has failed to prove on record that the accused persons had committed house tress-pass, as such, charge for commission of offence under section 452/34 IPC has not been proved by the prosecution against the accused persons beyond reasonable doubt. Therefore, all the three accused persons namely Dhara Singh, Dilawar Singh and Brij Mohan are acquitted of the charge for commission of offence under section 452/34 IPC.
43. In view of the above discussion, accused Atul @ Babloo is given FIR No. 131/08, PS New Usmanpur Page 38 of 43 doubt of benefit and is acquitted for all the charges. He is directed to furnish Personal Bond in sum of Rs. 10,000/- as per provisions of section 437 Cr.PC, within a week.
The other three accused persons namely Dhara Singh, Dilawar Singh and Brij Mohan are convicted for the offences under section 304, part II IPC read with section 34 IPC and under section 323 IPC read with section 34 IPC. However, all the said three accused persons are acquitted of the charges under section 452 IPC read with 34 IPC.
44. Let the convicts be heard on the point of sentence separately.
Announced in the open court (T.S. KASHYAP)
today i.e on 08th November, 2011 ASJ-04/NORTH-EAST/DELHI
FIR No. 131/08, PS New Usmanpur Page 39 of 43
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-04, NORTH-EAST DISTRICT KARKARDOOMA COURTS, DELHI State Vs. : Dhara Singh etc. FIR No. : 131/2008 Under Section : 304/452/506/34 IPC Police Station : New Usmanpur ORDER ON SENTENCE
1. Vide my separate judgment dated 08.11.2012, three accused persons namely Dhara Singh, Dilawar Singh and Brij Mohan were convicted for the offences under section 304, part II IPC read with section 34 IPC and under section 323 IPC read with section 34 IPC. However, all the said three accused persons were acquitted of the charges under section 452 IPC read with 34 IPC whereas accused Atul @ Babloo was acquitted for all the charges.
2. I have heard the submissions on the point of sentence from both sides.
3. On behalf of convict Dhara Singh, Sh. A.K. Tiwari, Advocate (Amicus Curiae) has submitted that convict Dhara Singh is aged about 60 years having responsibility to look after his family consisting of one unmarried son, three daughters and ailing mother. The wife of the convict has expired. He was arrested on 03.06.2008 and since then he is in judicial custody and during his custody period, his conduct has been good without any complaint from jail authorities. He has no previous criminal background. The convict Dhara Singh has remained in jail for about 4 years, 5 months and 16 days and therefore, it is prayed that he be sentenced for the period already undergone in jail or he be FIR No. 131/08, PS New Usmanpur Page 40 of 43 released on probation by giving the benefit of Probation of Offenders Act.
4. On behalf of convicts Dilawar Singh and Brij Mohan, Sh. Mohd.
Irfan Advocate on behalf of Sh. B.K. Sharma Advocate has submitted that convict Brij Mohan is of 50 years of age having responsibility to look after his family consisting of four children out of which his elder son (Dilawar Singh, who is also convict herein) is in JC since 03.06.2008 and has one more unmarried son and two unmarried daughters. He is the only bread earner of his family. He has spent about 4½ years in JC and during his custody period, his conduct was good.
It is submitted that convict Dilawar Singh is a young boy of 23-24 years of age. He has no previous criminal background and it is prayed that both the convict Brij Mohan and Dilawar Singh be sentenced for the period already undergone in jail or be released on probation by giving the benefit of Probation of Offenders Act.
5. Ld. Counsel for the complainant and Ld. Addl. PP however, have submitted that in this case the son of the complainant was brutally murdered by the convicts who had earlier also threatened of dire consequences and have ultimately killed the deceased Manish and they had also caused injuries on the person of complainant Mangal and his other son Nitish. They do not deserve any sympathy and should not be given benefit of probation, rather it is case in which maximum punishment be awarded.
6. A perusal of section 360 Cr.PC shows that this section applies to two classes viz. (1) women and all persons under the age of 21 years and (2) persons over that age. In the former case the accused may be treated as a first offender, if convicted of an offence not punishable with death or imprisonment for life and in FIR No. 131/08, PS New Usmanpur Page 41 of 43 the later case if convicted of an offence punishable with imprisonment for seven years or less. There is another class (3) which embraces persons convicted of (a) the offences specified in Sub-section (3) under the Penal Code or (b) other offences under the same Code punishable with not more than two years' imprisonment or punishable with fine only, who may be released 'after due admonition'. The word 'trivial' occurs only in Sub-section (3).
7. In order to give jurisdiction, two conditions must co-exist; (i) no previous conviction is proved, and (ii) the offence must be of the character specified in the section.
8. As per record, the age of convict Dhara Singh was 51 years and that of convict Dilawar Singh was 21 years and of convict Brij Mohan was 40 years on the date of commission of offence. The punishment for offence under section 304 Part-II IPC may extend to imprisonment for a period of ten years or with fine or with both and therefore, in view of the said provision, none of the three convicts is entitled for the benefit of probation. In authority reported as 'Prabhu Vs. State of Rajasthan, 1994 Supp (3) SCC 320', the accused was found guilty for offence under section 304 Part-II IPC having inflicted serious injury on the vital part of the deceased and was held to be not entitled for the benefit under section 360 Cr.PC.
In authority reported as 'Sirish Chandra Paul Vs. State of Tripura, 1997, Cri LJ 2617, High Court of Gauhati (Agartala Bench)', it was held that the convict being above 21 years of age was convicted for offence under section 307 IPC which is punishable for imprisonment of life or imprisonment of 10 years, he was not entitled for the benefit of probation.
FIR No. 131/08, PS New Usmanpur Page 42 of 439. In the present case also, all the three convicts are above the age of 21 years and therefore, not entitled for the benefit of probation. On account of injury caused to the deceased Manish, a precious life has been extinguished. They also caused injuries to Mangal Singh and Nitish.
In case a more lenient view is taken while awarding the sentence, it will give wrong signal to the society and therefore, keeping in view the family circumstances of the convicts and balancing mitigating and aggravating circumstances, in my considered view, the interest of justice shall be met if the all the three convicts namely Dhara Singh, Dilawar Singh and Brij Mohan are sentenced to undergo rigorous imprisonment (RI) for a period of seven years and to pay a fine of Rs. 5,000/- each, in default of payment of fine to undergo simple imprisonment (SI) for three months each for commission of offence under section 304 part-II IPC read with section 34 IPC and to undergo RI for a period of six months for commission of offence under section 323 IPC. The sentences shall run one after the other.
10. Period of detention already undergone by all above named three convicts during the investigation, inquiry or trial of this case, shall be set off as per provisions of section 428 Cr.PC. Case property be destroyed after the period of appeal is over. Copy of judgment and this 'order on sentence' be given to the convicts free of cost. Case file be consigned to Record Room.
Announced in the open court (T.S. KASHYAP)
today i.e on November 19th, 2012 ASJ-04/NORTH-EAST/DELHI
FIR No. 131/08, PS New Usmanpur Page 43 of 43