Delhi District Court
State vs . Mohit on 23 May, 2023
IN THE COURT OF ARUN SUKHIJA: ADDL. SESSIONS
JUDGE-03: EAST DISTRICT: KKD COURTS: DELHI.
SC No. 3202/2019
State Vs. Mohit
S/o Sh. Shaym Sunder @ Shyam Kumar
@ Shyam Kumar
R/o 11A/10, Trilokpuri, Delhi
FIR No. : 242/2019
Under Section : 302 IPC
Police Station : Kalyanpuri
Chargesheet Filed On : 05.08.2019
Chargesheet Allocated On : 29.08.2019
Presided Over this Court on : 22.07.2021
Judgment Reserved On : 19.05.2023
Judgment Announced On : 23.05.2023
::- J U D G M E N T -::
1.Succinctly, necessary facts for disposal of the present case, are that DD No. 59-A dated 22.04.2019 has been lodged with PS Trilokpuri. On it, SI Sandeep Rawal reached 11- 12 Block, Trilokpuri, where, it came to notice that injured had already been rushed to LBS Hospital. Meanwhile, Constable Ravi also reached the spot and accused Mohit was also found there. Accused Mohit was left in the custody of Constable Ravi at that place and SI left for hospital, wherefrom, he obtained the MLC of injured. Complainant/injured made statement to the police inter alia alleging therein that on 22.04.2019, a dispute was arisen between Gulshan, his (complainant) cousin and Mohit and matter was intervened by him (complainant) and Mohit left that place at that time. It is further mentioned in the said statement that on the same date, at about 5 p.m., while he (complainant) was present at 12 FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 1 of 30 Block, Trilokpuri with Karan, his another cousin, to go to the house of his Mausi (maternal aunt), at that time, Mohit met them and even accompanied them to some distance and suddenly attacked him with knife on his back, which caused injuries on his waist towards right hand side and accused Mohit was apprehended at that place itself.
2. On the basis of said statement of the complainant, endorsement for offence punishable under Section 324 of Indian Penal Code, 1860 (in short "IPC") was made. Since, at that time, assailant claimed juvenility, he was apprehended, and was relieved at that time on the undertaking of his father.
3. It is further case of the prosecution that on 04.05.2019 at about 5 a.m., an information has been received from LNJP Hospital qua death of injured and considering the circumstances, present case bearing FIR No. 242/2019 P.S. Trilokpuri was registered for the offence punishable under Section 302 of Indian Penal Code,1860 (in short "IPC"). Investigations were entrusted to Inspector. Body was sent to mortuary for its postmortem. CCL was again apprehended and his child version was recorded and on his production before JJB Vishwas Nagar, he was sent to Observation Home. Opinion about cause of death was obtained. On verification of documents qua age of culprit, he was found major and then, case was sent to the Court of Ld. CMM. After seeking permission from the Court of ld. CMM on 09.07.2018, accused Mohit was arrested as an accused. During investigation, accused made disclosure statement, which was also recorded and thereafter other proceedings were also conducted. On concluding the FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 2 of 30 investigations of this case, present charge sheet was filed before the Court of Learned Metropolitan Magistrate to face trial for the offences punishable under Section 302 IPC.
4. After compliance of provisions of Section 207 of Code of Criminal Procedure, 1973 (in short "CrPC") by the Court of ld. MM, case was committed to the Court of Sessions as Section 302 IPC, involved in the present matter, is exclusively triable by it.
5. Vide order dated 13.09.2019 passed by ld. predecessor of this Court, charge under Section 302 IPC was framed against the accused, to which, accused pleaded not guilty and claimed trial.
6. Total fifteen witnesses were produced by prosecution in order to prove its case. These witnesses are as follows:-
(a) PW-1 Santu; PW-2 Kuldeep and PW-3 Karan are material witnesses of the incident.
(b) PW-4 Constable Ravi is a witness, who reached the place of incident on the day of incident itself and is a witness to the apprehension of accused. This witness proved memos Ex.PW4/A to C to that aspect.
(c) PW-5 Const. Maha Singh is witness, who deposed that on 05.05.2019, after postmortem, sealed parcels were handed-over to him by the doctor and then, he further handed-over those sealed parcels to IO, which were seized by the IO vide memo Ex.PW5/A.
(d) PW-6 W/HC Omwati proved copy of FIR as Ex.PW6/B.
(e) PW-7 Dr. Jitendera conducted postmortem on the FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 3 of 30 body of deceased and proved report as Ex.PW7/A.
(f) PW-8 Constable Om Prakash, a PCR official on 22.04.2019, proved the information received to PHQ as Ex.PW8/A.
(g) PW-9 Head Constable Abdul Karim proved DD No. 17-A, dated 04.05.2019 as Ex.PW9/A.
(h) PW-10 Head Constable Binu proved DDs No. 59-A and 131-A - both dated 22.04.2019 - lodged with P.S. Kalyanpuri as Exs.PW10/A & B respectively.
(i) PW-11 Dr. Arti proved the MLC of injured as Ex.PW11/A.
(j) PW-12 Head Constable Joginder Kumar joined the investigation of this case on 06.05.2019 with Inspector Rajiv Ranjan and proved memos Exs.PW12/A & B about apprehension of assailant.
(k) PW-13 SI Krishna Kumar deposed that on being declared major, accused was produced before the Court of ld. MM concerned and as per the directions of the IO, accused was arrested vide memo Ex.PW13/A and further proved disclosure statement Ex.PW13/B.
(l) PW-14 SI Sandeep Rawal is initial IO of the case and he recorded the statement of injured and proved the same as Ex.PW14/A. He apprehended assailant, who claimed juvenility and proved the memos to that aspect. This witness further deposed that on 04.05.2019, on receipt of information about the death of injured, vide DD Ex.PW14/D, he put his endorsement Ex.PW14/E and got the case registered. During further investigations, as per the FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 4 of 30 directions of IO, this witness got postmortem conducted on the body of the deceased and proved documents.
(m) PW-15 Inspector Rajeev Ranjan is the Investigating Officer of the case and proved the memos as Exs.PW15/A & B with other memos prepared in the present matter.
7. During prosecution evidence, accused made statement under Section 294 CrPC admitting all contents of FSL report as Ex.CX without prejudice to his defence. Detailed testimony of the witnesses concerned will be discussed at relevant time of judgment.
8. All the incriminating evidence, which has come on record, has been put to the accused under Section 313 CrPC. Accused denied all the incriminating evidence put to him. The accused further pleaded that injured was an active member of Anar Gang and said Gang used to extort money from the hawkers of local market, where he (accused) also used to put stall for selling cosmetics. On the day of incident, members of said gang were taking money from the hawkers present in the market and when they came to him (accused), he refused to pay the said amount, on which said persons left his stall after slapping him twice- thrice. Accused further pleaded that later on, he (accused) came to know that one of them has been attacked by someone and then, injured came to his stall and pressurized him (accused) to reveal the name of the person, who attacked him (injured), on which, he (accused) replied in negative stating that he did not know who had caused injuries to him (injured). Accused further FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 5 of 30 pleaded that on this reply, injured threatened that either he should reveal the name of the assailant, otherwise, he would name him (accused) for the injuries sustained by him. Accused further pleaded that in fact, incident occurred in front of shop of one Master B.S.Tailor, with whom his (accused) father namely Shyam Sunder was and still working as a tailor and that injured firstly met him (his father) and also asked the name of the assailant and when he also feigned his ignorance stating that he had not seen the assailant or incident, then, injured also threatened him that he would implicate his son i.e. accused and then, he was implicated falsely in the present matter.
9. Accused opted to lead Defence Evidence and appeared himself as DW-1 and produced DW-2 Sh. Shyam Sunder, his father, in his defence.
10. Accused, in his statement, recorded under Sec. 315 CrPC, toed the lines, as stated by him during his statement recorded under Sec. 313 CrPC.
11. DW-2 Shyam Sunder also stated on the same lines as of DW-1.
12. I have heard the submissions of ld. Addl. PP for the State and ld. defence counsel. I have also perused the material available on record with the law on the issues in question.
13. Ld. Addl. P.P. for the State argued that the prosecution has proved its case beyond all reasonable doubts by examining the prosecution witnesses, who, in clear and unequivocal terms stated that crime in the present matter has been committed and accused is responsible for the crime in question. One of the contentions of ld. Addl. PP is also that statement of injured recorded on the day of incident itself FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 6 of 30 and even proved as Ex.PW14/A be treated as dying declaration and as per the post-mortem report, death of the injured occurred only on account of injuries sustained by him. It is case, which falls within the ambit of Section 302 IPC and as such, accused is to be held guilty for the offence punishable under Section 302 IPC.
14. On merits, it is also submitted by ld. Addl. PP for the State that no explanation has been furnished by accused for his false implication at the hands of the injured or any other material public witnesses. Ld. Addl. PP for the State also drew the attention of the Court towards the fact that though, accused himself appeared in the dock as a witness under Section 315 CrPC and also produced DW-2, his father but very strangely, the defence put forthwith by accused only saw the light of the day only at the stage of statement recorded under Section 313 CrPC and no such suggestion was ever given to any prosecution witness, what to say any material witness and all this shows that defence is only an afterthought and has no value in the eyes of law.
15. Besides the above, it is argued by ld. Addl. PP for the State that accused was neither having inimical nor strained relations with any of the material public witnesses PW-1 to PW-3 and as such, accused has failed to furnish any reason for his implication falsely at the hands of any material witness and also at the hands of the police officials. Moreover, ld. Addl. PP for the State submitted that as per the prosecution case, incident occurred only on account of the incident earlier happened qua intervention of the deceased between accused and Gulshan, cousin of FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 7 of 30 deceased but very interestingly, accused is silent on this aspect that whether any such incident occurred or not and all this put stamps on the prosecution case. Ld. Addl. PP for the State further submitted that the complainant/injured will be the most interested person to see the actual culprit(s) behind the bars and as such, ld. Addl. PP for the State prayed for conviction to the accused, for the offence, for which, he has been charged with. Last but not the least, it was also submitted that absence of any complaint from the side of accused despite apprehension/arrest of accused at three times, shows that accused committed the offence, for which, he has been charged with.
16. Per contra, ld. defence counsel submitted that first of all, defence witnesses be treated at par with the prosecution witnesses and as such, accused is entitled for acquittal for the offence, for which, he has been charged with.
17. Besides the above, ld. defence counsel submitted that there are material contradictions and improvements in the statements of prosecution witnesses further stating that benefit of the same must be given to the accused. Ld. defence counsel has pointed-out some contradictions between PW1 to PW3, which are as follows:-
S.No. PW-1 Santu PW-2 Kuldeep
1. PW-1 stated in his PW-2 deposed in his
examination-in-chief cross-examination that
that "my mother-in-law "the 100 number call was
called at 100 number." made by Jyoti"
2. PW-1 deposed in her PW-3 deposed in his
examination-in-chief cross-examination that "
that at "PCR came at After the incident, Santu
the spot and took the (PW-1) met me in the
injured Akash to LBS hospital on the same day
Hospital. Thereafter I after 5 minutes of our
left for my house. reaching and remained
FIR No. 242/2019
PS Kalyanpuri State Vs. Mohit Page No.: 8 of 30
there upto 07.00 pm."
PW-1 again stated in his
cross-examination that He further stated that
"On the day of incident, "On the day of incident,
I did not visit the PS as Santu met me first time
well as the Hospital." in LBS Hospital after the
incident.
Neither the PW-1 stated
about the presence of
PW-3 at the place of
incident nor the PW-3
stated about the
presence of PW-1 at the
place of incident and to
just be an eye witness,
they both claim that
they both are the eye
witness and they both
are present at the spot at
the time of incident.
This clearly shows that
both the witness were
not present at the spot
and they both are
planted witnesses.
3. PW-1 stated in his PW-3 deposed in his
cross-examination that cross-examination that
"I never met with Karan "When Santu met in the
(PW-3) in the Hospital LBS Hospital first time, I
from 22.04.19 to touched his feet as a
04.05.19." honour.
Some contradictions in the evidence/statement of PW-2 & 3 are also pointed-out by Ld. defence counsel which are as follows:-
S. No. PW-2 Kuldeep PW-3 Karan
1. PW-2 deposed in her PW-1 deposed in her
cross-examination cross-examination that "At
that "I have received the time of incident, I
the intimation about raised alarm in loud voice
the incident at about and then Bunty, brother of
7-7.15 pm through Akash immediately
FIR No. 242/2019
PS Kalyanpuri State Vs. Mohit Page No.: 9 of 30
my wife on phone on reached there. My bua
22.04.2019 at that Smt. Suresh and Jyoti also
time I was returning followed Bunty. My fufa
from my duty on my also came there."
scooty and was
present near Kotla When the PW-2 himself
Village and my wife deposed that he was not
called me at LBS present at the spot at the
Hospital. I reached time of incident, the PW-3,
LBS Hospital and just to show his presence,
remained there for had falsely deposed that
about 2-2.30 hours." PW-2 was also present,
which again clearly proves
that PW-3 is a planted
witness.
Some contradictions in the evidence/statement of PW-1 & 2 are also pointed-out by Ld. defence counsel which are as follows:
S. No. PW-1 Santu PW-2 Kuldeep
1. The PW-1 deposed in The PW-2 deposed in his
examination-in-chief cross-examination that "I
that "On 05.05.2019, visited to the PS 4-5 times
I joined the with my son in law namely
investigation with the Santu and he always gave
IO and then I statement to IO regarding
alongwith IO and the incident and IO
other family recorded his statement.
members reached at
Mortuary of LNJP PW-1 had never mention
where I identified the either in chief or in cross-
dead body of Aakash examination that he had
and Police recorded ever visited the PS ever or
my statement his statement has been
regarding recorded ever by the police
identification of dead except at the time of
body..." identification of dead
body. Even there is no
He deposed in his statement of PW-1 u/s 161 cross-examination Cr. PC on record. So, it that "No statement of proves that PW-1 had not mine was recorded seen the incident due to FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 10 of 30 by the police prior to same, he had never told the statement anything to police regarding regarding the incident ever identification of dead and he is only a planted body. witness.
18. It is also argued by ld. counsel for accused that as per the above paras, it is clear that the witnesses tried their best to manipulate the Court and deposed a false story, which didn't match with each other of them, even they had changed their versions on every point and they just wanted to see the innocent accused behind the bars.
19. Ld. defence counsel has also argued that non-examination of any independent public witness i.e. other than witnesses from family/relatives of the injured/deceased from the al- leged spot is another major dent on the prosecution story. Ld. defence counsel also submitted that besides the above, it is the primary duty of the prosecution to prove its case beyond all reasonable doubts and has to stand on its own legs and as prosecution has failed to do so, as such, ac- cused is entitled for the benefit of doubt and prayed for ac- quittal to the accused.
20. This Court has carefully gone through the entire material on record and also considered the rival submissions of the parties in the light of the law laid down on the issue in question after due care.
21. It is undisputed fact that in the present matter, injured died on account of the injuries sustained by him.
22. One of the contentions raised by ld. defence counsel was that defence witnesses be treated at par with prosecution witnesses and as such, testimony of defence witnesses be FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 11 of 30 treated as gospel truth. To that aspect, in the case reported as 2002 (1) JCC 385 (Supreme Court of India) State of Haryana Vs. Ram Singh, it was observed that the evi- dence tendered by defence cannot always be termed to be a tainted one and they are entitled to equal treatment and equal respect as that of the prosecution and that the issue of credibility and the trustworthiness ought also to be at- tributed to be at par with that of the prosecution witnesses. Same view is also observed in cases reported as Anil Sharma & Ors. Vs. State of Jharkhand [2004 (3) RCR (Cri) 774]; Ajay Goswami Vs. State 2011 (2) 1279 and Dudh Nath Pandey Vs. State of UP, AIR 1981 Supreme Court 911. But it also must be kept in mind that evidence of defence must be credible and trustworthy.
23. It is to be seen that defence story adduced by accused has seen the light of the day for the first time during the state- ment recorded under Sec. 313 CrPC. Prior to that, no such defence was ever put to any of the prosecution witnesses including material public witnesses of this case. Apart from that, if defence evidence is taken as gospel truth, for the sake of arguments, even then, it is indigestible to im- plicate the accused falsely in the present case without any reason. Defence of the accused was also that there are CCTV cameras at that place, as claimed by accused, but non-production of any such record also goes against him. Rather, the injured would be the most interested person to see the actual culprit behind the bars. Furthermore, the ac- cused was apprehended immediately within few hours on the day of incident but no complaint was made by him to any agency. The accused has claimed that injured/deceased FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 12 of 30 was part of Anar Gang but failed to produce even a single FIR in which injured/deceased was involved. Considering overall facts and circumstances, the defence raised by the accused does not inspire any confidence.
24. This Court will now examine the evidentiary value of the statement made by the injured to the police on the day of incident and whether the same can be treated as dying dec- laration or not.
25. Whenever any offence has been committed, there are al-
ways the two persons, who knew what actually happened i.e. the Accused, who committed the offence and the other one is Victim, with whom offence had been committed.
26. Words "dying declaration" means a statement written or verbal of relevant facts made by a person who is dead. It is dealt under clause (1) of Section 32 of the Indian Evidence Act, 1872. Generally, it relates to the cause of death of declarant. Dying declaration can be proved by the person, who records it. But there is a condition, when the state- ment made by the person to be treated as true evidence in spite of the fact that he made the statement in his own favour and hardly any doubt behind the reason for that statement. That condition is Dying Declaration.
27. The person, who is conscious of Compos Mentis and knows that death is about to happen, can make a declara- tion and state the cause of his death and that statement will be Admissible and treated as Evidence in the Court. Decla- ration made by the deceased person can be in oral, written and by conduct. The word "Dying Declaration" explains itself.
FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 13 of 3028. At the time of giving a declaration, the person, who's mak-
ing the statement, must be in a fit state of mind. If the Court has the slightest doubt about the mental soundness of the maker of dying declaration, it is unsafe and unfair to rely on such a statement.
29. Though, not in the present matter but it is also to be kept in mind that the statement made by the deceased person will be treated as Evidence and Admissible in a Court of law and the reason behind this can be followed by Latin maxim Nemo Mariturus Presumuntur Mentri which means that "Man Will Not Meet His Maker with Lying On His Mouth. More precisely, in our Indian law, it is the fact that the dying man can never lie or Truth sits on the lips of dy- ing man. Hence, the Dying Declaration is Admissible and considered as Evidence in Court of law and can be used as a weapon to punish the culprit.
30. Under English Law, the victim should not be under any ex-
pectation of death. Evidence Act has taken this law from English law. Even, if the statement has been made when no cause of death had arisen, then also, the statement will be relevant. It is not important at all that the statement recorded should be just before the death of the victim.
31. In the case titled as Munna Raja & Anr. Vs. State of M.P., (1976) 3 SCC 104, Hon'ble Supreme Court of India has held in paras no.5 and 6 as follows:-
"5. In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dying declaration is Ex. P-14, being the first information report which was lodged by the deceased at the police station. The learned Sessions Judge FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 14 of 30 probably assumed that since the statement was recorded as a first information report, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death.
6. The High Court has held that these statements are essentially true and do not suffer from any infirmity. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated: [see Khushal Rao v. State of Bombay AIR 1958 SC 22]. The High Court, it is true, has held that the evidence of the two eye witnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration."
32. It is apposite to refer relevant portion of paras No.15, 16, 18 and 19 in the case titled as Dharampal Vs. State of U.P., (2008) 17 SCC 337 passed by the Hon'ble Apex Court, which is as follows:-
"15......After a thorough appreciation of the evidence on record, the High Court recorded the following findings: -
1XXXXX 2XXXXX 3XXXXX 4XXXXX 5XXXXX 6XXXXX
7. The report was admissible under Section 32 of the Evidence Act as a dying declaration of the deceased Rajpal. The names of the accused and the important features of the case had been mentioned therein. The report contained a truthful version of the incident as narrated by Rajpal as to the cause of his death......
16. The learned Counsel for the appellants further argued before us that the alleged dying declaration which was given the shape of an FIR could not be made the basis of conviction when the original document signed by the deceased was not FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 15 of 30 brought on record. The learned counsel for the appellants tried to prove before us that the deceased was not in a position to speak and which becomes apparent from the testimony of his father. However, it would not be correct to say so. The evidence of PW 7 Dr. R.P. Goel shows that the condition of the deceased was good and that he was in a position to speak. It would not be appropriate for us to read between the lines by giving unnecessary meanings to the testimony of Raghu. It cannot be left out of sight that Raghu also said that the deceased dictated the FIR to the police. In any view of the matter, the report of occurrence was dictated by the deceased himself and the same was read over to him after which he had put his thumb impression on the same. This report is admissible under Section 32 of the Evidence Act as a dying declaration. It is true that the original document signed by the deceased was not brought on record, but in our view, the FIR has rightly been admitted as a dying declaration. There appears no reason for the police to falsely implicate any one of the accused inasmuch as, initially, the report dictated by the deceased was taken down as a non- cognizable report under Section 323 of the IPC. If the police were to implicate the accused, they would have not taken down the report as a non-cognizable report in the very first place itself.
18. The principle on which a dying declaration is admissible in evidence is indicated in the Maxim "Nemo Moriturus Praesumitur Mentire", which means that a man will not meet his maker with a lie in his mouth. Thus it is clear that a dying declaration may be relating to :-
a) as to the cause of death of the deceased
b) as to "any of the circumstances of the transaction"
which resulted in the death of the deceased.
19. It is also clear that it is not necessary that the declarant should be under expectation of death at the time of making the statement."
33. The PW14 SI Sandeep Rawal has submitted that on 22.04.2019, he recorded the statement of injured Akash in the LBS Hospital and it bears his signatures on both pages of the said statement. The said factum was never controverted during the cross-examination of the said witness. PW14 also deposed that he recorded statement of one Karan i.e. eye witness. During cross-examination, this witness has deposed that he reached LBS Hospital at around 06.45 p.m. He further submitted that he remained FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 16 of 30 in the hospital at about 2-2.30 hours and during the said time, the injured was conscious and fit for statement. He reached back to the spot with injured. In the said statement, it is categorically stated by the injured that on 22.04.2019, a dispute has arisen between Gulshan, his (complainant) cousin and Mohit and the matter was inter- vened by him (complainant) and Mohit left that place at that time. It is further mentioned in the said statement that on the same date at about 5 p.m., while, he (complainant) was present at 12 Block, Trilokpuri with Karan, his an- other cousin, to go to the house of his Mausi (maternal aunt), at that time, Mohit met them and even accompanied them to some distance and suddenly attacked him with knife on his back, which caused injuries on his waist to- wards right hand side and accused Mohit was apprehended at that place itself.
34. PW14 SI Sandeep has also deposed that after receipt of the DD No.59A, he reached the placed of incident and Consta- ble Ravi also reached at that place and they met accused Mohit and it came to their knowledge that Mohit had com- mitted the crime and after leaving Constable Ravi at the place of incident with the custody of accused Mohit, he left for LBS Hospital and during cross-examination he has deposed that he reached the place of incident at about 6.00 p.m.
35. At the first instance, the injured/deceased has categorically stated the presence of eye witness Karan and PW14 SI Sandeep has also deposed that he recorded the statement of eye witness Karan on the day of incident i.e. on 22.04.2019. The said statement is also on record. Even, af-
FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 17 of 30ter discharge of the injured/deceased from LBS Hospital, site plan was also prepared by PW14 on 22.04.2019. The GD No.131A was recorded at about 23.43.44 hours on 22.04.2019 and which mentioned the entire facts of case till the said period including the statement given by the in- jured and at that time, it was found that case under Section 324 IPC is made out. The said GD No.131A is proved as Exhibit PW10/B. Very interestingly, during cross-examina- tion of the IO, suggestion was made to the said witness that said DD entry is ante dated. No reason has been fur- nished for making such DD entry with ante dated/ante timed. It is also to be kept in mind that these are only sug- gestions made for accused during earlier days, and now, mostly P.S. and all institutions are computerized and it is not possible to give incorrect time.
36. Even, the apprehension Memo Exhibit PW4/A of accused Mohit, Personal Search Memo, Child Version of Mohit are of dated 22.04.2019 and they bear the signatures of in- jured/deceased as a witness. However, strangely enough, no FIR was recorded on the said date and the FIR was recorded only on 04.05.2019, after the death of the injured.
37. In the light of the aforesaid dictums of Hon'ble Apex Court, this Court is of the considered opinion that though, the FIR is not recorded immediately in the present case, still, the original statement of injured placed on the record in this case and proved as Exhibit PW14/A, which was recorded within few hours of the incident and which is cat- egorically mentioned in GD No.131A dated 22.04.2019, is a dying declaration of the injured/deceased and the same can be read in evidence.
FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 18 of 3038. Now, coming to the testimony of eye witness Karan. It is argued by ld. defence counsel that the said witness i.e. Karan is an interested witness as being relative to the de- ceased and as such, his testimony cannot be relied upon. He further argued that Karan was planted witness.
39. In catena of judgments, including the case reported as, the legal position was succinctly encapsulated in Raju Vs. State of Tamil Nadu MANU/SC/1019/2012 : AIR 2013 SC 983, wherein, Hon'ble Apex Court observed as under:-
" ..... we are concerned with four categories of witnesses-a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required."
Thus, the legal position, which emerges from the decisions of Hon'ble Supreme Court cited above is that in evaluating the evidence of an interested witness, the Court must scrutinize their evidence carefully so as to ascertain whether it has the ring of truth. While their testimony is not to be viewed with suspicion merely because of their relationship with the victim, the Court must be satisfied that it is consistent and cogent. Same observations have also been held stating that testimony of interested witnesses cannot be discarded and for this, Court is also taking support of case reported as - Yogesh Singh Vs. FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 19 of 30 Mahabeer Singh & Ors., AIR 2016 SC 516.
40. PW3 Karan, in unequivocal terms, in his examination-in-
chief, has deposed that when he reached at the Chowk 11- 12 Block, Trilokpuri, accused Mohit came from behind and gave a stab blow on the back of injured/deceased Aakash. He raised alarm and then, crowd gathered there and then, he immediately apprehended accused at the spot, whose name he came to know later on as Mohit.
41. It is argued by Ld. Defence counsel argued and pointed-
out various contradictions between him and other PWs specifically PW3.
42. Considering the overall testimony of PW1 and the contradictions as pointed-out by Ld. Defence Counsel, this Court has some doubts about the presence of PW1 as an eye witness but this Court has no doubt about the presence of PW3 on the day of incident along with the deceased/injured. First of all, the statement of Karan was recorded by the police on same date i.e. 22.04.2019 and as per statement of the injured/deceased Exhibit PW14/A, the name of his cousin Karan was specifically mentioned as eye witness to the said incident as he was accompanying the said witness. PW14 SI Sandeep has categorically mentioned that he has recorded the statement of Karan on the day of incident on 22.04.2019.
43. As far as contradictions, in the case reported as State of Rajasthan Vs. Smt. Kalki, 1981 SCC(2) 752, Honb'ble Apex Court has observed as under:-
".....In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 20 of 30 and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
44. In another case reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra (Crl. A. 25- 26/2000), the Hon'ble Apex Court held as under:-
"Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements if truthful witnesses as memory sometimes plays false and sense of observations differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW-2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness.
XXXX There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
45. In view of overall facts and circumstances of the case and after carefully scrutinizing the testimony of PW3 and aforesaid dictums, this Court has no hesitation in relying the testimony of PW3.
46. Accused has neither alleged nor proved any enmity between the injured (now deceased) and him. Rather, accused was having motive to commit the crime as, as per statement of injured, earlier matter between him (accused) and his (injured) cousin was resolved by the injured. Human psychology is so complex and one cannot expect FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 21 of 30 what is going into the mind of another. After getting the matter resolved, accused was annoyed from the injured and thus, he caused injury to the injured.
47. Leaving aside all these issues, nothing has come on record that this statement of the injured is not of injured or he did not make any such statement, as alleged.
48. As mentioned above, considering the overall circumstances and discussion made above, there is no reason for false implication of the accused at the hands of the material public prosecution witnesses, more specifically PW3 Karan.
49. With the above observations, this Court is of the view that prosecution has fully established its case that accused caused injury to the injured on the date, time and place of incident and on 04.05.2019, he died.
50. At this juncture, it is to be seen, whether this case falls within the ambit of Section 302 IPC or otherwise.
51. In Ajit Singh Vs. State of Punjab (2011) 9 SCC 462, the Hon'ble Apex Court has observed - "...that the Indian Penal Code was enacted in the year 1860 under which the offences within the territory of India have been tried ever since it was enacted dealing with countless number of cases leading either to acquittal or conviction. Yet the task of the decision making authorities/court whether an offence of culpable homicide is a murder or culpable homicide does not amount of murder in the prevailing facts and circumstances of the case is a perennial question with which the courts are often confronted. When the evidence discloses a clear case of murder or makes out a finding of culpable homicide not amount to murder, the tasks of the courts to record conviction or acquittal is generally an easy one. But this task surely becomes an undaunted one when the accused commits culpable homicide/murder but the circumstances disclose many a times that it FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 22 of 30 is done without pre mediation or pre-planning, may be to cause grievous hurt yet it is so grave in nature that it results into death and the role of the factum causing death without pre meditation becomes a secondary consideration due to which the decision of the court in such cases often hinges on discretion while considering whether the case would fall under sec 302 or it would be under sec 304 Part I or part II. It is neither advisable nor possible to state any straight jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused."
52. In judgment reported as Richpal Singh Meena Vs. Ghasi AIR 2014 SC 3595: (2014) 8 SCC 918, Hon'ble Apex Court held that - "....It is for the Court to determine on the evidence whether, if it is culpable homicide, it amounts to murder as explained in Section 300 of IPC (along with all its clauses) or not as explained in Section 304 of IPC. If culpable homicide cannot be proved, then it would fall in the category of 'not culpable homicide'. According to Hon'ble Supreme Court, a five step inquiry is necessary as:
(I) Is there a homicide?
(II) If yes, is it a culpable homicide' or a 'not culpable homicide'?
(III) If it is a culpable homicide, is the offence one of culpable homicide amounting to murder (Section 300 of IPC) or is it a culpable homicide not amounting to murder (Section 304 of the IPC) (IV) If it is a 'not culpable homicide" then a case under Section 304A IPC is made out.
(V) If it is not possible to identify the person who has committed the homicide, the provisions of Se. 72 of IPC may be invoked."
53. In case reported as Jagriti Devi Vs. State of Himachal Pradesh (2009) 14 SCC 771, it was held that - "the expres- sion 'intention' and 'knowledge' postulate the existence of a positive mental attitude. It was further held that when and if there is inten-
FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 23 of 30tion and knowledge then the same would be a case under first part of Section 304 IPC and if it is only a case of knowledge and not in- tention to cause murder by bodily injury, then the same would be a case of second part of Section 304 IPC."
54. A Division Bench of Hon'ble High Court of Rajasthan in Narayan Lal v. State of Rajasthan, (Rajasthan, Jaipur Bench) 2010 WLC (Raj) (UC) 256, in the case where death occurred after four days due to septicemia which developed later on, the court examined the question whether the offence will fall under Section 302 IPC or can be altered to 304-I and 304-II IPC. Their Lordships in the above stated judgment observed as under:-
"21. Now, the question is, as to whether the learned trial court has correctly recorded conviction of the accused-appellant under Section 302 IPC or the same requires to be altered to section 304 Part I or 304 Part II IPC.
22. In the case of Kesar Singh v. State of Haryana, 2008 (2) WLC (SC) Cri. 249, the Hon'ble Supreme Court in paragraphs 20 and 21, regarding the distinction between the knowledge and intention, has held as under:
"20. We must keep in mind the distinction between knowledge and intention. Knowledge in the context of Section 299 would, inter alia, mean consciousness or realization or understanding. The distinction between the terms 'knowledge' and 'intention' again is a difference of degrees. An inference of knowledge that it is likely to cause death must be arrived at keeping in view the fact situation obtaining in each case. The accused must be aware of the consequences of his act.
21. Knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or inactive whereas intention connotes a conscious state in which mental faculties are roused into activity and summed up into action for the deliberate purpose of being directed towards a particular and specific end which the human mind conceives and perceives before itself.
This was discussed extensively in Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32, stating:
We may note at this state that 'intention' is different from 'motive' or 'ignorance' or 'negligence'. It is the FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 24 of 30 'knowledge' or 'intention' with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore, it is necessary to know the meaning of these expressions as used in these provisions... ..... .....The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end."
Kenny in "Outlines of Criminal Law" (17 Edition at page
31) has observed:
Intention: To intend is to have in mind a fixed purpose to reach a desired objective; the noun 'intention' in the present connection is used to denote the state of mind of a man who not only foresees but also desires the possible consequences of his conduct. Thus if one man throws another from a high tower or cuts off his head it would seem plain that he both foresees the victim's death and also desires it: the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes. It will be noted that there cannot be intention unless, there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed. Again, a man cannot intend to do a thing unless he desires to do it. It may well be a thing that he dislikes doing, but he dislikes still more the consequences of his not doing it. That is to say he desires the lesser of two evils, and therefore, has made up his mind to bring about that one.
Russell on Crime (12 Edition at Page 41) has observed:
"In the present analysis of the mental element in crime the word 'intention' is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct so as to FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 25 of 30 achieve a particular end at which he aims." It can thus be seen that the 'knowledge' as contrasted with 'intention' signifies a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, 'intention' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore in the case of 'intention' mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact."
23. In the instant case, Ex.P-9 parcha-bayan was recorded wherein it was specifically stated that two accused including appellant came at the time when function of Republic Day in the school was going-on and inflicted blows by knife and katar on the person of the deceased. As per statement of PW-4 Smt. Geeta Sharma, it appears that the injury at the abdomen was inflicted by co-accused Dhiru @ Cylinder. The injuries which have been assigned by PW-4 Smt. Geeta Sharma to accused- appellant are on the shoulder and at the back side of chest. The above two injuries are not sufficient in the ordinary course of nature to cause death. It is further important to take note that the deceased did not die soon after the incident but while the deceased was under treatment, after a couple of days, he died because of septicemia. In the above circumstances, from the nature of injuries on the person of deceased and injuries assigned to the accused-appellant, it can only be gathered that the accused-appellant was having knowledge that his act might result into the death of the deceased. By no stretch of imagination the act of the accused-appellant can be said to be one from which intention of the accused to kill the deceased be gathered because the appellant inflicted injuries on the shoulder and at the back of the deceased. In the opinion of the doctor also, the above two injuries were not the cause of death. If that be so, in our opinion, the accused appellant was not liable to be convicted under Section 302 IPC but was liable to be convicted under Section 304 part II IPC.
24. In the case of Bhagwan Bahadure v. State of Maharashtra, 2008 (1) WLC (SC) Cri. 49, it has been observed by the Hon'ble Supreme Court that it cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered".
FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 26 of 3025. In the case of State of Punjab v. Tejinder Singh, AIR 1995 SC 2466, in the facts where two persons inflicted Gandasa blows on the deceased, the altercation had already taken place four days prior to the incident over the boundary line of the plots of the parties, the accused persons came heavily armed shouting that the deceased should not be spared at a point of time when his wife had brought breakfast for him and he had gone to the hand pump to bring water in a pitcher, the Hon'ble Supreme Court has observed as under:
In view of our above findings we have now to ascertain whether for their such acts A-1 and A-2 are liable to be convicted under Section 302 read with Section 34, IPC. It appears from the evidence of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed.by the appellant is one under Section 304 (Part I), IPC and not under Section 302, IPC."
26. In the case of Jayraj v. State of Tamil Nadu, (1976) 2 SCC 788, it has been observed that in a case where the death occurred after nine days of the incident, it cannot be held to prove that the injury was sufficient to cause death in the ordinary course of nature.
27. In view of the fore-going discussion, the answer to the point no. 2 is that the judgment of conviction recorded against the accused-appellant under Section 302 IPC is not liable to be maintained and instead he is liable to be convicted and sentenced for the offence under Section 304 part II IPC."
55. In the case reported as Ganga Dass alias Godha Vs. State of Haryana, 1994 Supp (1) SCC 534, the accused gave iron pipe single blow on the head of the deceased and the deceased died eighteen days after the occurrence due to septicaemia and other complications, the conviction of the accused under Section 302 IPC was altered to Section 304 Part II IPC by the Hon'ble Apex Court.
56. In the case reported as Ramesh Vithalao Thakre Vs. State FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 27 of 30 1995 Crl LJ 2907 (SC), accused gave a single blow to the deceased who had tried to intervene in order to save his brother. It was held that the accused had knowledge but no intention to kill him and offence will fall under Sec. 304 Part II. As such, conviction of the accused under Section 302 IPC was set aside and he was convicted under Sec.304 Part II.
57. As per the prosecution case, injured was attacked just above right side of the buttock by knife, however, the said knife was not recovered, although, the accused was caught hold immediately after the incident. It was single blow and even the said injury was not given on the vital part of the body. As per SI Sandeep PW14, the deceased was discharged immediately within 2.00 to 2.30 hours on the day of incident itself. Thereafter, Site Plan was prepared at the instance of the deceased and as per evidence, he has also signed the documents i.e. apprehension memo, personal search memo and child version of accused as a witness within 4.00 to 5.00 hours of the incident. The said documents and even GD No.131A, which was recorded on 22.04.2019, show that police officials felt that maximum the accused has committed the offence of Section 324 IPC and as per the prosecution case, Section 307 IPC was not made out at that stage.
58. As per the testimonies of PWs and PM Report, the deceased felt pain in the intervening night between 22.04.2019 and 23.04.2019 and he was again rushed to hospital and then, he was treated in the different hospitals for about 13 days and during his medical treatment, he succumbed to his injuries. The PM report also shown the FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 28 of 30 surgical intervention injuries i.e. surgeries were also performed on the deceased.
59. PW-7 Dr. Jitendra, SR, MAM conducted postmortem on the body of deceased. As per the report Ex.PW7/A - cause of death is as Septicemia and its complications consequent upon perforation peritonitis by penetrating trauma to the right buttock which damaged large intestine, inflicted by sharp edged stabbing weapon via injury no. 1, which is imminently fatal and sufficient to cause death in ordinary course of nature. During cross- examination, questions were put by ld. defence counsel and replied as under:-
"Q - xxxx if anybody assaulted on the buttock by sharp edged object, can it damage to the large intestine or notxxx Ans: It depends upon the position of injury and force applied."
60. As per injured/deceased, the dispute occurred between cousin of injured/deceased namely Gulshan and accused and he intervened in the said dispute. Although, the child version of accused is not admissible but as per the same, two days back, the injured/deceased had taken the cap of the accused and he was demanding the same time and again but deceased was not giving him back the said cap and on account of the same, he (accused) had given injury by knife on his (deceased) back. The accused was shown to be of 16 years of age in the documents i.e. apprehension memo etc., however, after inquiry by J.J. Board, he was declared major. Still, the accused was very young and it appears that he was sensitive and hyper and considering his background, he was also not able to understand completely that the injury, which he had caused, may be FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 29 of 30 imminently fatal. Considering the overall circumstances and facts of the case, including the fact that only one injury with single blow was given to the injured on the back side just above the right buttock i.e. not vital part body, however, it appears that accused applied more force, which led to damage of large intestine, which caused Septicemia and on account of its complications, it caused death of the deceased after about 13 days, this Court is of the view that accused was not having any intention to kill him. At best, only knowledge, which is likely to cause death, may be attributed to the accused. In view of the peculiar facts and circumstances of the case, this Court is of the view that prosecution has failed to bring home the guilt for the offence punishable under Section 302 IPC, however, considering the overall facts and circumstances of the present case, including the aforesaid law laid down by Hon'ble Apex Court and Hon'ble High Court and further that death of a person, a human being, occurred on account of the injury inflicted on him by the accused and it can be inferred that accused was having knowledge that death is likely to be caused by his act, this Court is of the view that prosecution has fully established its case beyond all reasonable doubts for the offence punishable under Section 304 Part II IPC and as such, accused is held guilty accordingly for the said offence.
Announced in the open Court on this 23rd day of May, 2023.
(ARUN SUKHIJA) Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.FIR No. 242/2019 PS Kalyanpuri State Vs. Mohit Page No.: 30 of 30