Delhi District Court
State vs Rajender on 25 February, 2020
IN THE COURT OF MS MANJUSHA WADHWA
ADDITIONAL SESSIONS JUDGE-3 (SHAHDARA)
KARKARDOOMA COURTS, DELHI
SC No. 336/16
FIR No. 449/13
Police Station Vivek Vihar
Under Section 302/34 IPC and 27/54/59 Arms Act
State Versus Rajender
S/o Shiv Kumar
R/o H. No. E-80/526, Rajiv Camp,
Krishna Market Jhuggi, Jhilmil Colony,
Delhi.
Date of Institution : 26.03.2014
Date of judgment reserved : 14.02.2020
Date of order : 25.02.2020
Decision : Conviction u/s. 304 (II) IPC
JUDGMENT
1. Police has filed present charge sheet against accused Rajender in case FIR No. 449/13, PS Vivek Vihar under 302/34 IPC and 27/54/59 Arms Act.
2. Background facts of the instant case are that on receipt of DD no. 20A at PS Vivek Vihar on 14.11.2013, SI Praveen (IO) along with Ct. Ravi reached the spot i.e. Mandir Wali Gali, Rajiv Camp, Jhilmil Colony where injured was reported to have been removed to Dr. Hedgewar Hospital; HC Satvir and Ct. Rahul met along with accused Rajender and one juvenile R(name not disclosed) with a blood stained knife having blood on both sides of blade. Blood stains were also noticed near BSES pole no. JLM F-
SC No 336/16 State Vs. Rajender Page 1 of 45892; Ct Ravi remained at the spot and IO headed towards Dr. Hedgewar Hospital and obtained MLC of injured Rajesh wherein one lacerated wound of size about 6 cm x 1.5 cm(depth to be estimated by SR surgery) on chest wall, right lateral side was mentioned. Victim Rajesh was reported to have died during treatment.
3. In the hospital, Rakesh, brother of deceased, met IO and IO recorded his statement Ex.PW1/A wherein he stated that on 14.11.2013 at about 8.30 p.m., he was present near his jhuggi along with his maternal brother Ashok; he saw that his younger brother Rajesh, who was residing with him, collided with Rajender, who was bringing mustard oil from Nirmal Provision Store and his mustard oil fell on the ground, which infuriated Rajender and Rajender started abusing Rajesh; on hearing abuses, Rajesh got angry and he started beating Rajender. In the meanwhile, R(JCL), younger brother of Rajender, who was living with him, also came there and incident of Rajender being beaten by Rajesh triggered anger of R(JCL) and R(JCL) threatened to eliminate and teach lesson to Rajesh. Rajender and his brother went to their jhuggi; Rajender armed with a big knife and his brother R(JCL) again came at the spot; R(JCL) caught hold of Rajesh from his neck and Rajender stabbed Rajesh in his right armpit; Rakesh, his brother and cousin brother Ashok separated Rajesh from accused Rajender; Rajender along with knife and his brother R(JCL) were apprehended with the help of other public persons and someone called police at no. 100. Police staff reached at the spot. Rakesh with the help of Ashok handed over the accused and R(JCL) with knife to them. Rajesh was SC No 336/16 State Vs. Rajender Page 2 of 45 taken to hospital by the police where Rajesh succumbed to his injuries.
4. Death summary of Rajesh was prepared; postmortem on the dead body of Rajesh was got conducted; measurement of knife viz. total length was 11 inch, blade was 5.8 inch long and 3.5 cm wide from middle, handle was 5.2inch; sketch of knife was prepared and it was seized after converting it into a pulanda; Crime Team was called at the spot, which took photographs and inspected the site; Tehrir was prepared and present FIR was registered.
5. Further investigation was assigned to Insp. Vijay Kumar; who prepared site plan of the scene of crime; lifted blood from two places at the spot; accused Rajender and his juvenile brother R(JCL) were interrogated; accused Rajender was arrested; blood stained shirt of accused Rajender, which he was wearing at the time of incident was seized; disclosure statement of accused Rajender was recorded; statement of other witnesses were recorded; JCL proceedings against R(JCL) were separately conducted; postmortem report was obtained wherein cause of death was opined to be "haemorrhage and shock consequent to stab injury of the liver"; samples seized in the case were sent to FSL for examination. On completion of the investigation, present chargesheet was filed.
6. After complying with provisions of Section 207 Cr.P.C., case was committed to Court of Sessions, which in turn assigned the case to this Court for trial in accordance with law.
7. On hearing Ld. Counsel for the accused and Ld. Addl PP for the State, charges U/s 302/34 IPC and 27 Arms Act were SC No 336/16 State Vs. Rajender Page 3 of 45 framed against the accused to which he pleaded not guilty and claimed trial.
8. In order to prove its case, prosecution has examined 27 witnesses. PW-1 Rakesh is real brother of the deceased Rajesh; PW-5 Neelam and PW10 Ashok are eye witness as per case of prosecution whose testimony shall be considered in later part of judgment.
9. PW2 Dr. Rabindra Kumar had medically examined Rajesh, whereas PW3 Dr. Akash Jhanjee had conducted postmortem on the dead body of Rajesh; PW12 Dr. Prasad Prakash Upganlawar from Dr. Hedgewar Hospital had initially examined injured Rajesh in the hospital, advised his admission in surgery ward and later prepared his death summary as Ex PW-12/A; PW4 HC Ram Kishore had recorded DD no. 20A Ex.PW4/A regarding incident of stabbing and DD no. 25A Ex.PW4/B received from Dr. Hedgewar Hospital regarding death of Rajesh; PW-6 Suraj had identified the dead body of his brother Rajesh vide document Ex PW-6/A; PW7 HC Harbindra Singh is duty officer, who recorded FIR Ex.PW7/A in the present case; he made endorsement Ex.PW7/B on the Tehrir and also made relevant entries in DD register Ex.PW7/C vide DD no. 4A and 5A; PW8 ASI Ved Prakash alongwith one constable reached at the spot in ERV on receipt of wireless message; PW9 Ct. Ravi joined the investigation with IO/SI Praveen; PW11 Ct. Devi Ram handed over DD no. 25A to SI Praveen in Hedgewar Hospital and was witness to statements Ex.PW11/A and Ex.PW11/B regarding identification of dead body of Rajesh by Rakesh and Suraj; PW13 Ct.
SC No 336/16 State Vs. Rajender Page 4 of 45Vikas had taken photographs of the scene of crime, which are Ex PW-13/1 to Ex PW-13/9; PW14 ASI Brahmjeet Singh, Incharge PCR Van received information from control room regarding the incident; PW15 Ct. Sompal Singh had deposited several pulandas at FSL; PW16 HC Sonu Kaushik prepared scaled site plan Ex.PW16/A; PW17 HC Ram Kishor was posted as MHCM with whom case property was deposited; PW18 SI Harish Chander Pathak has proved PCR form Ex.PW18/B and certificate issued under Section 65B of Evidence Act as Ex.PW18/A; PW19 HC Raj Pal was also posted as MHCM who proved the handing over of sealed parcel to Ct Ravi vide R/C as Ex. PW-19/A as well as sealed parcel received from Ct Ravi vide entry in register no. 19 as Ex PW-19/B; PW20 Ms. Imrana had examined samples in FSL and gave reports as Ex.PW20/A and Ex.PW20/B. PW21 HC Satbir Singh also joined investigation in this case with PW-26 Ct Rahul. PW22 Ct. Sushila had received information of stabbing at PHQ and proved PCR form as Ex. PW-18/B, PW23 SI Karamveer Singh was Incharge of Mobile Crime Team and he prepared report Ex.PW23/A; PW24 SI Praveen Kumar is first IO of the case; PW25 Ct. Mithun delivered copies of FIR to Senior Officers of Police and area Magistrate; PW27 Inspector Vijay Kumar is second IO in this case.
Testimony of Key/Material Police Witnesses
10. PW8 ASI Ved Prakash, who was posted on Emergency Response Vehicle (ERV), deposed that at around 9:10 p.m., on receipt of a wireless message from PCR regarding quarrel at Rajeev SC No 336/16 State Vs. Rajender Page 5 of 45 Camp, Krishna Market, Mandirwali Gali, he reached there with one constable and found one person lying among the public persons on the road with stab injuries and that person was conscious, who introduced himself as Rajesh. Injured was taken to Dr. Hedgewar Hospital in their vehicle. He had made departure entry at PS vide DD No. 53-B while leaving for Patrolling duty. In cross examination, this witness stated that he would have reached the spot within 2-3 minutes after receiving the message. He testified that around 15-20 persons would have assembled at the spot and none from the family members of injured had accompanied in his vehicle to the hospital. He also testified that public persons had not detained any person as culprit in this incident.
11. PW9 Ct. Ravi Kumar deposed that at about 9:10 p.m., SI Praveen Kumar came to him in the PS and asked him to accompany him to Rajeev Camp. They reached Mandirwali Gali in Rajeev Camp and found that HC Satbir and Ct. Rahul were already present there, who had detained two persons in their custody, whose names were revealed as Rajender and R(JCL); Rajender was having knife in his hand, which was having blood on the same. R(JCL) was not having anything. HC Satbir informed them that injured was already removed to Hospital. He saw blood lying on the road beside an electric pole. SI Praveen went to Dr Hedgwar Hospital after leaving this witness(Ct Ravi) at the spot. At about 12.00 A.M., SI Praveen came back and sealed the knife; prepared tehrir and handed over the same to this witness for registration of FIR. This witness came back to the spot after registration of FIR and handed SC No 336/16 State Vs. Rajender Page 6 of 45 over copy of FIR with Tehrir to Inspector Vijay Kumar. This witness duly identified the accused Rajender in court.
12. In cross examination, PW-9 Ravi Kumar testified that he reached the spot at around 9:20 p.m. He remained at the spot upto 1:00 a.m. No other public person was standing with HC Satbir and accused persons. Both accused persons remained in their custody till that time. He further testified that when he reached the spot, Ct Satbir was having custody of accused Rajender and Ct Rahul was having custody of R(JCL). He was cross examined at length but nothing material was elicited during his cross examination.
13. PW- 14 ASI Brahmjeet Singh deposed that on receipt of information from Control room about stabbing of a boy, he went there with his van. He found number of public persons and police officials present there. He came to know that the injured had been removed to hospital. In the meantime, SI Praveen also reached there. The beat officer as well as local public persons had apprehended accused Rajender and R(JCL) with knife. He identified accused Rajender in court. In cross examination, he testified that he had received a call at around 9 p.m. and he reached the spot in around 5 minutes. He stayed at the spot for about 10 minutes. He testified that IO/SI Praveen kumar reached after about 3-4 minutes of his arrival. Nothing material was elicited in his cross-examination.
14. PW21 HC Satbir deposed that on 14.11.2013, he was on patrolling duty along with Ct. Rahul(PW26) on motorcycle and on receipt of wireless message from the control room regarding an incident of stabbing, they went to the jhuggis situated at the backside SC No 336/16 State Vs. Rajender Page 7 of 45 of PS, ERV vehicle was there, officials of that vehicle were taking one injured to the Hospital; public persons had detained Rajender and R(JCL); Rajender was having a blood stained knife in his hand and public persons had handed over both the persons to him. Brother of injured namely Rakesh alongwith his cousin Ashok was present. He also testified about arrival of SI Praveen with Ct Ravi. He also testified that SI Praveen went to Hospital and left Ct. Ravi at the spot. SI Praveen came back after around 2-2 ½ hours. He produced both the accused alongwith Knife before SI Praveen. SI Praveen did further investigation. He identified the accused Rajender and Knife in court. He also identified the shirt which was worn by the accused Rajender as Ex. PW-21/Article1. In cross examination, he testified that he had reached the place of incident at about 9:15 to 9:17 p.m. and left the spot at about 4-4:15 a.m. He testified that accused Rajender was presented before him by Rakesh, brother of the deceased and Ashok. ERV staff had reached prior to him and when he reached there, they were taking deceased to the hospital. SI Praveen had reached the spot at about 9:25 p.m. Testimony of PW-26 Rahul is almost on similar line and is not repeated herein for the sake of brevity and repetition.
15. PW-24 SI Praveen Kumar has also deposed that on receipt of DD no. 20A on 14.11.2013 regarding inflicting of knife injury in Rajeev Camp Jhuggis, behind Police Station, he alongwith Ct Ravi reached the spot where HC Satbir and Ct. Rahul along with two accused persons, namely, Rajender and R (JCL) with a knife met them. His testimony is also in tune with the testimony of HC SC No 336/16 State Vs. Rajender Page 8 of 45 Satbir regarding production of accused before him. Thereafter, he reached Dr. Hedgewar Hospital and obtained MLC of injured Rajesh and came to know that injured Rajesh had expired during treatment. Rakesh, brother of deceased, met him in the hospital; he made inquiry and recorded his statement Ex.PW1/A; dead body of Rajesh was got preserved n Subzi Mandi Mortuary through Ct. Devi Ram; he measured knife and prepared its sketch Ex.PW1/E and knife was seized vide memo Ex.PW1/F after converting it into a pulanda; he made endorsement on the statement of Rakesh; prepared Rukka Ex.PW24/A and got the case registered by sending Ct. Ravi to the PS. After registration of FIR, Constable Ravi returned and handed over rukka as well as copy of FIR to Insp Vijay Kumar. Thereafter, further investigation was assigned to Insp. Vijay Kumar and this witness also joined further investigation with Insp. Vijay Kumar.
16. Insp. Vijay Kumar has been examined as PW27. He reached the spot along with Ct. Ravi where he met SI Praveen, HC Satbir, Ct. Rahul and other staff members. Accused was present there along with his juvenile brother and they were in custody of HC Satbir and Ct. Rahul. He prepared site plan Ex.PW27/A at the instance of Rakesh; blood was lying at the spot and he lifted the same from two spots with the help of gauze piece and same was seized vide memo Ex.PW1/D. He interrogated accused Rajender and his JCL brother. He arrested accused Rajender vide memo Ex.PW1/G; conducted his personal search vide memo Ex.PW1/H; recorded disclosure statement of accused Rajender as Ex.PW21/B. He recorded statement of Ashok, Neelam and other witnesses.
SC No 336/16 State Vs. Rajender Page 9 of 45Accused Rajender was wearing pink colour shirt on which blood stains were found visible. Shirt of accused Rajender was taken into police possession vide memo Ex.PW21/A after converting it into a pulanda. Brother of accused was found to be juvenile and SI Kamlesh was called for conducting proceedings with regard to JCL. Both the accused and R (JCL) were got medically examined. He filled up request form Ex.PW27/B for postmortem on the dead body of Rajesh; he prepared death report Ex.PW27/C; postmortem was got conducted on the dead body of Rajesh and dead body was handed over to relative of the deceased vide memo Ex.PW1/D; he collected PCR form, got scaled site plan prepared; he obtained FSL result as well as subsequent opinion Ex.PW3/B regarding weapon of offence and injuries suffered by deceased. Letter Ex.PW27/D was written by him in that regard.
17. In cross examination, this witness admitted that DD No. 20A does not bear name of the assailant; phone number mentioned in the DD belongs to mother-in-law of Neelam. He reached the spot at around 2:15/2:30 a.m. Around 4-5 persons were present at the spot when he reached there. He testified that crime team was not called by him at the spot; crime team was carrying out inspection when he reached there. He testified that injured was removed to hospital by ERV. He denied the suggestion that he did not conduct the fair investigation of the present case.
Medical Evidence:
18. PW-2 Dr. Rabindra Kumar, Medical Officer, Dr. SC No 336/16 State Vs. Rajender Page 10 of 45 Hedgewar Arogya Sansthan, Karkardooma has deposed that on 14.11.2013 at about 9.21 p.m., one injured Rajesh was brought to the hospital by ASI Ved Prakash with alleged history of assault. He medically examined the patient and gave him first aid and referred him to surgery department for detailed examination and management. He has proved MLC of deceased Rajesh as Ex.PW2/A. In cross examination, he testified that patient was not found in drunken condition.
19. PW-3 Dr. Akash Jhanjee, Specialist, Forensic Medicine, Aruna Asaf Ali, Government Hospital had conducted postmortem on the dead body of deceased Rajesh Kumar on 16.11.2013 and observed a stab wound measuring about 4 cm x 0.9 cm x right side chest cavity deep. In his opinion, cause of death was "hemorrhage and shock consequent upon stab injury of the liver. Stab injury was caused by some sharp cutting stabbing weapon with single edge sharp" and all the injuries were antemortem in nature and fresh in duration. He proved the postmortem report as Ex. PW-3/A. He further testified that on 21.08.2015, he received one sealed parcel containing knife. He gave subsequent opinion stating that injury mentioned in the postmortem report i.e. stab wound was possible with the knife examined by him or similar kind of weapon. He proved his subsequent opinion as Ex. PW-3/B. In cross examination, he stated that he cannot tell the exact time of infliction of injury but it was possible within 24 hours from the time of death.
20. On conclusion of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein accused SC No 336/16 State Vs. Rajender Page 11 of 45 stated that he was doing job in Kashmere Gate at the time of alleged incident and was working as a decorator of vehicles in Kashmiri Gate. As per the accused, he was arrested by police from Kashmere gate and has been falsely implicated in the present case. He denied recovery of knife from him and stated that same was planted on him. He examined one Bablu as DW-1 in his defence.
Defence Evidence/Testimony of DW-1 Bablu
21. DW-1 deposed that he knows accused Rajender for last 11 years as they worked together at Kashmere Gate, car accessory market and they used to work at the same workshop and their working hours were from 10.00 a.m. to 10.00 p.m. DW-1 further deposed that on 14.11.2013, Rajender was with him for the entire day and at about 10.00 p.m. when they were closing their workshop, 2-3 police officials came and they took Rajender with them for some inquiry. On the next day, Rajender did not come for work, as also on 16.11.2013. He made a call to father of Rajender, who informed that the accused had been falsely implicated by the police.
22. In cross-examination by Ld. Addl PP, DW-1 stated that he has come to Court to depose at the instance of accused Rajender. He also stated that he did not inform any police official that accused Rajender was with him for the entire day on 14.11.2013 and also did not inform the family members of Rajender in this regard. He denied that he has deposed the facts in order to save the accused from legal punishment.
SC No 336/16 State Vs. Rajender Page 12 of 45Arguments addressed by Sh. Vikas Kumar Ld. Addl. PP for the State and Sh. Gaurav Vashisht, ld. Amicus Curiae for the accused.
23. Ld. Addl PP for the State has argued that PW-1 Rakesh has clearly deposed that Rajesh died of stab injury inflicted by the accused Rajender, who was apprehended on the spot with a blood- stained knife. It is also his submission that PW-3 Dr. Akash Jhanjee, had given postmortem report, which also records cause of death as 'hemorrhage and shock consequent upon stab injury of liver' and also opined that stab wound was possible with the said knife or similar kind of weapon. It is also his submission that PW-5 Neelam and PW-10 Ashok though turned hostile, their testimonies cannot be completely brushed aside as they supported part of prosecution story. He thus contended that on the basis of evidence on record, expert and medical evidence, prosecution has been able to prove charges against the accused.
24. Ld. Amicus Curiae for the accused has argued that accused was not present at the spot at the time of alleged incident and that he was present at his work place i.e. at Kashmere Gate; nothing was recovered from his possession and alleged knife has been planted upon him. He further contended that the information given vide DD No. 20A(Ex PW-4/A) is with respect to some quarrel as "kisi ne ek ladke ko chaku mar diya" and said PCR call was done by Neelam, who is cousin sister of deceased Rajesh but she did not disclose that her brother Rajesh sustained injury, which raises doubt on the story of the prosecution. He further contended that as per SC No 336/16 State Vs. Rajender Page 13 of 45 MLC Ex.PW2/A, the patient was conscious, still he had not disclosed the name of the assailant to ASI Ved Prakash and Doctor, which puts dent in the case of prosecution. It is also pointed out by ld Amicus Curiae that as per MLC, PW-8 ASI Ved Prakash brought the injured to the Hospital, whereas PW1 Rakesh (brother of deceased) deposed that Ashok Kumar took the injured to the Hospital. He further submitted that as per MLC, deceased sustained one lacerated wound 6 cm x 1.5 cm on chest wall right lateral side, however, PW3 Dr Akash Jhanjee mentioned the size of injury different from what is mentioned in the MLC.
25. It is also submission of Ld. Amicus Curiae for the accused that FSL result Ex.PW20/A could not connect the knife recovered from the accused with the present case; public witnesses are not joined in the investigation; wife of Rajesh was not cited as a witness, though she was very much present at the spot; recovery of knife is doubtful since as per Rukka, accused with knife was apprehended at the spot, whereas as per testimony of PW1 Rakesh, accused fled away with a knife from the spot and was apprehended later; PW-5 Neelam could not tell as to who had taken her brother to the Hospital; PW-8 ASI Ved Prakash testified in cross examination that none from the family members accompanied the injured to the hospital which reflects the unnatural conduct of PW-1 Rakesh who was real brother of deceased Rajesh. He thus urged that the prosecution has failed to prove the case beyond reasonable doubt against the accused and he deserves acquittal.
26. Before considering rival contentions of the parties, it is SC No 336/16 State Vs. Rajender Page 14 of 45 necessary to peruse testimony of material witnesses. Testimony of material/ star witnesses
27. PW1 Sh. Rakesh is brother of the deceased Rajesh and was present with him at the time of incident. PW-1 testified that on 14.11.2013 at about 08.30 p.m., he along with his cousin Ashok Kumar (PW10) was standing in a Gali in Jhilmil colony near clinic of Dr. Satija and Hanuman Temple, Rajeev Camp. He further testified that at that time, accused Rajender was purchasing some articles from the departmental shop of one Mr. Nirmal located there and his brother Rajesh was coming from other side, who collided with accused Rajender near shop of Nirmal, as a result of which, mustard oil from the hand of accused Rajender fell down and accused Rajender started abusing Rajesh which was followed by a physical altercation (hathapai). PW1 and Ashok intervened and separated both the persons; accused Rajender left that place after extending threat to Rajesh that he would come again and teach him a lesson. After about 5-10 minutes, accused Rajender came back with his brother R(JCL). This witness further testified that accused Rajender was carrying a knife in his hand; R(JCL), brother of accused Rajender, had caught hold of Rajesh (brother of this witness) and Rajender stabbed Rajesh below his right armpit and Rajesh started bleeding. Thereafter, Rajender and R(JCL) fled away from that place, went back to their house and closed themselves inside their house. House of accused was situated at distance of about 2 minutes' walk from the place of incident. He further deposed that they were taken aback that accused Rajender kept the knife hidden and he along SC No 336/16 State Vs. Rajender Page 15 of 45 with his brother R(JCL) attacked Rajesh all of a sudden leaving no time for them to understand as to what was happening. He further testified that he went for help of his brother and Ashok followed the accused persons. He tried to stop bleeding of Rajesh by tying a cloth on the injury but was not successful. Wife of Rajesh was also present there. He asked wife of Rajesh to take care of him and he followed Ashok to the house of accused Rajender. Ashok was standing outside the door of Rajender and this witness blocked the door of Rajender and he was also joined by other lady members of his family. This witness remained outside the house of Rajender, whereas Ashok came back to Rajesh and took him to the Hospital. In the meantime, Neelam, cousin sister of this witness had made a call to the Police and Police came there after Rajesh had been removed to the Hospital by Ashok. Police officials got opened the door of house of Rajender; they apprehended Rajender as well as his brother R(JCL) and took them to the Police Station (PS). Police recorded his statement Ex.PW1/A in the PS. He testified that his brother Rajesh expired on the same night in the hospital.
28. PW-1 Rakesh further testified that police lifted blood from the spot and seized it vide seizure memo Ex.PW1/B. This witness went to mortuary and identified dead body of Rajesh and his statement Ex.PW1/C was recorded in that regard. He received dead body of Rajesh vide receipt Ex.PW1/D. Police prepared sketch of the knife recovered by accused as Ex.PW1/E and said knife was seized vide memo Ex.PW1/F. Accused was arrested vide memo Ex.PW1/G and his personal search was conducted vide memo Ex.PW1/H. This SC No 336/16 State Vs. Rajender Page 16 of 45 witness has identified the knife as Ex.PW3/Article-1.
29. In cross-examination, PW-1 stated that Nirmal store was at a distance of 10-15 steps from his house; purchasers in the Nirmal Store are visible from the place where this witness was standing. He is specific that at the time of stabbing of Rajesh, this witness, Ashok and wife of Rajesh were present and other persons were inside their house. He also stated that Rajesh had come from the side of Lovely Sweets and then he entered the Gali of Temple.
30. Upon specific confrontation by Ld. LAC for the accused, PW-1 Rakesh testified that he had stated before the police in his statement that he and Ashok had intervened and separated Rajender and Rajesh; Rajender left that place after giving threat to Rajesh and after 5-10 minutes, he came back along with his brother R(JCL) and after injuring Rajesh, Rajender and R(JCL) fled away from that place, went back to their house and closed themselves in their house; Ashok had followed the accused persons when they fled away; wife of Rajesh was also present at the spot and he asked her to take care of Rajesh; he also went behind Ashok to the house of Rajender, where Ashok was standing outside the door of Rajender to ensure that Rajender could not escape or that he also blocked the door of Rajender and he was also joined by some other lady members of his family or that Ashok came back to Rajesh and he remained outside the house of Rajender; Ashok took Rajesh to Hospital and Neelam made call to Police or that police had reached the place after Ashok had taken Rajesh to the Hospital or that Police got opened the door of accused Rajender and thereafter SC No 336/16 State Vs. Rajender Page 17 of 45 apprehended Rajender and R(JCL), but these facts were not mentioned in his statement Ex.PW1/A.
31. PW10 Ashok is a star witness of the prosecution. However, this witness stated that on 14.11.2013 at about 8.30 p.m., on hearing noise from Mandir Wali Gali, he came out of his house and saw that Rajesh (his cousin) and accused Rajender were fighting. He testified that one brother of Rajender also came there, who was showing anger. He intervened and separated them. When he was coming to his house after separating above persons and he had hardly moved 8-10 steps, he again looked back and saw that Rajesh was lying on the ground and was bleeding. At that time, he did not see Rajender there. He went to Rajesh and found that he was injured on right side of his abdomen. He asked some persons to call police at no. 100. He was taking Rajesh to the Hospital, but in the meantime, police reached and took Rajesh to Karkardooma Hospital and he remained there. This witness (PW-10) further testified that he did not see who had inflicted injury to Rajesh. At that time, Rakesh brother of Rajesh was present there. No one had apprehended the assailant at that time in his presence. He did not see any knife lying there. He had visited the hospital and came to know that Rajesh had expired.
32. This witness(PW-10) was declared hostile by the prosecution and cross-examined by Ld. Addl PP. In his cross- examination by Ld. Addl. PP, PW10 stated that Rakesh was not present when he had separated Rajesh and accused Rajender. He stated that Rakesh had come there when he was going back after SC No 336/16 State Vs. Rajender Page 18 of 45 separating Rajesh and accused Rajender. He denied having seen Rajesh colliding with accused Rajender due to which mustard oil fell from the hands of Rajender and Rajender abused Rajesh and Rajesh gave beating to Rajender or that R(JCL), brother of the accused also came there and threatened Rajesh or that they went back to their jhuggi. He also denied that later on, accused Rajender came with a big knife along with R(JCL) or that R(JCL) caught hold of Rajesh from his neck and Rajender stabbed on right side of abdomen of Rajesh or that he along with Rakesh reached there and separated Rajesh from Rajender and his brother or that with the help of other public persons, Rajender along with knife and his brother were apprehended on the spot. He also denied that on arrival of police, he along with Rakesh handed over custody of accused Rajender and his brother R(JCL) with knife to Police.
33. In his cross-examination, PW-10 Ashok denied having not seen Rajesh and Rajender quarreling in Mandir Wali Gali or that he was not present in the Mandir Wali Gali. In response to Court query, this witness stated that Rajesh was residing in the same gali along with his brother, wife and other relatives. His house was situated at a distance of 10-20 steps from the place of incident. Wife of Rajesh had reached the place of incident prior to stabbing of Rajesh, after he had separated Rajesh and Rajender.
34. PW5 Smt. Neelam has deposed almost on the lines of PW10 that on 14.11.2013 at about 8.40 p.m. on hearing noise, she came out of her house and saw that there was a verbal abuse going on between her brother Rajesh and two brothers, one of them was SC No 336/16 State Vs. Rajender Page 19 of 45 Rajender. After hearing noise, Rakesh, Ashok, Mukesh and this witness had also reached there. They intervened and separated Rajesh from Rajender and his brother. She alongwith Ashok came towards her house and others went towards their respective houses. After 5-10 minutes, she again heard noise coming from the side of house of Rajesh. She again came out in the Gali and saw that Rajesh was injured with knife and he was bleeding. At that time, Rakesh and Mukesh along with wife of Rajesh were present. She made a call at no. 100 from the mobile number 9654827412 of her mother in law. Wife of Rajesh had become unconscious after seeing the incident and this witness started taking care of her as she was pregnant. She further deposed that when she came out of her house for second time, she had not seen stabbing of her brother Rajesh, however, she had seen Rajender running away with a knife in his hand and having blood in his hand. Her younger brother was also running with him.
35. This witness(PW-5 Neelam) was declared hostile by the prosecution and was cross-examined by Ld. Addl PP. In cross- examination by Ld. Addl PP, she denied seeing the incident but she volunteered that she had seen brother of Rajender, who had caught hold of her brother Rajesh from behind and Rajender was pulling out knife from the portion below right armpit of Rajesh and thereafter both of them ran away. She was confronted with her statement Ex PW-5/P-1 where it was not so stated. In her cross-examination by Ld. defence counsel, she stated that she did not mention before police that she had seen Rajender and his brother running away SC No 336/16 State Vs. Rajender Page 20 of 45 from the spot. Someone had told her about taking of her brother to the hospital but she does not remember who had taken Rajesh to the hospital.
Appreciation of Testimony of material witnesses:
36. As per case of the prosecution, PW1 Rakesh, brother of deceased Rajesh, PW5 Neelam and PW10 Ashok are eye witnesses to the incident, which took place on 14.11.2013 whereby the accused Rajender had inflicted stab injury to Rajesh, who succumbed to his injuries in the hospital. PW1 Rakesh in his statement Ex.PW1/A, stated that on 14.11.2013 at about 8.30 p.m., he was present near his jhuggi along with his maternal brother Ashok; he saw that his younger brother Rajesh, who was residing with him, collided with accused Rajender, who was bringing mustard oil from Nirmal Provision Store, as a result of which, mustard oil fell on the ground, which infuriated Rajender and Rajender started abusing Rajesh; on hearing abuses, Rajesh got angry and he started beating Rajender. In the meanwhile, R(JCL), younger brother of Rajender who was living with him also came there and incident of Rajender being beaten by Rajesh triggered anger of R(JCL) and R(JCL) threatened to eliminate and teach lesson to Rajesh. Rajender and R(JCL) went to their jhuggi; Rajender armed with a big knife and his brother R(JCL) again came at the spot; R(JCL) caught hold of Rajesh from his neck and Rajender stabbed Rajesh in his right armpit; Rakesh, his brother and other public persons separated Rajesh from accused Rajender; Rajender along with knife and his SC No 336/16 State Vs. Rajender Page 21 of 45 brother R(JCL) were apprehended and someone called police at no.
100. FIR was registered on the basis of rukka which was prepared on the basis of statement dated 14.11.2013 of Rakesh which is Ex.PW1/A.
37. However, in examination in chief, PW1 Rakesh though supported the story of prosecution but gave different version on certain aspects inasmuch as he testified that accused Rajender along with his brother R(JCL) fled away from the place of incident to their house and weapon of offence i.e. knife was recovered at the instance of accused Rajender, while as per Rukka, accused Rajender with R(JCL) was apprehended along with the knife from the spot. It is also relevant to note herein that as per rukka, police had taken injured Rajesh to the Hospital, whereas as per testimony of PW-1 Rakesh, Ashok (PW10) took Rajesh to the Hospital. Again, as per rukka, it is R(JCL) instead of Rajender who extended threat to Rajesh and call at no. 100 was made by somebody, while as per testimony of PW-1 Rakesh, Neelam had made call to the police. Further, the testimony of PW-1 Rakesh that he and Ashok intervened and separated Rajender and Rajesh at the time of hathapai is not mentioned in rukka.
38. It is contention of Ld. Amicus Curiae for the accused that aforesaid variations in the testimony of PW1 Rakesh are not usual and the same raise doubt about his presence at the place of incident. He also submitted that PW1, being real brother of the injured Rajesh, did not accompany him to the hospital, which is not normal human conduct.
SC No 336/16 State Vs. Rajender Page 22 of 4539. The present incident is dated 14.11.2013 and the testimony of PW1 Rakesh was recorded on 25.05.2015 i.e. after about 18 months and due to this time gap, some variations might have crept in the testimony of PW1. It is also to be seen whether the said variations are material to put dent in the case of prosecution. PW1 Rakesh stated in his examination-in-chief that house of accused Rajender and R (JCL) was situated at a distance of about 2 minutes' walk from the place of incident. The relevant aspect to note is that accused Rajender was also residing in the same locality where the incident happened. Further, as per testimony of PW1, accused Rajender and R (JCL) after committing the incident, fled away to their house, which was very near to place of incident. It is also his testimony that Ashok followed them, he went behind Ashok and stood outside the door of Rajender to ensure that the accused persons could not escape, in the meanwhile, police came there, who got the door of house of accused Rajender opened and apprehended him as well his brother R (JCL). The very fact that there was hardly any distance between the place of incident and house of Rajender, where he confined himself and got arrested by the Police in presence of PW1 Rakesh, the apprehension from spot or from the residence of accused Rajender is not of such significance so as to discard the case of prosecution.
40. PW-21 HC Satbir is a witness of arrest of accused persons. He stated that public persons had detained Rajender and R (JCL); Rajender was having blood stained knife in his hand and public persons handed over both the accused to him. He also SC No 336/16 State Vs. Rajender Page 23 of 45 testified that brother of injured, namely, Rakesh was present there along with his cousin, namely, Ashok. Considering the distance of about 2 minutes' walk between the place of incident and the house of accused as well as the fact that accused was apprehended in the presence of PW-1 Rakesh, the aforesaid variation in the manner of arrest of accused persons is not fatal to the case of prosecution.
41. PW-1 Rakesh further deposed about the presence of PW5 Smt. Neelam and PW10 Ashok on the date of incident. Pertinently, PW5 Neelam and PW10 Ashok denied seeing the incident and turned hostile, but they have not denied their presence at the place of incident. Ld. Amicus Curiae for the accused submitted that the testimony of PW-5 Neelam and PW-10 Ashok cannot be relied upon as they were declared hostile by the prosecution. In this regard, suffice is to state that it is duty of the court to make an attempt to separate grain from the chaff to unravel the truth. Reliance in this regard is made to the judgment of the Hon'ble Apex Court in Criminal Appeal No. 1340 of 2007 Ramesh Harijan Vs. State of U.P. decided on 21.05.2012, wherein it has been observed as under:-
" 20. Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses, particularly, that of Kunwar Dhruv Narain Singh (PW.1), Jata Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8). However, it is the duty of the court to unravel the truth under all circumstances.
21. IN BALKA SINGH & ORS. V. STATE OF PUNJAB, AIR 1975 SC 1962, THIS COURT CONSIDERED A SIMILAR ISSUE, PLACING RELIANCE UPON ITS EARLIER JUDGMENT IN ZWINGLEE ARIEL V. STATE OF MADHYA PRADESH, AIR 1954 SC 15 AND HELD AS UNDER: "The Court must make an attempt to separate SC No 336/16 State Vs. Rajender Page 24 of 45 grain from the chaff, the truth from the falsehood, yet this could only be possible when the true is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."
22. In Sukhdev Yadav & Ors. v. State of Bihar, AIR 2001 SC 3678, this Court held as under: "It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment, sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account."
23. A similar view has been reiterated in Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696, wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses now-a-days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not dis-believe the evidence of such witnesses altogether if they are otherwise trustworthy.
24. In Sucha Singh v. State of Punjab, AIR 2003 SC 3617, this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely SC No 336/16 State Vs. Rajender Page 25 of 45 because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well."
42. In the instant case, it is apparent from the testimonies of PW-5 Neelam and PW-10 Ashok that they admitted altercation between injured Rajesh and accused Rajender as well as his brother R(JCL). Therefore, their testimony cannot be completely brushed aside. In fact, PW10 Ashok, on seeing the fight, between Rajesh and accused Rajender, intervened and separated them. It is also relevant to note herein that when PW10 Ashok had moved around 8- 10 steps ahead after separating them and looked back, he saw Rajesh lying on the ground and bleeding. Though he stated that he did not see accused Rajender there at that time, presence of accused Rajender and his altercation with Rajesh about sometime earlier may be few seconds, which Ashok took to move 8-10 steps ahead, is incriminating factor against accused Rajender.
43. PW5 Neelam deposed about the presence of one another person Mukesh besides Rakesh and Ashok at the place of incident. As per Neelam, it was Rakesh, Ashok and Mukesh, who intervened into the quarrel and separated Rajesh from Rajender and his juvenile brother. Thereafter, they went home and after 5-10 minutes, she heard a noise coming from the side of house of Rajesh. Upon hearing such noise, she went towards the house of Rajesh and found Rajesh injured with knife and was bleeding. Though PW5 Neelam has not supported the case of prosecution inasmuch as she was an eye witness to the incident of stabbing, nevertheless she SC No 336/16 State Vs. Rajender Page 26 of 45 testified that when she came out of her house second time, she had seen Rajender along with his younger brother R (JCL) running away with a knife in his hand and having blood in his hands. In her cross- examination by Ld. Addl PP, PW5 Neelam denied seeing the incident but volunteered that she had seen brother of Rajender, who had caught hold of her brother Rajesh from behind and Rajender was pulling out knife from the portion below right armpit of Rajesh and thereafter both of them ran away. She was confronted with her statement E.PW5/P-1 where it was not so recorded. In her statement Ex.PW5/P-1, she has in fact stated seeing the incident of stabbing by accused Rajender in the right armpit of Rajesh, while R (JCL) was holding her brother Rajesh. Meaning thereby, PW5 Neelam has not completely denied seeing of the incident. She has improved upon her version recorded in statement Ex.PW5/P-1 but that is not such as to disbelieve the case of prosecution. The very fact that she testified to have seen accused Rajender and his younger brother R (JCL) running away with knife and her testimony that she had seen Rajender pulling out knife from the portion below right armpit of Rajesh are incriminating circumstances, which not only show presence of the accused at the place of incident but also point out towards the fact that it was only accused Rajender, who stabbed Rajesh.
44. At this stage, it is also relevant to discuss the medical evidence, which has been led by the prosecution. From the MLC of the deceased Rajesh Ex.PW2/A, one lacerated wound of size about 6 cm x 1.5 cm (depth to be estimated by Sr Surgery) on chest wall SC No 336/16 State Vs. Rajender Page 27 of 45 right lateral side was suffered by Rajesh. PW3 Dr. Akash Jhanjee had conducted postmortem on the dead body of Rajesh and opined cause of death as "hemorrhage and shock consequent upon stab injury of the liver. Stab injury was caused by some sharp cutting stabbing weapon with single edge sharp. All the injuries were antemortem in nature and fresh in duration." Therefore, Rajesh died due to hemorrhage and shock, which he suffered on account of stab injury. Dr. Akash Jhanjhee(PW3) has also given subsequent opinion Ex.PW3/B stating that injury mentioned in the postmortem report i.e. stab wound is possible by the examined knife or such similar weapon Meaning thereby, the testimony of PW1 Rakesh is also corroborated with medical evidence including postmortem of the deceased.
45. Ld. Amicus Curiae for the accused has raised number of contentions, which shall be dealt with hereinafter. He submitted that there are lot of contradictions in the testimonies of PW-1, PW-5 and PW-10 as to who made call at no. 100. He submitted that PW5 Neelam testified that she made call at no. 100 through mobile phone of her mother in law. It is also his contention that had Neelam made PCR call, she would have stated that her brother Rajesh was stabbed by accused Rajender. However, PCR form Ex.PW18/B records "kisi ne ek ladko chaku mar diya".
46. PW-5 Neelam testified to have made call at no. 100 from the mobile number 9654827412 of her mother-in-law. PCR form Ex.PW18/B also mentions that call was received from the aforesaid number. The contention of Ld. Amicus Curiae for the accused that SC No 336/16 State Vs. Rajender Page 28 of 45 since Neelam did not disclose the name of injured and assailant, same raises doubt about her presence at the place of incident, has no merit inasmuch the person may not be in proper state of mind after seeing her cousin brother in injured condition. Non-mentioning of name of the assailant and injured in the PCR call would not adversely affect the case of prosecution. Even no suggestion has been given to PW5 Neelam to the effect that she was not present at the place of incident and that is why she did not mention the name of injured and assailant in the call made at number 100. The submission that there is discrepancy in the testimony of PW-1 Rakesh and PW-10 Ashok, inasmuch as PW-10 Ashok testified that he asked some other person to make such call at no. 100, has no substance since requesting some other person to make call does not infer that such person had made call at. No. 100.
47. The next contention of Ld. Amicus Curiae for the accused that there is inconsistency in the statement of material witnesses, as to who took the injured to the hospital. It is submitted that as per PW1 Rakesh, Ashok took Rajesh to the hospital, while PW5 Neelam deposed during cross-examination that she did not remember as to who had taken Rajesh to the hospital whereas PW10 Ashok deposed that he was taking Rajesh to the Hospital but in the meantime, police reached and took Rajesh to hospital while he remained there. He pointed out that as per MLC, injured Rajesh was brought to the hospital by ASI Ved Parkash, (PW8) which is also deposed by the said witness (PW-8). The perusal of testimonies of aforesaid witnesses qua taking Rajesh to hospital does not show any SC No 336/16 State Vs. Rajender Page 29 of 45 inconsistency inasmuch as PW10 Ashok stated that he was taking Rajesh to the Hospital but in the meantime, police reached and took him to the hospital.
48. It is also contention of Ld. Amicus Curiae for the accused that conduct of Rakesh (PW1), real brother of Rajesh and Ashok, cousin brother of Rajesh, was unnatural as they had not accompanied Rajesh to the Hospital with ASI Ved Prakash (PW8). For this contention, he has relied upon the judgment of Hon'ble Apex Court reported as 2007 (7) SLT 414, State of Maharastra vs. Raju Bhaskar Potphode. The ratio laid down in this judgment is not applicable to the facts of the present case. In the instant case, PW1 Rakesh testified to have followed the accused persons to their residence so that they do not escape till they are handed over to Police. It is not the case where Rakesh (PW1) did not go to the hospital after handing over the accused persons to the police. PW-1 Rakesh has cooperated the police in investigation of the present case. In cross-examination, PW1 denied the suggestion that he did not make call at no. 100 because he was not present at the spot. He testified that he visited the hospital later i.e. at around 1.00-1.30 p.m. and also testified that he had left for hospital after about 1 to 1½ hours of Rajesh being removed to Hospital. Apparently, prior to leaving for the hospital, he had got the accused apprehended by the police and also assisted the police in carrying out investigation. He stated to have asked his cousin sister Neelam to make phone call to police and therefore his not making call at no. 100 does not reflect upon his conduct.
SC No 336/16 State Vs. Rajender Page 30 of 4549. It is also contention of Ld. Amicus Curiae for the accused that weapon of offence is not connected with the present case. He submitted that as per rukka, accused was apprehended with weapon of offence i.e. knife, whereas as per testimony of PW1 Rakesh, weapon of offence was recovered later by the police at the instance of accused. He submitted that this discrepancy is fatal to the case of prosecution. PW21 HC Satbir is a witness of arrest of accused Rajender, who testified that accused Rajender was having a blood-stained knife in his hand while he was detained by the public persons. PW24 SI Praveen Kumar (first IO) testified that HC Satbir and Ct. Rahul along with 2 accused persons Rajender and R (JCL) with knife met them at the spot. The testimony of police witnesses is consistent that the accused was apprehended with knife at the spot. No doubt that PW1 Rakesh has deviated from his statement in rukka, the said deviation is not material inasmuch as he stated that the accused was apprehended from his house which was at a walking distance of 2 minutes from the spot and accused got recovered the knife. Indeed, PW-1 Rakesh identified the knife in Court as Ex.PW3/Article-1 and testified that it is the same knife by which accused Rajender had inflicted injuries to Rajesh.
50. It is also contention of Ld. Amicus Curiae for the accused that scientific evidence i.e. FSL Result has not been of any benefit to the case of prosecution as the result with respect to the blood grouping on knife is "no reaction". He submitted that in the absence of any blood detected on knife, same cannot be connected to alleged stab injury inflicted to Rajesh. The said contention is SC No 336/16 State Vs. Rajender Page 31 of 45 without any merit inasmuch as PW-1 Rakesh is eye witness of the incident of stabbing of Rajesh by accused Rajender and has also identified the knife in Court.
51. It is also contention of Ld. Amicus Curiae for the accused that the Crime Team did not find mustard oil at the spot and i.e. why same was not lifted from the spot, which reflects that mustard oil had not fallen on the spot, as alleged by PW-1. In this regard, suffice it to state that no question was put to PW23 SI Karamvir Singh, Incharge of Mobile Crime Team as to whether any mustard oil was found spread on the floor or not. It is also relevant to point out that SI Karamvir Singh received an information at 11.45 p.m to reach at the spot and he reached the spot at about 12.20 a.m. (night time), whereas incident is alleged to have occurred at about 8.45 p.m. In such a time gap, the mustard oil, which is thin in texture than blood drops, might have spread on the road leaving possibility of its lifting negligible. Even otherwise, perusal of photographs Ex.PW13/1 to Ex.PW13/6 shows some area of surface of floor as dark, which is distinct from other area in the photos, so, the possibility of mustard oil falling on the floor and darkening the surface cannot be brushed aside. Further, lifting of blood was essential to match the same with blood on the knife, which was not requirement with regard to mustard oil falling on the floor. Therefore, non-lifting of mustard oil from the spot is of no consequence.
52. It is also contention of Ld. Amicus Curiae for the accused that Crime Team did not file any photos regarding apprehension of accused on the spot. PW23 SI Karamvir Singh in SC No 336/16 State Vs. Rajender Page 32 of 45 his cross-examination deposed that when he reached the spot, accused Rajender was present and he was in custody of local police. He further deposed that photographs of accused Rajender were not taken at his instance. As a matter of prudence, PW23 SI Karamvir Singh as an Expert to give report regarding scene of crime should have taken photographs of the accused, who was present at the spot when he visited the place of incident; however, said lapse on the part of PW-23 SI Karamvir Singh would not inure to the benefit of accused in the present case.
53. It is also contention of Ld. Amicus Curiae for the accused that IO has not cited public witnesses including owner/ customers present at Nirmal Provision Store and wife of the deceased, which raise doubt on the genuineness of the present case. Insofar as wife of the deceased is concerned, PW-1 Rakesh did not state in the statement Ex.PW1/A about the presence of wife of the deceased on the spot and therefore no fault can be attributed to the prosecution for not citing her as a witness. It is only during recording of evidence, PW-1 stated about presence of wife of deceased at the place of incident. Non citing of witness from Nirmal Provision Store is not such as to put dent on the case of prosecution inasmuch as the same would have only proved that accused Rajender had purchased mustard oil from the said shop whereas present dispute arose on account of spilling of mustard oil on the floor due to collision of accused Rajender with Rajesh.
54. Apparently, no public witness has been joined in the investigation though their presence at the spot is clear from the SC No 336/16 State Vs. Rajender Page 33 of 45 testimony of PW21 HC Satbir, PW14 ASI Brahmjeet Singh, PW8 ASI Ved Parkash and PW 24 SI Praveen (first IO). PW 24 SI Praveen (first IO) deposed in his cross-examination that when he reached the spot at about 9.25 p.m., public persons were present but he did not record statement of any public person. He testified that he reached the hospital at about 9.40 p.m. and remained there for about 2 hours. The very fact that IO left the spot within 10-15 minutes and rushed to the hospital, his non-recording of statement of public persons is plausible and does not go to root of the case of prosecution.
55. It is also contention of Ld. amicus Curiae that knife was not seized by the IO at about 9.25 p.m. but the same was seized after returning from hospital at about 12.00 midnight, thus tampering with alleged knife cannot be ruled out. As IO SI Praveen Kumar stated to have rushed to the hospital within 10-15 minutes of reaching at the spot, non-seizing of knife does not impute any malafide on the part of the IO. Further as per FSL result, no reaction was found on the knife with respect to blood grouping. Had the IO done tampering with the knife, blood would have been found on the knife in FSL result.
56. It is also contention of Ld. Amicus Curiae that PW1 stated in his examination in chief that he tied the injury of his brother Rajesh with a cloth, but no such cloth was seized. No question was asked to the witness about the cloth with which he tied the injury of Rajesh. Since Rajesh was removed to hospital immediately after the incident, so, possibility of finding such cloth on the spot is almost ruled out. PW-2 Dr. Rabindra Kumar had examined Rajesh at about SC No 336/16 State Vs. Rajender Page 34 of 45 9.21 p.m. in Dr. Hedgewar Hospital. Nothing was asked to this witness as to whether injury of Rajesh was tied with any cloth. Therefore, there is no merit in the contention of Ld. Amicus Curiae that non-seizure of such cloth by the IO dispute the presence of Rakesh at the spot.
57. Ld. Amicus Curiae for the accused further submitted that injured Rajesh did not disclose the name of assailant though he was conscious and oriented, which reflects that accused was not the assailant. PW8 ASI Ved Parkash also deposed in his examination in chief that injured was conscious and introduced himself as Rajesh. However, he did not aver anything in his examination in chief that he had asked about the name of assailant from the injured during transit of the injured to the hospital. PW8 ASI Ved Prakash was also not cross-examined as to whether he asked the name of assailant from injured Rajesh. In MLC Ex.PW2/A, patient/injured himself gave the history of assault without mentioning the name of assailant. Non- disclosure of name of assailant in the MLC does not infer that it was somebody else who caused him injury. Further, it cannot be said that since the patient was conscious, he was in a position to tell details of the incident to the Doctor or to PW8 ASI Ved Prakash, for the simple reason that MLC records that pulse of Rajesh as not palpable and his BP as not recordable at the time of his admission in the hospital, which shows critical condition of the patient Rajesh.
58. Ld. Amicus Curiae for the accused also contended that there was only one injury on the person of deceased, which is lacerated wound and same could not be caused by a sharp object. It SC No 336/16 State Vs. Rajender Page 35 of 45 is also his contention that as per MLC, deceased sustained one lacerated wound 6 cm x 1.5 cm on chest wall right lateral side, however, PW3 Dr Akash Jhanjee mentioned the size of injury different from what is mentioned in the MLC. Regarding size of injury, suffice it to state that it is specifically mentioned in the MLC that depth of injury to be estimated by Sr Surgery and therefore, change in size of injury is normal. Even otherwise, injury can't be measured exactly at the time of initial admission of patient in the hospital and is subject to further evaluation and treatment. Further, in order to connect injury with the weapon of offence i.e. Knife, Doctor Akash Jhanjhee (PW3) had given subsequent opinion Ex.PW3/B stating that injury mentioned in the postmortem report i.e. stab wound was possible with the examined knife or such similar kind of weapon.
Defence of the accused :
59. It is necessary to discuss the defence taken by the accused wherein he stated that he was not present at the place of incident and was lifted from his place of work at Kashmere Gate where he was doing job of car decorator. To prove the defence, the accused has examined DW-1 Bablu who deposed that on 14.11.2013, accused Rajender was with him for the entire day and at about 10.00 p.m., when they were closing their workshop, 2-3 police officials came and they took Rajender with them for some enquiry. In cross-examination by Ld. Addl PP, DW-1 deposed to have not informed any police official that accused Rajender was with him for entire day on 14.11.2013 and also did not inform the family members SC No 336/16 State Vs. Rajender Page 36 of 45 of Rajender in this regard. Had the accused remained with him during entire day on 14.11.2013, he would have definitely informed the police in this regard. DW-1 did not disclose in his testimony about the name of workshop where he was working with the accused. Even accused has not mentioned name of workshop or name of his employer in his statement under Section 313 Cr.P.C. DW-1 has not produced any proof of his working at Kashmere Gate. Same is the position of accused. Therefore, testimony of DW-1 does not inspire any confidence.
60. It is also pertinent to mention herein that accused has disclosed his residential address as E-80/526, Rajiv Camp, Krishna Market Jhuggi, Jhilmil Colony, Delhi and the incident had taken place in the same locality. It is not the case of accused that he was not residing in the locality at the relevant time. Neither any ill will nor any motive or hostility has been imputed by the accused upon PW1 Rakesh to depose against him. Thus, there was no reason for PW1 eye witness who is real brother of Rajesh, to falsely implicate accused Rajender.
Cumulative effect of the evidence coupled with legal position
61. From the evidence brought on record by the prosecution, it has been established beyond reasonable doubt that the accused Rajender had inflicted stab injury below right armpit of injured Rajesh, who succumbed to said injury in the hospital.
62. Now the relevant question which arises for consideration is whether the accused is liable for offence under SC No 336/16 State Vs. Rajender Page 37 of 45 Section 302 IPC or under Section 304 IPC. Ld. Amicus Curiae for the accused has urged that the accused at the most is liable to be convicted under Section 304(II) IPC since as per case of prosecution the incident happened without pre-meditation on sudden provocation and thus accused had no intention that single stab injury would result into death of Rajesh. He has relied upon judgment of Hon'ble Apex Court reported as 2006 (11) SCC 420 "Kailash vs. State of Madhya Pradesh" and 1996 AIR(SC)2741 "Ranjha and anr Vs State of Punjab", wherein conviction of the appellant was altered from Section 302 IPC to Section 304 (II) IPC.
63. The moot question is whether the case falls under Section 302 IPC or under section 304 IPC. Section 299 of IPC recognizes three kinds of culpable homicides. The grave form of culpable homicide is murder, which is dealt with under Section 300 IPC; second culpable homicide is prescribed under part I of Section 304 IPC and third kind of culpable homicide is covered under part II of Section 304 IPC. In order to bring a case under Section 300 IPC, prosecution is duty bound to prove the following conditions:
(a) That the act which causes death is done with the intention of causing death or is done with intention of causing a bodily injury; and
(b) That the injury intended to be inflicted is sufficient in ordinary course of nature to cause death or;
(c) If the person committing the act was having knowledge that such act was so imminently dangerous that it must in all probability would cause death or such bodily injury as is likely to cause death and commits such act or bodily injury without any excuse for incurring the risk of causing death.
64. Meaning thereby, in order to bring a case within the SC No 336/16 State Vs. Rajender Page 38 of 45 purview of definition of murder, the prosecution has to establish the intention or knowledge of the accused which satisfy the aforesaid laid down criterion of section 300 IPC. To proceed further, it is necessary to peruse the exceptions to Section 300 IPC, which deals with " when culpable homicide is not murder". As per contention of Ld. Amicus Curiae for the accused, present case falls within exception 4, which is reproduced hereunder as:-
"Exception 4.---- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
65. The aforesaid exception mandates that the four requirements must be satisfied to invoke this exception which are as under :-
(a) There was a sudden fight;
(b) The sudden fight was without premeditation;
(c) It was done in a heat of passion;
(d) The offender had not taken any undue advantage or acted in a cruel or unusual manner.
66. Adverting to the facts of present case, quarrel arose all of a sudden between Rajesh and accused Rajender without any premeditation on account of collision, which led to physical altercation and in a heat of passion, accused went back after giving threat to the Rajesh and returned with a knife and caused stab injury below right armpit of Rajesh, who succumbed to injury in the SC No 336/16 State Vs. Rajender Page 39 of 45 Hospital.
67. From the facts of the case, it is discernible that there was no previous animosity between the deceased Rajesh and accused. Since the accused had left the spot in a fit of anger, which is reflected from the threat extended to Rajesh and his immediate return to the spot with a knife shows that there was no sufficient time to cool off the anger. Thus, he caused stab injury to Rajesh in a heat of passion. Accused had inflicted single stab injury on the person of Rajesh, which shows that he had not taken undue advantage or acted in a cruel or unusual manner. Had accused intended to cause death of Rajesh, he would have given more stab blows to Rajesh, which is not the case herein. Meaning thereby, the accused was not having intention of causing such bodily injury, which was sufficient in ordinary course of nature to cause death or he was not having knowledge that bodily injury inflicted by him was so imminently dangerous that it must in all probability is likely to cause death. Thus, this Court is of the firm view that the present case does not fall within the definition of murder as prescribed under Section 300 IPC, which is punishable under Section 302 IPC. However, all the ingredients of exception 4 to Section 300 IPC stand satisfied.
68. The issue which is to be decided at this stage is whether case falls within Part I or Part II of Section 304 IPC. Section 304 Part I is applicable if the act by which death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, whereas part II of Section 304 IPC is applicable if the act is done with the knowledge that it is likely to SC No 336/16 State Vs. Rajender Page 40 of 45 cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. That particular intention has to be gathered from the circumstances of the given case and if from the circumstances of the case, it can be inferred with reasonable certainty that the assailant did that act with the intention to cause such bodily injury as is likely to cause death, then such act would be punishable under Section 304 (I) IPC. But if the Court cannot arrive at a conclusion from the circumstances without reasonable certainty that accused was having an intention to cause such bodily injury as is likely to cause death and the act was done with the knowledge only that it is likely to cause death but without any intention thereof, the offence will be punishable with Section 304 (II) IPC.
69. In order to ascertain applicability of the relevant part of Section 304 IPC, certain factors have to be kept in mind, which have been mentioned exhaustively mentioned in the judgment of Hon'ble Apex Court in the case of Pulicherla Nagaraju @ Nagaraja Vs State Of A.P., (2006) 11 SCC 444 as :-
"18. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There SC No 336/16 State Vs. Rajender Page 41 of 45 may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-
meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."
70. The Hon'ble Apex Court in S.L.P. (Crl.) No.6287 of 2011 SC No 336/16 State Vs. Rajender Page 42 of 45 titled as Ankush Shivaji Gaikwad Versus State of Maharashtra, decided on 03.05.2013 has observed as under:-
"20. In Jagrup Singh v. State of Haryana (1981) 3 SCC 616 the accused had given a blow on the head of the deceased with the blunt side of a gandhala during a sudden fight causing a fracture to the skull and consequent death. This Court altered the conviction from Section 302 to Section 304, Part II IPC placing reliance upon the decision in Chamru Budhwa v. State of Madhya Pradesh AIR 1954 SC 652 in which case also the exchange of abuses had led both the parties to use lathis in a fight that ensued in which the deceased was hit on the head by one of the lathi blows causing a fracture of the skull and his ultimate death. The accused was convicted for the offence of culpable homicide not amounting to murder under Section 304, Part II of the IPC.
21. Reference may also be made to the decisions of this Court in Sarabjeet Singh and Ors. v. State of Uttar Pradesh (1984) 1 SCC 673, Mer Dhana Sida v. State of Gujarat (1985) 1 SCC 200 and Sukhmandar Singh v. State of Punjab AIR 1995 SC 583 in which cases also the cause of death was a fracture to the skull in a sudden fight without premeditation. The Court altered the conviction from Section 302 IPC to Section 304, Part II of IPC.
22. Though the accused had inflicted only one injury upon the deceased, the fact that he had attempted to stab him a second time was taken as an indication of the accused having any intention to kill for the purpose of Section 304 Part I, IPC in Kasam Abdulla Hafiz v. State of Maharashtra (1998) 1 SCC 526....."
71. In the facts of the given case, the evidence led by the prosecution does not disclose that the accused was having any SC No 336/16 State Vs. Rajender Page 43 of 45 intention to cause death or to cause such bodily injury as it likely to cause death of Rajesh. The manner in which stab injury was inflicted on the person of deceased Rajesh, the weapon used to inflict the same and the circumstances in which the stab injury was inflicted, do not suggest that the accused had an intention to kill the deceased but his knowledge that the injury inflicted by him was likely to cause death of the deceased, is clearly discernible from the case of prosecution, which would bring the case appropriately fall within the ambit of Section 304(II) IPC.
72. In so far as charge under section 27 Arms Act is concerned, the prosecution has not led any evidence or placed any notification in this regard. However, this court can take judicial notice of notification No. F/13/451/79-Home (G) 29.10.1980 issued by Delhi Administration. As per the aforesaid notification, no person in the Union Territory of Delhi shall manufacture, sale or possess for sale or test spring actuated knives, gararidar knives, bottondar knives and other knives which open or close with any other mechanical device with a sharp edged blade of 7.62 cms or more in length and 1.72 cms or more in breadth in the Union Territory of Delhi", unless he holds a license issued in accordance with the provisions of the Arms Act, 1959 and Arms Rules, 1962 framed here under, with effect from the publication of Notification of Delhi Gazette.
73. A careful perusal of the notification would reveal that the length and breadth of the blade has been specified only in relation to all spring actuated knives, gararidar knives, bottondar knives and other knives which open or close with any other mechanical device SC No 336/16 State Vs. Rajender Page 44 of 45 with a sharp edged blade of 7.62 cms or more in length and 1.72 cms or more in breadth in the Union Territory of Delhi. The knife recovered from the possession of accused Rajender is having length of blade as 5.8-inch, length of handle as 5.2 inch and width of blade is 3.5 cm i.e. much more than the prescribed size. However, it is not proved on record whether the knife recovered from the accused was spring actuated knife, gararidar knife, bottondar knife and other knife which open or close with any other mechanical device and thus the prosecution has failed to establish that the accused was found in possession of a knife in contravention of aforesaid Government notification. Therefore, accused Rajender is acquitted for the offence punishable u/s. 27 Arms Act.
74. In view of foregoing discussion, the prosecution has been successful in proving the case beyond reasonable doubt against the accused Rajender for the offence punishable under section 304(II) IPC and not under Section 302 IPC. Accordingly, Accused Rajender is held guilty under Section 304(II) IPC and is convicted thereunder.
Digitally signed by MANJUSHA MANJUSHA WADHWA
WADHWA Date: 2020.02.26
16:09:07 +0530
Announced in the open Court (MANJUSHA WADHWA)
Dated: 25.02.2020 Addl. Sessions Judge-3 (Shahdara)
Karkardooma Courts, Delhi
SC No 336/16 State Vs. Rajender Page 45 of 45