Delhi District Court
Cbi vs . Farman & Ors. on 3 September, 2019
IN THE COURT OF SHRI SANDEEP YADAV
ADDL. SESSIONS JUDGE02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
SC No. 1398/16
FIR No. RC01(S)/2014/SCIII/ND
U/s: 304 Part II rw Section 34/342 & 201 IPC
State
Versus
1. Farman
S/o. Mr. Fasi Khan
R/o. Ashram Hari Nagar, Subzi Mandi
Delhi.
Permanent at : Vill. Narupura, PO Khas
PS Pali Mukimpur, Distt. Aligarh
U.P.
2. Pawan
S/o. Late Ram Prakash
R/o. C115, 3rd Floor
Lajpat NagarII
New Delhi.
Permanent: C/o. Dr. Ishwar Singh
Anaesthialogist, Dharamkunj Society
SectorIX, Rohini, New Delhi.
3. Sunder
S/o. Late Ram Prakash
R/o. C115, 3rd Floor
Lajpat NagarII
RC01(S)/2014/SCIII/ND 1/85
CBI Vs. Farman & Ors.
New Delhi.
Permanent: C/o. Dr. Ishwar Singh
Anaesthialogist, Dharamkunj Society
SectorIX, Rohini, New Delhi.
4. Sunny Uppal
S/o. Late Subhash Uppal
R/o. S/o. Late Ram Prakash
R/o. C115, 3rd Floor
Lajpat NagarII
New Delhi.
Permanent: C/o. Dr. Ishwar Singh
Anaesthialogist, Dharamkunj Society
SectorIX, Rohini, New Delhi.
..... Accused
Date of Institution : 02.05.2014
Date of Arguments : 13.08.2019
Date of Judgment : 03.09.2019
Judgment : Convicted
JUDGMENT
1. Prosecution version unfolded during trial is that on 29.01.2014, Lokam Lulu (PW6) went to the house of his friend Nido Tania at Green Park, New Delhi. Lokam Rikam (PW5), cousin of Lokam Lulu (PW6) and Lomki Nalo (PW11) also came there. Nido Tania received telephonic call from sister of Larken Doye and she told that her brother Larken Doye was seriously ill and was to be taken to hospital. Thereafter, Nido Tania, Lokam Lulu (PW6) and Lomki Nalo (PW11) left for the house RC01(S)/2014/SCIII/ND 2/85 CBI Vs. Farman & Ors.
of Larken Doye who was residing at A39, Lajpat Nagar, New Delhi. Since, they were not aware of exact of location of residence of Larken Doye, they divided themselves into two groups in order to search the house of Larken Doye. Nido Tania and Lokam Lulu (PW6) were in one ground while Lokam Rikam (PW5) and Lomki Nalu (PW 11) were in other group and they started searching for the address of Larken Doye. Nido Tania and Lokam Lulu (PW6) went to the shop being run under the name and style of Rajasthan Paneer Bhandar. Four persons were sitting inside the said shop. Nido Tania enquired from them about House No. A39, Lajpat Nagar, New Delhi. Accused Farman was present inside the said shop alongwith three of his associates (juvenile's in conflict with law). On seeing Nido Tania, those boys starting laughing at him and made insulting racist remarks against him and Lokam Lulu. Nido Tania told accused Farman that his friend requires urgent medical assistance and they had to reach at his address immediately to attend him. Accused Farman and his associates kept on laughing at Nido Tania as a result of which Nido Tania got annoyed and broke the glass of counter of Rajasthan Paneer Bhandar Shop with his right fist. Thereafter, accused Farman and his three associates (juveniles in conflict with law) came out, accused Farman brought one stick 1 ½ ft long from inside the shop and started beating Nido Tania with it. Nido Tania tried to prevent the attack by putting forward his arm and in the process, he suffered injuries on his arm and the stick was broken. After that, Farman started beating Nido Tania with fist and other three boys also started beating Nido Tania. Lokum Lulu tried to save his friend Nido Tania but he was pushed away by one of the associates of accused Farman and in the process, Lokum Lulu also RC01(S)/2014/SCIII/ND 3/85 CBI Vs. Farman & Ors.
suffered injuries on his forehead. Nido Tania felt sorry for breaking the counter glass of the shop and those four boys asked Rs.10,000/ as compensation and ultimately, the matter was settled for Rs. 7,000/. Nido Tania paid the settled amount to them. Thereafter, Nido Tania and Lokam Lulu (PW6) noticed one ambulance parked on the road side and when they went towards the ambulance, they found Lokum Rikam (PW5) and Lomki Nalo (PW11) standing near ambulance and they told Nido Tania and Lokum Lulu (PW6 ) that they have obtained information about H.No. A 39, Lajpat Nagar. Lokum Lulu (PW6) told them about the quarrel which had taken place with Nido Tania. At that time, Nido Tania was bleeding from his right fist and was having bruises on his face including forehead. When all of them i.e. Nido Tania, Lokum Lulu (PW6), Lokum Rikam (PW5) and Lomki Nalo (PW11) were standing near the ambulance, accused Farman and his associates and several other persons including accused Pawan and Sundar came to them. Accused Pawan and Sunder started bashing Nido Tania and when Nido Tania and his friends felt sorry, those persons stopped beating Nido Tania. Subsequently, Lokum Lulu, Lokum Rikam and Nido Tania went upstairs and brought Larken Doye down and he was sent to hospital. Lokum Lulu, Lokum Rikam, Lomki Nalo and Nido Tania took different route to avoid the shop of accused Farman. As they were going towards main road, they found group of people gathered near BSES office. Those persons stopped Nido Tania and his friends and one of those persons namely Sunny Uppal passed racist remarks against Nido Tania and slapped him on his face. Accused Farman, his three associates (juvenile's in conflict with law), Pawan and Sunder RC01(S)/2014/SCIII/ND 4/85 CBI Vs. Farman & Ors.
were also in that group and they pointed out towards Nido Tania saying that he was the same person who had broken the counter glass of the shop of Farman. Thereafter, accused Pawan, Sunder and Farman again gave beatings to Nido Tania by fists. In the meanwhile, police was called and PCR van came there and took away Nido Tania as well as Farman. Friends of Nido Tania namely Lokum Lulu, Lokum Rikam and Lomki Nalo were asked by police officials to return to their house.
2. On the next date i.e. 30.01.2014, Nido Tania succumbed to injuries inflicted by accused Farman, Pawan, Sunder and Sunny Uppal. Nida Tania was declared brought dead by the attending doctor at AIIMS Hospital at 5:10 PM on 30.01.2014. Information about death of Nido Tania was conveyed to PS Lajpat Nagar and thereafter, SI Amit Kumar (PW13) alongwith Ct. Anil reached AIIMS, collected MLC of Nido Tania. SI Amit Kumar wrote a letter to CMO AIIMS Hospital for preserving the body of Nido Tania. On 31.01.2014, after discussing the matter with the then SHO PS Lajpat Nagar, SI Amit Kumar wrote a letter Ex. PW13/B to the Medical Superintendent, AIIMS for constitution of Board of Doctors for conducting postmortem on the body of deceased. Postmortem on the dead body was conducted on 31.01.2014 and after postmortem, dead body was handed over to the relatives of deceased.
3. In the evening of 31.01.2014, Lokum Lulu (PW6) gave a complaint Ex. PW3/A which was marked to SI Amit Kumar (PW 13) who made endorsement/report on Ex. PW3/A and recommended registration of RC01(S)/2014/SCIII/ND 5/85 CBI Vs. Farman & Ors.
FIR under Section 302 IPC as well as under Section 3 (x) of The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and consequently, FIR Ex. PW13/H was registered and investigation was conducted by Mr. Shankar Choudhary, the then ACP Lajpat Nagar. After registration of FIR, Investigating Officer Mr. Shankar Choudhary, the then ACP Lajpat Nagar visited the place of occurrence on 31.01.2014 at 8 PM alongwith complainant Lokam Lulu and ASI Pritam Singh and prepared site plan Ex. PW20/A at the instance of Lokam Lulu.
4. During investigation accused Farman was arrested on 03.02.2014 vide arrest memo Ex. PW13/Q. Accused Pawan was arrested on the same day at 7 PM vide arrest memo Ex. PW13/R while accused Sunder was arrested on 03.02.2014 at 7:20 PM vide arrest memo Ex. PW13/S. One mobile phone was recovered from the possession of accused Pawan. The mobile phone recovered from accused Pawan was containing photographs of place of occurrence in whatsapp account and print out of these five photographs were taken out and were identified by PW 13 SI Amit Kumar as Ex. PW6/A, Ex. PW6/B, Ex. PW6/C, Ex.PW6/D, Ex.PW13/U and Ex.PW13/V. Letter dated 03.02.2014 was addressed to FSL by the then DCP (SouthEast) and vide this letter Ex. PW20/G, four articles were sent for examination of viscera of deceased Nido Tania to find out as to whether it contained any poisonous substance/narcotics/drug substance. CFSL result was received on 08.02.2014. Accused Sunny Uppal was arrested on 10.02.2014 vide arrest memo Ex.PW13/W. Applications were moved for conducting TIP of all accused persons and all accused RC01(S)/2014/SCIII/ND 6/85 CBI Vs. Farman & Ors.
persons refused to participate in the TIP. Efforts were made to search the danda/stick used in the commission of crime but the said danda/stick could not be recovered. On 2021.02.2014, investigation of this case was transferred to Central Bureau of Investigation (CBI). Remaining investigation was conducted by PW 21 Mr. Shyam Lama, Deputy Superintendent of Police, CBI, SCIII, New Delhi. After conclusion of investigation, all the aforesaid accused persons were charge sheeted under Section 304 II rw Section 34/343/201 IPC & u/s. 3 (i)(x) of The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.
5. After committal proceedings were completed, arguments on charge were heard and all accused persons were charged under Section 304/34 IPC. All the accused persons pleaded not guilty which necessitated the trial. Prosecution examined 21 witnesses to substantiate the charge against accused persons, material witnesses being PW 5 Lokum Rikam, PW 6 Lokum Lulu, PW 11 Lomki Nalo, PW 13 SI Amit Kumar and PW 20 Shankar Choudhary. All accused persons were examined under Section 313 Cr.PC wherein entire incriminatory evidence and circumstances were put to accused persons. Accused persons claimed innocence and denied all the incriminatory evidence. No defence witness was examined.
6. Nido Pavitra (PW1) and CBI approached Hon'ble Delhi High Court Under Section 482/397 Cr.PC against Order on Charge dated 01.10.2014 whereby the Hon'ble High Court declined the farming of charge U/s. 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes Prevention RC01(S)/2014/SCIII/ND 7/85 CBI Vs. Farman & Ors.
of Atrocities Act. The said petition was dismissed by Hon'ble Delhi High Court vide order dated 13.09.2018.
7. Arguments addressed at bar by Mr. A.K. Singh, learned Special Public Prosecutor for CBI, Mr. Rajender Singh with Mr. N.K. Kureja, learned counsels for accused Sunny Uppal, Mr. S.K. Sharma, learned counsel for accused Pawan and Sunder as well as Mr. Firoz Khan Ghazi, learned counsel for accused Farman have been heard at length.
8. I have carefully considered the rival submissions and perused the record.
9. Mr. A.K. Singh, learned Special Public Prosecutor for CBI, referred to testimonies of Lokam Rikam (PW5), Lokam Lulu (PW6) and Lomki Nalo (PW11) submitting that their testimonies established that Nido Tania visited Lajpat Nagar on the day of incident and this part of their testimonies is not challenged in cross examination. Mr. A.K. Singh further submitted that PW 4 SI Raj Kumar Hooda proved the scuffle between Nido Tania and Farman at A83, Lajpat Nagar. Mr. A.K. Singh further submitted that nine injuries on the body of deceased are mentioned in the postmortem report and according to him, these injuries collectively resulted in the death of deceased. Mr. A.K. Singh submitted that PW 19 V.B. Ramteke, Sr. Scientif Officer, CFSL. New Delhi, who examined exhibited received in this case including viscera deposed that exhibit 1, 3A,3B, 3C and 3D gave negative test for the presence of common poison including narcotic drug and thus, the defence of accused that deceased Nido Tania died due to RC01(S)/2014/SCIII/ND 8/85 CBI Vs. Farman & Ors.
poisoning or consumption of drug was demolished. Mr. A.K. Singh, learned Special Public Prosecutor for CBI, submitted that plea of alibi taken by accused Sunny Uppal while cross examining PW 6 Lokum Lulu has not been proved by him. Mr. A.K. Singh further submitted that no defence evidence was adduced by accused to prove that Nido Tania died due to over dose of drug. Mr. A.K. Singh submitted that there is marked difference between the case set up by accused Sunny Uppal in cross examination of PW 5 Lokam Rikam and in the cross examination of PW 6 Lokum Lulu.
10. Mr. A.K. Singh, learned Special Public Prosecutor for CBI, submitted that all the three places of incident viz. Rajasthan Paneer Bhandar, place where ambulance was parked and BSES office are very close to each other and the incident happened within the time span of 15 minutes and that is the explanation for PW 6 Lokum Lulu for not mentioning all those three places in his complaint Ex. PW3/A.
11. Mr. A.K. Singh submitted that accused persons have not given any reason as to why PW 5 Lokum Rikam and PW 6 Lokum Lulu would falsely implicate them. Mr. A.K. Singh lastly submitted that prosecution has proved the case against accused persons beyond reasonable doubt and it is a fit case for conviction of accused person. Mr. A.K. Singh, learned Addl. Public Prosecutor for CBI relied upon following judgment :
(i) Banti @ Guddu Vs. State of Madhya Pradesh decided by Hon'ble Supreme Court of India on 04.11.2003.
RC01(S)/2014/SCIII/ND 9/85
CBI Vs. Farman & Ors.
(ii) Malhu Yadav & Ors. Vs. State of Bihar - Supreme Court of
India on 01.05.2002.
(iii) 1978 Crl.L.J. 997 - State of Uttar Pradesh Vs. Babboo & Ors.
(iv) (2014) 12 SCC 383 Tara Singh Vs. State.
12. Submissions of Mr. Firoz Khan Ghazi, learned counsel for accused Farman, may be noted down as under :
(a) As per PW 4 SI Raj Kapoor Hooda, accused Farman presented himself as a victim and hence, no criminality can be attached him. It can be inferred from the testimony of PW 6 Lokum Lulu that deceased Nido Tania was short tampered. There is no mention of wooden stick/danda in the FIR. The version given by PW 6 Lokam Lulu in his examination in chief is entirely different from the version given in the FIR.
One female friend of deceased, who was with him, when he last went to bed was examined by Investigating Officer PW 21 Mr. Shyam Lama, Deputy Superintendent of Police, CBI SCIII, New Delhi but her statement was not filed with the charge sheet and explanation given by Investigating Officer in this regard is not convincing. Thus, a vital piece of evidence was withheld from the Court. Some of the witnesses mentioned in the deposition of PW 21 Mr. Shyam Lama were cited as witnesses in the charge sheet but not examined during trial and thus, an adverse inference has to be drawn against prosecution. No injury was found on the head of deceased and thus, there is no connection between injuries and death of deceased. Result of histopathological examination has not been considered in final opinion Ex. PW 2/DB given by medical board regarding cause of RC01(S)/2014/SCIII/ND 10/85 CBI Vs. Farman & Ors.
death of deceased. The tetanus injection was given by an unqualified person and that can be the cause of death of deceased Nido Tania.
13. Mr. Firoz Khan Ghazi, learned counsel for accused Farman relied upon following judgments:
(i) AIR 2012 SC 3104State through P.S.Lodhi Colony New Delhi vs. Sanjeev Nanda.
(ii) AIR 2004 SC 77 - Ramakant Rai vs. Madan Rai and Others.
(iii) 2013 (5) MPHT 308 - Man Singh Vs. State of Madhya Pradesh.
(iv) AIR 1973 SC 2773 - Kali Ram Vs. State of Himachal Pradesh.
(v) 1979 AIR 387 - K.Gopal Reddy vs. State of Andhra Pradesh.
(vi) AIR 2001 SC 2328 - Takhaji Hiraji Vs Thakore Kuber Sing Chaman Sing and Ors.
(vii) AIR 1959 SC 484 Narain and Others Vs. State of Punjab.
(viii) AIR 1973 SC 501 Thulia Kali vs. State of Tamil Nadu
(ix) Krishnegowda and Ors. Vs. State of Karnataka, decided by Hon'ble Supreme Court on 28.03.2017.
14. Main submissions of Mr. S.K. Sharma, learned counsel for accused Pawan and Sunder, may be summarized as under :
(a) There is no evidence that during the intervening night between date of incident and death of Nido Tania, deceased Nido Tania was having any discomfort.
(b) No search was conducted at the house of deceased from
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CBI Vs. Farman & Ors.
where he was taken to the hospital and brought dead to find out any foul play.
(c) Injuries to accused Farman have not been explained by prosecution.
(d) As per the deposition of PW 4 SI Raj Kapoor Hooda, deceased Nido Tania and Farman were taken to Police Station from A83, Lajpat Nagar and hence, prosecution version that Nido Tania was assaulted at three places by accused persons is falsified.
(e) There is no evidence that accused Pawan and Sunder knew accused Farman before the incident and hence, there was no meeting of mind.
(f) The stick mentioned in the deposition of PW 6 Lokam Lulu is not referred to in the complaint Ex. PW3/A.
(g) PW 1 Nido Lulu deposed that she was scheduled to take Nido Tania to hospital which shows that Nido Tania was suffering from some disease.
(h) The site plan Ex. PW20/A prepared by 1 st Investigating Officer Mr. Shankar Choudhary, the then ACP Lajpat Nagar at the instance of PW 6 Lokam Lulu does not depict all three places of incident. PW 6 Lokam Lulu did not tell the Investigating Officer about two places of incident other than A83, Lajpat Nagar.
(i) Presence of eye witness viz. Lokam Rikam (PW5), Lokam Lulu (PW6) and Lomki Nalo @ Taki (PW11) at the place of occurrence is cooked up as they did not accompany Larken Doye to the hospital and hence, they exhibited unnatural conduct.
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CBI Vs. Farman & Ors.
(j) No single injury on the head of deceased Nido Tania has
been reported on the postmortem report.
(k) Name of tetanus injection administered to deceased was
not obtained by Investigating Officer nor name of said injection was sent to Medical Board which conducted postmortem on the body of deceased.
(L) The version given by PW 5 Lokum Rikam that PCR van took accused Farman and deceased Nido Tania from the place where ambulance was parked is contrary to the deposition of PW 4 SI Raj Kapoor Hooda.
(m) Statements of persons operating the ambulance were not recorded.
(n) Leading questions were put to PW 5 by learned Special Public Prosecutor for CBI as regards identity of accused Pawan and Sunder which is not permissible in law.
(o) Third place of occurrence i.e. near BSES office is not mentioned by PW 6 Lokum Lulu in his statement Ex. PW6/DB dated 05.02.2014.
(p) Prosecution has not explained as to why site plan of the place where ambulance was parked or the place near BSES office where third incident allegedly happened was not prepared.
15. Mr. S.K. Sharma, learned counsel for accused Pawan and Sunder, relied upon following judgments :
(i) Dev Raj Vs. State of Punjab - AIR 1992 SC 950.
(ii) State of Karnataka Vs. Shivalingaiah @ Handigidda -
RC01(S)/2014/SCIII/ND 13/85
CBI Vs. Farman & Ors.
AIR 1988 SC 115.
(iii) Mahender Kumar Vs. State - 99 (2002) DLT 450.
(iv) Anil Kumar Vs. State of Rajasthan - CA No. 489/2012 decided on 25.07.012 by Rajasthan High Court.
16. Sh. Rajender Singh with Mr. N.K. Kukreja, learned counsels for accused Sunny Uppal raised following points and contentions during course of arguments :
(a) PW 20 Mr. Shankar Choudhary, 1st Investigating Officer admitted in cross examination that complaint was given by PW 6 on 30.01.2014 but the said complaint has not been filed with the charge sheet.
(b) The third incident which allegedly happened near BSES office is not mentioned in the charge sheet.
(c) Ashish, Bhatia and Arjun were cited as witnesses in the charge sheet but they were not examined and hence, an adverse inference should be drawn against prosecution that had these persons been examined, they would have supported the case of accused.
(d) Lokam Rikam (PW5), Lokam Lulu (PW6) and Lomki Nalo @ Taki (PW11) in their statements recorded by police on 05.02.2014 have not mentioned the incident that happened near BSES office and hence, the story of incident near BSES office is concocted one.
(e) Accused persons were prejudiced due to non examination of PW 11 Lomki Nalo @ Taki and reference was made to the statement of PW 11 recorded under Section 161 Cr.PC.
17. Mr. Rajinder Singh and Mr. N.K.Kukreja, learned counsels for RC01(S)/2014/SCIII/ND 14/85 CBI Vs. Farman & Ors.
accused Sunny Uppal relied upon the following judgments:
(i) 1994 JCC 80 Jaspal Singh vs. State (Delhi Administration) wherein it was held that it is not the duty of the prosecution to secure the conviction by adopting all means, fair or foul. The duty of the prosecution is to act fairly so that truth may come out.
(ii) 1996 (3) CC Cases 141 (HC) Raj Singh Vs State.
(iii) AIR 1993 SC 2644 State of Andhra Pradesh vs. Punati Ramulu and Others. In this case it was held that testimony of interested witnesses could not be relied upon in absence of strong corroborative evidence of clinching nature.
(iv) (2016) 3 SCC (Cri) 211 Shahid Khan vs. State of Rajasthan wherein it was held that, delay in recording the statements cast a serious doubt about the fact that witnesses are eyewitnesses to the occurrence. In the present case one does not find any undue delay in recording the statement of witnesses.
(v) 2004 SCC (Cri) 2032 Vijay Bhai Bhana Bhai Patel Vs. Navnit Bhai Nathu Bhai Patel and others.
(vi) AIR 1976 Supreme Court 2488 State of Orrisa vs. Brahmananda Nanda wherein eyewitness did not disclose the name of assailant for a day and a half of the incident and the explanation offered for non disclosure was unbelievable. It was held to be serious infirmity which destroyed the credibility of the evidence of the witness. In the present case eye witnesses namely PW5 Lokam Rikam, PW6 Lokam Lulu and PW11 Lomki Nalo @ Taki were not known to the accused persons and hence could not have named them in their statements and thus, there is a valid RC01(S)/2014/SCIII/ND 15/85 CBI Vs. Farman & Ors.
explanation offered by prosecution for not mentioning the name of accused in the statements of eye witnesses.
(vii) 1996 SCC (Cri) 421 Husna and others vs. State of Punjab wherein it was held that name of accused persons/assailants were missing in the FIR and they were not named in the subsequent statement of PW1 recorded during investigation and that statement was hit by statement 162 CrPC. In the present case after supplementary statements of the witnesses recorded by the Investigating Officer, those witnesses identified the accused persons in the court. Following observations made by Hon'ble Supreme Court in (2014 ) 12 SCC 383 Tara Singh vs. State clarifies the issue by holding that, merely because the complainant did not suspect the involvement of the appellant would not mean that he could not be named in the chargesheet when during investigation it came to the light that he was also the perpetrator of the crime.
(viii) 2005 Crl. L.J. 314 Abanik Debnath and Ors. Vs. State of Tripura. In this case accused caused injuries on the deceased as well as prosecution witnesses and the doctor opined that injuries were simple in nature and conviction of accused U/s. 323 IPC was justified.
(ix) 2004 (5) Scale - State of UP Vs. Mukhram and Others.
(x) 2006 Crl. L.J. 4485 Mansoor Alam and Another Vs. State of Bihar where conviction of second appellant Under Section 302/34 IPC was set aside and he was held guilty U/s 323 IPC as he just slapped the deceased.
(xi) 2006 Crl. L.J. 2966 Ram Chandra and Others Vs State wherein deceased was assaulted with fists and kicks and doctor did not find RC01(S)/2014/SCIII/ND 16/85 CBI Vs. Farman & Ors.
any visible injury and death was caused due to spleen rapture. It was held that accused could not be attributed with knowledge that by such act they were likely to cause death of deceased and the offence fall under Section 323/34 IPC and not Under Section 302/34 IPC. Similar view was taken in 2004 Crl L. J. 1895 State of UP Vs. Hari Ram and Another, 1992 Crl. L.J. 581 Thomas Vs. State of Kerala, Laxman Vs. State decided by Rajasthan High Court on 01.02.1991, Baidyanath Kumar Vs State of Bihar decided by Patna High Court on 29.11.1990.
(xii) 2016 (2) JCC 882 Nankaunoo Vs. State of UP.
(xiii) 2017 Crl.L.J. 2830 - Krishne Gowda & other Vs. State of Karnataka.
(xiv) 2016 (4) Crimes 114 (SC) Harbir Singh and another Vs. Sheesh Pal and other wherein it was held that "testimony of interested witness cannot be relied unless corroborated by independent witness."
(xv) 2015 (4) Crimes 135 (SC) D.Thamodaran Vs. Kandasamy and another.
(xvi) 2011 (3) Crimes 289 (SC) Jalpath Rai and others vs. State of Haryana.
(xvii) AIR 1977 SC 315, Phool Chand vs. State of Rajasthan. (xviii)AIR 2005 SC 2110 Hem Raj and Others vs. State of Haryana wherein it was held that unexplained omission to examine independent eye witnesses would give rise to an adverse inference when evidence of alleged related eye witnesses not found reliable.
(xix) AIR 1993 SC 1892 Varkey Joseph Vs. State of Kerala wherein it was held that prosecution cannot put leading questions which a RC01(S)/2014/SCIII/ND 17/85 CBI Vs. Farman & Ors.
witness intends to given against the accused.
(xx) 2014 (2) JCC 1474 Chandan @ Babbar Vs. State of Government of NCT of Delhi in this case no permission was sought from the court for putting leading question to PW2 about the identity of accused and it was held that entire proceedings concerning identification of accused by PW2 in the court was in violation of the mandates of Section 142 of Indian Evidence Act.
(xxi) 2016 (4) JCC 2590 Arjun Pawar vs. State of Maharashtra and Other.
(xxii) 2016 (1) JCC 419 Balu @ Bala vs. State (UT of Pondicherry).
(xxiii) 2015 (4) JCC 2479 Haider Ali Vs. State, wherein it was held that an offence involving physical violence, the accused must be physically present at the actual commission of the crime for the purpose of facilitating accomplishment of criminal act. In the present case presence of all the accused persons at different places where deceased Nido Tania was assaulted has been proved.
(xxiv) (2009) 13 SCC 417 Stte of Andhra Pradesh Vs. Sayyaad Siraj Mohd. and others wherein it was held that when accused was shown to the witness before TI Parade prosecution version has to be disbelieved. In the present case there is no evidence accused persons were conclusively shown to the witnesses before TIP proceedings.
(xxv) 1992 (2) CCC 303 (SC) Sukhdev Singh and others Vs. State (Delhi Administration).
(xxvi)1990 (2) CCC 402 (SC) Leela Ram Vs. State.
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(xxvii) 1996 SCC (Cri) 552 Grish Yadav & Other vs. State of MP, wherein it was held that recitals in the site plan would remain purely hearsay and could not be read as evidence unless the person who is alleged to have given information recorded in the site plan is examined in the court.
(xxviii) 1996 SCC (Cri) 565 Jagdish Narain & Another Vs. State of UP.
(xxix) (2007) 2 SCC (Cri) 187 State of Rajasthan vs. Netrapal & others.
(xxx) 2005 SCC (Cri) 73 State of Rajasthan vs. Bhanwar Singh, (xxxi) 1979 Crl. L. J. 1087 Suraj Mal Vs. The State (Delhi Administration).
(xxxii) (2003) 9 SCC 444 Moti & others vs. State of UP wherein it was held that where stomach of deceased was found empty and the prosecution evidence was that murder had taken place shortly after the deceased had his last meal, contents of the stomach would have a material bearing to determine the time of incident. In the present case timing of incident is not in doubt and it is not the case of prosecution is that murder had taken place shortly after deceased had taken his meal.
(xxxiii) (2013) 5 SCC 762 Vinay Tyagi vs. Irshad Ali and others.
(xxxiv) 2019 (1) Crimes 28 (SC) Ashish Jain vs. Makrand Singh and others wherein it was held that delay in the arrest, despite clear knowledge of the whereabouts of accused persons casts a serious shadow of doubt over the case of the prosecution. In the present case, there was no RC01(S)/2014/SCIII/ND 19/85 CBI Vs. Farman & Ors.
inordinate delay in the arrest of accused.
18. As mentioned above, all accused persons have been charged under Section 304/34 IPC. Section 304 IPC provides punishment for culpable homicide not amounting to murder. Culpable homicide is defined in Section 299 IPC as under :
" Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
19. The evidence adduced by prosecution will be evaluated and analyzed to determine as to whether ingredients of Section 299/304 IPC have been proved in this case or not.
20. PW1 Nido Lulu who is the sister of deceased Nido Tania interalia deposed that on 29.01.2014 at about 06.45 PM Nido Tania came to the house situated at Green Park Extn. New Delhi alongwith his friend Lokam Lulu; on being inquired by PW1, Nido Tania told that he was beaten by 78 people by stick and that those people were making fun of him due to his unique hairstyle; when PW1 asked deceased as to whether he has got any injection for Titnus, deceased Nido Tania replied in affirmative.PW1 Nido Lulu then deposed that her exams were due on next day and after her exams she was scheduled to take Nido Tania to hospital. PW1 deposed that she saw some swelling on the face, on fingers and neck RC01(S)/2014/SCIII/ND 20/85 CBI Vs. Farman & Ors.
of the deceased. PW1 Nido Lulu further deposed that at about 9.00 PM on the same day i.e. 29.01.2014, one of Nido's female friend came to her house and they kept on chatting for long time in the night. PW1 Nido Lulu further deposed that at about 3.00 AM on the next day Nido Tania came to the room of PW1 and complained about pain his body. PW1 Nido Lulu further deposed that Nido Tania asked PW1 if she was having any pain killer and PW1 handed over an ointment to kill pain to Nido Tania; at about 9.00 AM on the same day PW1 went to her college to appear in her exams; at about 3.30 PM PW1 received a telephonic all from Lokam Lulu, a friend of Nido Tania, that Nido Tania was unwell and he was being taken to AIIMS; PW1 went to AIIMS and before that treating doctor had declared Nido as dead.
21. PW 3 Geetarth Darshan Barua was serving as Additional Private Secretary to the Chief Minister of Arunachal Pradesh and was stationed at Arunachal Bhawan, New Delhi. According to PW 3, call was received in the office of Resident Commissioner, Arunachal Bhawan to the effect that Nido Tania had died in AIIMS Hospital and thereafter, PW 3 alongwith Dr. Avinash Kumar Mishra, the then Resident Commissioner rushed to AIIMS where they were told that Nido Tania had already expired. PW 3 Geetarth Darshan Barua wrote a letter Ex. PW3/A to SHO PS Lajpat Nagar on the information provided by Lokam Lulu. PW 3 Geetarth Darshan Barua has admitted in cross examination that complaint Ex. PW3/A was drafted by him in the office of SHO PS Lajpat Nagar.
22. PW 4 SI Raj Kapoor Hooda, who was posted in PCR (South RC01(S)/2014/SCIII/ND 21/85 CBI Vs. Farman & Ors.
East Zone), inter alia, deposed that on 29.01.2014 at about 1:58 PM, an information was received about quarrel at A83, Lajpat Nagar, PW 4 alongwith other official went to the spot and found crowd of about 3035 persons there, on being inquired, one person from the crowd whose name was disclosed as Farman told that he has called PCR and he produced deceased Nido Tania stating that the said boy had raised quarrel at his shop. PW 4 SI Raj Kapoor Hooda deposed that both Farman and Nido Tania refused to be taken to police hospital and were taken to PS Lajpat Nagar and were handed over to ASI Pritam Singh. PW 4 SI Raj Kapoor Hooda further deposed that Nido Tania had wrapped some cloth of red colour like handkerchief on his fingers.
23. PW 5 Lokam Rikam, interalia, deposed that on 29.01.2014 at about 11 am, he alongwith Lomki Nalo and Lokam Lulu went to see Nido Tania at his house situated at Green Park Extention; after reaching there, they started chatting; suddenly Nido Tania received a phone call from the sister of Larken Doye who told that Larken Doye was seriously ill and it was an emergency; she called Nido Tania at her house stating that she was alone and she required his help; Nido Tania asked them also to accompany him to the house of sister of Larken Doye, who was residing at A39, Lajpat Nagar, New Delhi; this colony was new for all of them; they went to Lajpat Nagar after taking an auto rikshaw; they got down from auto rikshaw at Central Market and started inquiring about A39, Lajpat Nagar but could not got the correct guidance; they divided themselves in order to search that house; PW 5 and Lomki Nalo were together and Nido Tania and RC01(S)/2014/SCIII/ND 22/85 CBI Vs. Farman & Ors.
Lokam Lulu were in other group; they saw an ambulance standing on road side and went there to inquire about house A39, Lajpat Nagar; it took about 57 minutes for them before reaching to that Ambulance; Nido Tania and Lokam Lulu also came to them near that ambulance; PW 5 noticed some injury marks/bruises on the back side of palm, face and neck of Nido Tania; in between 89 assailants, who had given beatings to Nido Tania also reached there; they started abusing Nodo Tania and passed racists remarks against him; assailants were requested by PW 5 Lokam Rikam, deceased Nido Tania and his friends to leave them and allow them to go; thereafter, PW 5 Lokam Rikam and his friends went to A39 which was nearby where ambulance was parked; Lomki Nalo @ Taki applied handkerchief over the injuries of deceased Nido Tania; Larken Doye was shifted to the hospital alongwith his sister; PW 5 Lokam Rikam alongwith deceased Nido Tania and his friends started going from that place and took different routes to avoid the shop of accused Farman; when they were on the way, they were waylaid by several persons and one of them namely Sunny Uppal slapped deceased Nido Tania and passed some racist remarks against him; in the meanwhile, PCR van reached and took deceased Nido Tania and accused Farman from there; PW 5 Lokam Rikam and his friends were directed by the police to leave the spot.
24. PW 5 Lokam Rikam then deposed that he received a call from deceased Nido Tania on the same day at about 3 PM who requested him to come to PS Lajpat Nagar; thereafter, PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki went to PS Lajpat Nagar and met RC01(S)/2014/SCIII/ND 23/85 CBI Vs. Farman & Ors.
deceased Nido Tania there and from PS Lajpat Nagar they went to the house of PW 8 Dewan Natung at Safdarjung Enclave; after reaching there, deceased Nido Tania got injection for tetanus from some chemist. As per the deposition of PW 5 Lokam Rikam, on 30.01.2014, Lokam Lulu (PW6) called him at the house of deceased Nido Tania saying that Nido Tania was not waking up, when PW 5 Lokam Rikam reached the house of Nido Tania, he found that Nido Tania had already been taken to hospital by PW 8 Dewan Natung where Nido Tania was declared brought dead. A leading question was put to PW 5 Lokam Rikam by learned Spl. Public Prosecutor for CBI with the permission of the Court regarding the date when he came to Saket Court Complex to inquire about proceedings of the case.
25. PW 5 Lokum Rikam was cross examined at length by all accused persons. In cross examination, PW 5 Lokum Rikam deposed that Nido Tania was beaten again after he was beaten near the ambulance and he was again beaten at some distance. On being cross examined by Mr. S.K. Sharma, learned counsel for accused Pawan and Sunder, PW 5 Lokum Rikam deposed that he came to know that the incident happened with Nido Tania on 29.01.2014 and the fact that Nido Tania was hospitalized on 30.01.2014 from Lokum Lulu. The objective of Mr. S.K. Sharma, learned defence counsel to cross examine PW 5 Lokum Rikam on these lines was to prove that PW 5 had not witnessed any incident himself and his deposition is hearsay evidence. When PW 5 Lokum Rikam deposed that he came to know about the incident that happened with Nido Tania on 29.01.2014 from Lokum Lulu, he was referring to the incident that RC01(S)/2014/SCIII/ND 24/85 CBI Vs. Farman & Ors.
happened on Rajasthan Paneer Bhandar where only the deceased and Lokum Lulu were present. So far hospitalization of Nido Tania on 30.01.2014, PW 5 Lokum Rikam himself has deposed in examination in chief that on 30.01.2014, he went to the hospital where Dewang Natung (PW8) met him and told him about the death of Nido Tania.
26. PW 5 Lokum Rikam deposed in cross examination that he saw bruises near lips and front portion of neck of deceased Nido Tania. Submitting that identity of accused Pawan and Sunder is seriously in doubt, Mr. S.K. Sharma, learned defence counsel, referred to the cross examination of PW 5 Lokum Rikam wherein he has deposed that he saw accused Pawan and Sunder for the first time in the Court at Saket. PW 5 Lokum Rikam further deposed that he does not know that accused Pawan and Sunder were produced in the Court by police at that time.
27. PW 6 Lokam Lulu in his deposition stated that deceased Nido Tania was his best friend. PW 6 Lokam Lulu, inter alia, deposed that on 29.01.2014 at about 11 AM, he alongwith PW 5 Lokam Rikam and PW 11 Lomki Nalo @ Taki was present at the house of deceased Nido Tania; Nido Tania got an information on telephone that one Larken Doye was seriously ill and was to be taken to hospital and thereafter, all the aforesaid four persons i.e. PW 5 Lokam Rikam, PW 6 Lokam Lulu, PW 11 Lomki Nali @ Taki and Nido Tania proceeded to the house of Larken Doye located at A 39, Lajpat Nagar; they divided themselves into two groups to search the house of Larken Doye; deceased Nido Tania and PW 6 Lokum Lulu were RC01(S)/2014/SCIII/ND 25/85 CBI Vs. Farman & Ors.
in one group while PW5 Lokum Rikam and PW 11 Lomki Nalo @ Taki were in another group; Nido Tania and PW 6 Lokam Lulu went to shop in the name and style of Rajasthan Paneer Bhandar and found four persons (including accused Farman) sitting inside that shop; those persons saw Nido Tania and started laughing at him and even passed some racial remarks against Nido Tania; those four persons were requested by Nido Tania to tell about H.No. A39, Lajpat Nagar as there was an emergency; however, accused Farman and his friends did not tell about the address of said house and kept on laughing at Nido Tania; Nido Tania got annoyed and broke counter glass of Rajasthan Paneer Bhandar; after seeing this, accused Farman and his three associates (juvenile's in conflict with law) came out; accused Farman brought one stick (lathi) from inside his shop and started hitting Nido Tania on his neck and arms with the stick; when Nido Tania was hit in this manner, the stick was broken and then accused Farman started hitting Nido Tania with fists; other three associates of accused Farman also started beating Nido Tania; deceased Nido Tania was caught hold of by two associates of accused Farman and was beaten by accused Farman and his other associates ; PW 6 Lokam Lulu got scared and tried to rescue his friend Nido Tania and in the process, PW 6 received injuries on his head; Nido Tania felt sorry for breaking the counter glass of the shop and paid Rs. 7,000/ to accused Farman and his associates as compensation; PW 6 Nido Tania then noticed one ambulance parked on the road side and they went towards it and found PW 5 Lokam Rikam and PW 11 Lomki Nalo @ Taki standing there who had already obtained information about H.No. A39, Lajpat Nagar; PW 6 Lokam Lulu told PW RC01(S)/2014/SCIII/ND 26/85 CBI Vs. Farman & Ors.
5 Lokam Rikam and PW 11 Lomki Nalo @ Taki about the quarrel which happened with Nido Tania; at that time, Nido Tania was bleeding from his hands and was having bruises on his head including forehead; when Nido Tania and his friends were standing near the ambulance, assailants including four persons who assaulted Nido Tania at Rajasthan Paneer Bhandar and two more persons namely Pawan and Sunder came there and Pawan and Sunder started bashing at Nido Tania; when Nido Tania and his friends felt sorry, they stopped beating him.
28. PW 6 Lokam Lulu further deposed that when he, deceased Nido Tania, PW 5 Lokam Rikam and PW 11 Lomki Nalo @ Taki were standing near the ambulance, assailants comprising including accused Farman & his associates, accused Pawan and Sunder came to them and started inquiring about deceased Nido Tania in an insulting manner, Accused Pawan and Sunder started bashing deceased Nido Tania, deceased Nido Tania and his friends felt sorry and thereafter, those persons stopped beating Nido Tania, PW 11 Lomki Nalo @ Taki gave a cloth of piece to Nido Tania to wrap his injuries and thereafter, Larken Doye was sent to hospital, PW 6 Lokam Lulu and his friends started going back and took different routes to avoid the shop of accused Farman, as they were going towards the main road, they found a group of people near BSES office and one person in that group namely accused Sunny Uppal caught hold of deceased Nido Tania and slapped him on face, accused Farman & his associates and accused Pawan and Sunder were also in that group, deceased Nido Tania was also beaten by accused Pawan, Sunder and Farman near RC01(S)/2014/SCIII/ND 27/85 CBI Vs. Farman & Ors.
BSES office, in between PCR van was called and deceased Nido Tania and accused Farman were taken to PS Lajpat Nagar.
29. PW6 further deposed that at about 1.30 PM, one of his friend namely Dewan Natung came to him at his house and asked him to go to PS Lajpat Nagar to bring Nido Tania back; Nido Tania had asked Lokam Rikam to take him i.e. Nido Tania back from Police Station and Lokam Rikam asked Dewan Natung to pick him from his house; he alongwith Devan Natung went to latter's house at Safdarjung Enclave where Lokam Rikam and Lomki Nalo were waiting for them; they all went to PS Lajpat Nagar after taking two TSRs; they found Mr. Vinod Bansal, a friend of Nido Tania's father and another person outside the police station; they went to shop of a chemist at Safdarjung and purchased an injection for Tetanus; that injection applied by a nearby clinic; they went to house of Dewan Natung; they remained at that house for about 1520 minutes; Nido Tania had prepared a video recording, in which, he had recorded the incident when he was taken to police station from the shop of Farman and showed that video clipping to them; Nido Tania went to his house at Green Park accompanied by PW6. PW6 Lokam Lulu further deposed that he stayed at his house over night; Nido Tania packed his luggage as he was to go to his university on the next day; sister of Nido Tania was also present at the house; she inquired from Nido Tania as to how he suffered injuries; a friend of Nido Tania also joined them at about 9.00 PM; they remained awake over night; Nido Tania could not sleep in the night; at about 66.30 AM, Nido Tania went to sleep, PW6 also sleeping on sofa in the common RC01(S)/2014/SCIII/ND 28/85 CBI Vs. Farman & Ors.
room; again said he was watching TV and could not sleep; at about 3.00 PM, female friend of Nido Tania came to him and told that Nido Tania was not awaking; she was frightened; PW6 checked Nido Tania and found his body was very cold; his pulse was not responding; he tried to resuscitate him but could not; female friend of Nido Tania called an ambulance; they also informed Lokam Rikam etc.; in between an ambulance also reached there; they put Nido Tania in that ambulance and Nido Tania was taken to AIIMS hospital; he also went to that hospital; his other friends had already reached the hospital and it was disclosed that Nido Tania had expired. PW6 Lokam Lulu proved his complaint given to the police as Ex.PW3/A. PW6 Lokam Lulu further deposed that the said complaint was got written by him from Mr.Geetarth Darshan Barua, an Additional Private Secretory to CM Arunachal Pradesh.
30. PW 6 Lokum Lulu was also cross examined at length by learned defence counsels. On being cross examined by Mr. Rajender Singh, learned counsel for accused Sunny Uppal, PW 6 deposed that he personally did not file any complaint about the death of Nido Tania. Mr. Rajender Singh, learned counsel for accused Sunny Uppal, submitted that PW 6 Lokum Lulu has disowned the complaint Ex. PW5/DB which was the basis of entire prosecution case. PW 6 has clarified that complaint Ex. PW5/DB was filed in his name and he put his signatures thereon on 30.01.2014.
31. PW 6 Lokum Lulu was cross examined with regard to complaint Ex. PW3/A given by Nido Jose Apil and witnessed by PW 6. PW 6 Lokum Lulu deposed that he had narrated the entire incident which RC01(S)/2014/SCIII/ND 29/85 CBI Vs. Farman & Ors.
took place on 29.01.2014 with Nido Tania to Nido Jose Apil and contents of same were written in the complaint Ex. PW2/DA. Mr. Rajender Singh, learned defence counsel, took me through the complaint Ex. PW2/DA and submitted that no such incident is mentioned in this complaint.
32. From the tone and tenor of complaint Ex. PW2/DA, it is clear that this was only a request from uncle of deceased Nido Tania to SHO PS Lajpat Nagar to expedite the inquiry as he has apprehension that death was caused by beating and he even suspected murder. It is, therefore, obvious that Nilo Jose Apil did not intend to lodge formal complaint detailing all events. Nilo Jose Apil was not a witness to the incident which happened with Nido Tania on 29.01.2014. Had he given a detailed complaint, accused would have taken the defence that Nilo Jose Apil has mentioned events which he himself has not seen and his version is based on hearsay evidence.
33. PW 6 Lokum Lulu was then cross examined as to which of two complaints i.e. Ex. PW2/DA and complaint Ex. PW3/A was given first. PW 6 Lokum Lulu deposed that he does not remember anything in this regard. However, factual position was clarified by PW 13 SI Amit Kumar in cross examination to the effect that complaint Ex. PW2/DA filed by Nilo Jose Apil is the first complaint and complaint Ex. PW3/A is the second complaint. PW 6 Lokum Lulu deposed in cross examination that he has stated in his statement given to police about name and involvement of accused Sunny Uppal. PW 6 Lokum Lulu was confronted with police RC01(S)/2014/SCIII/ND 30/85 CBI Vs. Farman & Ors.
statement Ex. PW6/DA, Ex. PW6/DB and Ex. PW6/DC where name of accused Sunny Uppal is not recorded. It should not be forgotten that these statements of PW 6 Lokum Lulu were recorded on 31.01.2014, 05.02.2014 and 06.02.2014, while PW 6 Lokum Lulu was cross examined in the Court on 20.01.2016. Therefore, PW 6 Lokum Lulu might not have recollected all the facts which he stated in his aforesaid police statements due to lapse of time.
34. In any case, PW 6 Lokum Lulu in his statement Ex. PW6/DC has stated that when he, deceased and his other friends were surrounded by crowd of persons after the ambulance had left and in the said crowd, there was a man with beard who was wearing cap and who hit Nido Tania. PW 6 Lokum Lulu has further stated that in his statement Ex. PW6/DC that he can identify the person who was wearing the cap on that day. PW 6 Lokum Lulu in examination in chief has clearly identified accused Sunny Uppal in the Court. Therefore, nonmentioning the name of Sunny Uppal in the statements of PW 6 Ex. PW6/DA, Ex. PW6/DB and Ex. PW6/DC is inconsequential. PW 6 Lukum Lulu has also denied the suggestion that accused Sunny Uppal was not present at the spot on 29.01.2014.
35. On being cross examined by Mr. S.K. Sharma, learned counsel for accused Pawan and Sunder, PW 6 Lukum Lulu deposed that whoever involved in the incident was taken by police. Mr. S. K. Sharma submitted that case of prosecution is that only Farman and Nido Tania were taken by PCR officials to the Police Station and thus, PW 6 Lukum Lulu in cross RC01(S)/2014/SCIII/ND 31/85 CBI Vs. Farman & Ors.
examination was deposing against the case of prosecution. This is a minor contradiction which can be safely ignored in view of law laid down in Ravi Kapur Vs. State of Rajasthan 2012 (7) SCALE 354.
36. PW 6 Lokam Lulu then deposed in cross examination that while going to the residence of Nido Tania, PW 6 and his friends went to a shop to get an injection to be administered to Nido Tania. PW 6 further deposed that it was tetanus injection. PW 6 deposed that none of them checked as to which company's injection was being administered to Nido Tania and whether or not said injection had expired. It is to be noted that at that time Nido Tania, PW 6 and their other associates were under a state of shock and trauma because of the incident happened at Rajasthan Paneer Bhandar, near ambulance and near BSES office and would not be having enough composure to see the name of company which manufactured the said tetanus injection or check as to whether said injection had expired.
37. PW 6 Lokam Lulu was then confronted with his complaint Ex. PW3/A wherein it is not recorded that stick which was used by accused Farman was broken. This may amount to omission in the complaint Ex.PW3/A of PW 6 but same will not be a contradiction visavis his deposition in the Court. Hence, failure of PW 6 Lokam Lulu to mention the fact that the stick was broken in his complaint Ex. PW3/A is not of much significance. Infact, PW 6 Lokam Lulu in later portion of his cross examination clarified that he did not mention about use of stick/danda in his first complaint as he did not feel it necessary to mention the said fact in RC01(S)/2014/SCIII/ND 32/85 CBI Vs. Farman & Ors.
his complaint.
38. PW 6 Lokam Lulu first denied that CBI and police had shown him photographs of accused during investigation. However, on being confronted with his statement recorded by CBI wherein it is stated that PW 6 was shown photographs of Farman and Sunny Uppal, PW 6 deposed that photographs of accused persons were shown to him during investigation. Referring to this portion of testimony of PW 6 Lokam Lulum, all the learned defence counsels submitted that when photographs of accsued persons had already been shown to the witness during investigation, identification of accused by the witness in the Court losses its significance and hence, it has to be concluded that there was no proper identification of accused by the witness/PW6. It has to be kept in mind that at the initial stage of investigation, there as no clarity about the persons involved in the incident. Neither PW 6 Lokam Lulu nor PW 5 Lokam Rikam and PW 11 Lomki Nalo & Taki were having any idea about names and addresses of accused. Therefore, the fact that the photographs of some of the accused which were shown to the witness during investigation for the purpose of clarification will not raise any question mark about identity of accused by the witness in the Court.
39. PW 11 Lomki Nalo @ Taki was with deceased Nido Tania, PW 5 Lokam Rikam and PW 6 Lokam Lulu when they went to Lajpat Nagar. PW 11 Lomki Nalo @ Taki was in the group of PW 5 Lokam Rikam to search the house of Larken Doye. PW11 Lomki Nalo @ Taki RC01(S)/2014/SCIII/ND 33/85 CBI Vs. Farman & Ors.
deposed on similar lines and supported and corroborated the version given by PW5 Lokam Rikam and PW6 Lokam Lulu.
40. Mr. Manbir Singh, learned counsel for accused Farman, gave a suggestion to PW 6 Lokam Lulu that no incident of scuffle/beating to Nido Tania took place near the ambulance and this suggestion was denied by PW
6. PW 6 Lokam Lulu also denied the suggestion that Nido Tania did not die due to any injury in the scuffle or that Nido Tania died due to over dose of narcotic/drugs.
41. Much emphasis was laid by learned defence counsels for all accused that two places of incident viz. one near ambulance and second near BSES office have not been mentioned by PW 6 Lokum Lulu in his complaint Ex. PW3/C. Reference has also made to the site plan Ex. PW20/A by Mr. S.K.Sharma, learned counsel for accused Pawan and Sunder, wherein all three places of incident are not mentioned. Thus, the contention that was raised before the Court was that PW 6 Lokum Lulu as well as PW 5 Lokam Rikam and PW 11 Lomki Nalo @ Taki have improved upon the version which was given by PW 6 Lokum Lulu in his complaint Ex. PW3/C. It may be mentioned here that complaint Ex. PW3/C became the basis of FIR in the present case. In any case, in (2018) 9 SCC 429 - Motiram Padu Joshi & Ors. Vs. State of Maharashtra, it was held in para 14 as under :
"Furthermore, as pointed out by the High Court, FIR is not an encyclopedia which should contain all the details of the incident. FIR RC01(S)/2014/SCIII/ND 34/85 CBI Vs. Farman & Ors.
is not an encyclopedia which is expected to contain all the details of the prosecution case. It may be sufficient if the board facts of the prosecution case about the occurrence appear. Omission as to the names of the assailants or the witnesses may not all the times be fatal to the prosecution, if the FIR is lodged without delay. Unless there are indications of fabrication, the court cannot reject the prosecution case as given in the FIR merely because of omission. In the present case, FIR was registered without delay and prompt registration of FIR itself lends assurance to the prosecution case."
42. Even if, it is accepted that PW 6 Lokam Lulu failed to mention two places of incident in the FIR and made improvements over his complaint Ex. PW3/C while deposing in the Court, the Court has to see whether this omission on the part of PW 3 amounts to contradiction or not. Explanation to Section 162 Cr.PC provides that an omission to state a fact or circumstance in the statement referred to in subsection (1) may amount to contradiction if same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
43. It has come in the deposition of PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki that they and deceased Nido Tania were not aware of the topography of Lajpat Nagar area. It has also come in the evidence that all three places of incident viz. Rajasthan Paneer RC01(S)/2014/SCIII/ND 35/85 CBI Vs. Farman & Ors.
Bhandar, place near ambulance was parked and the place near BSES office, are near to each other. Accused persons were not known to PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki by name. In any case, PW 6 Lokam Lulu in his statement Ex. PW6/DC has mentioned the incident that happened near ambulance and has also mentioned about the incident which happened when they moved few steps ahead of ambulance. PW 6 Lokam Lulu in his statement Ex. PW6/DC given to CBI has mentioned the incident which happened near BSES office. Similarly, PW 5 Lokam Rikam has talked about the incident that happened near ambulance in his statement Ex. PW5/DB recorded under Section 161 Cr.PC and the fact that when they moved ahead of that place, they were again surrounded by crowd and Nido Tania was assaulted by them. PW 5 Lokam Rikam in his statement Ex. PW5/DC given to CBI under Section 161 Cr.PC has mentioned about the incident that happened near BSES office.
44. Therefore, the omission on the part of PW 6 Lokam Lulu to mention all three places of incident in his complaint Ex. PW6/DC is not material and significant and same does not amount to contradiction. Same logic applies to the fact that three places of incident are not mentioned in the site plan Ex. PW20/A which was prepared by PW 20 Mr. Shankar Choudhary (1st Investigating Officer) at the instance of PW 6 Lokam Lulu. It can be seen in deposition of PW5 Lokam Rikam that the shop of accused Farman was nearby and visible from the place where Ambulance was parked.
RC01(S)/2014/SCIII/ND 36/85
CBI Vs. Farman & Ors.
45. In (2014) 12 SCC 383 Tara Singh vs. State (relied upon by learned Special Public Prosecutor of CBI) some light was thrown on this issue and it was held that, merely because the complainant did not suspect the involvement of the appellant would not mean that he could not be named in the chargesheet when during investigation it came to the light that he was also the perpetrator of the crime.
46. In the present case also names of accused persons as well as three places of incident surfaced during investigation and hence, non mentioning of three places of incident in the FIR will not be of much consequence.
47. Another argument of learned defence counsels related to above submission was that as per the deposition of PW 4 SI Raj Kapoor Hooda, an official of PCR, accused Farman and Nido Tania were taken to Police Station from A83, Lajpat Nagar and hence, possibility of Nido Tania being assaulted at two other places is completely ruled out. PW 5 Lokam Rikam has deposed that when he and his friends were on their way after leaving the place where ambulance was parked, they were waylaid by several persons including accused persons. In between PCR van reached the spot and took Nido and Farman from there. PW 6 Lokam Lulu deposed that after the incident that happened near BSES office, PCR van came there which was mend by two police officials and they took away Nido Tania and Farman. PW 11 Lomki Nalo @ Taki also deposed on similar lines.
RC01(S)/2014/SCIII/ND 37/85
CBI Vs. Farman & Ors.
Therefore, from the version given by PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki, it is clear that PCR van came after the incident that happened near BSES office. PW16 Ct.Ramji Lal Meena who was one of the police official on duty in PCR van and went to A83, Lajpat Nagar with PW4 SI Raj Kumar Hooda had deposed that when PCR van reached at the spot they found a crowd of 2025 persons sitting near BSES office, therefore, it is clear that the PCR van reached the BSES office after the third incident happened near BSES office.
48. Pertinently, PW 16 Ct Ramji Lal Meena has deposed that after receiving information about the scuffle at A83, Lajpat Nagar, PCR Van reached the spot i.e. A83 Lajpat Nagar that within five minute, and they found crowed of 2025 persons standing near BSES office. This part of the deposition of PW 16 Ct. Ramji Lal Meena demolished the case of accused persons that no incident happened near BSES office. It also transpired from the deposition of PW 16 Ct. Ramji Lal Meena that BSES office and A83, Lajpat Nagar are close to each other.
49. PW4 SI Raj Kumar Hooda who was posted in PCR went to the spot after an information was received from the police control room about a call at A83, Lajpat Nagar has not mentioned anything about the compromise between deceased Nido Tania and accused Farman pursuant to which a sum of Rs. 7000/ was paid by deceased Nido Tania to accused Farman. The factum of compromise between deceased Nido Tania and accused Farman has come in the deposition of PW5 Lokam Rikam, PW6 RC01(S)/2014/SCIII/ND 38/85 CBI Vs. Farman & Ors.
Lokam Lulu and PW11 Lomki Nalo @ Taki. Meaning thereby that PW4 SI Raj Kumar Hooda did not reach Rajasthan Paneer Bhandar after the first incident but PCR was called and PW4 reached the spot after third incident of beating of the deceased by accused persons. Had PCR officials being informed immediately after the first incident at Rajasthan Paneer Bhandar, PW4 SI Raj Kumar Hooda would have come to know about the compromise between deceased Nido Tania and accused Farman and would have deposed accordingly. Therefore, sequence of events emerging from the deposition of PW4 Raj Kumar Hooda, PW5 Lokam Rikam, PW6 Lokam Lulu and PW11 Lomki Nalo @ Taki is that deceased Nido Tania on being taunted by accused Farman and his three associates (juveniles in conflict with law) broke the counter glass of Rajasthan Paneer Bhandar which prompted accused Farman and his three associates to assault Nido Tania, thereafter matter was compromised and deceased Nido Tania paid Rs. 7000/ to accused Farman, deceased Nido Tania was again beaten by accused persons at a place near Ambulance and thereafter at a place near BSES office and after the third incident of beating near the office of BSES, PCR was called and deceased Nido Tania and accused Farman were taken to PS Lajpat Nagar. Thus, there is no substance in the submission of Mr. S.K.Sharma, learned defence counsel that the question of incident at third place does not arise when deceased Nido Tania and accused Farman were taken to police station from Rajasthan Paneer Bhandar itself.
50. Another interesting point to be noted is that it has come in the deposition of PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki RC01(S)/2014/SCIII/ND 39/85 CBI Vs. Farman & Ors.
Nalo @ Taki that one handkerchief was wrapped in the hand of deceased at the house of Larken Doye. PW 4 SI Raj Kapoor Hooda has deposed that Nido Tania had wrapped some cloth like handkerchief of red colour in his fingers. This part of deposition of PW 4 SI Raj Kapoor Hooda clearly proved that PCR van reached after the incident had happened near ambulance. Therefore, the obvious conclusion is that PCR van was called after third incident when deceased Nido Tania and Farman were taken to Police Station Lajpat Nagar.
51. Even otherwise, PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki are consistent in their depositions and have fully corroborated each other's version. Infact, learned defence counsels, during course of arguments, could not point out any material contradiction in the depositions of these three prosecution witnesses. When these three prosecution witnesses namely PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki, have mentioned about the incident at three places, omission on the part of PW 6 Lokam Lulu to mention two other places of incident in the complaint Ex. PW3/A will not amount to any contradiction. In any case, the versions of PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki cannot be discarded merely because of three places of incidents are not mentioned in the site plan Ex.PW20/A in view of judgment passed by Hon'ble Supreme Court in MANU/SC/1349/2016 - Yogesh Singh Vs. Mahabeer Singh & Ors. wherein it was held as under :
"........besides, the judgment of this Court in Prithvi Vs. Mam RC01(S)/2014/SCIII/ND 40/85 CBI Vs. Farman & Ors.
Raj MANU/SC/0143/2004 : (2004) 13 SCC 279, is an authority for the proposition that site plan is not a ground to disbelieve the otherwise credible testimony of eye witnesses."
52. PW8 Dewan Natung who was known to deceased Nido Tania through Lokam Lulu visited police station Lajpat Nagar on 29.01.2014 alongwith Lokam Rikam, Lokam Lulu and Lomki Nalo where deceased Nido Tania was taken after the incident at the request of deceased Nido Tania and found deceased Nido Tania present in the police station alongwith two of his relatives. PW8 Dewan Natung found that deceased Nido Tania had sustained injuries on his face, neck and hands and was also complaining pain in his head. PW8 Devan Natung deposed that after some time deceased Nido Tania alongwith two friends namely Lokam Rikam and Lokan Lulu came to his residence at Safdarjung Encalve where deceased Nido Tania narrated the entire incident. PW8 Devan Natung further deposed that on 30.01.2014 at about 2.30 PM, Lokam Lulu called PW8 on his mobile phone and asked him to come at the residence of deceased Nido Tania. Thereafter PW8 alongwith his friend Lenjing Modi reached the house of deceased Nido Tania and found that deceased Nido Tania was lying on the bed and Ambulance had reached there. PW8 and other persons shifted deceased Nido Tania in the said Ambulance to AIIMS hospital where Nido Tania was declared dead.
53. PW9 Kulbhushan Watts who was residing at C2/110 Lajpat NagarII, New Delhi in January 2014, close to A83, Lajpat Nagar, RC01(S)/2014/SCIII/ND 41/85 CBI Vs. Farman & Ors.
witnessed the quarrel between deceased Nido Tania and accused Farman and is stated to have separated them. PW9 Kulbhushan Watts deposed that after the incident, many persons assembled at the spot and accused Pawan and Sunder were among them. PW9 Kulbhushan Watts also deposed about the payment of Rs. 7000/ by deceased Nido Tania in cash to accused Farman. PW9 then deposed about the visit of two police officials at Rajasthan Paneer Bhandar in whose presence a compromise deed Ex.PW9/A was entered into which is signed by PW9. PW9 Kulbhushan Watts also deposed that compromise deed Ex.PW9/A was also signed by accused Pawan and identified his signature thereon.
54. PW10 Binod Rameshwar Bansal was known to the father of deceased Nido Tania and he visited police station Lajpat Nagar on the day of incident after being informed by deceased Nido Tania on phone. PW10 deposed that he noticed some injuries on the hands as well as face of deceased Nido Tania in the police station.
55. PW12 ASI Pritam Singh is the police official to whom accused Pawan and Sunder were handed over by PW4 SI Raj Kumar Hooda after being brought to PS Lajpat Nagar. PW12 ASI Pritam Singh visited A83 Lajpat Nagar alongwith deceased Nido Tania and accused Farman and Ct. Harinder and his inquiry revealed that a scuffle had taken place between accused Farman and deceased Nido Tania. PW12 ASI Pritam Singh further deposed that he asked both deceased Nido Tania and accused Farman for a written compromise and compromise ExPW9/A was prepared. PW12 ASI RC01(S)/2014/SCIII/ND 42/85 CBI Vs. Farman & Ors.
Pritam Singh was asked in cross examination by Mr. Manbir Singh, learned counsel for accused Farman as to whether injuries suffered by deceased Nido Tania were sufficient to cause death and PW12 deposed that he cannot say that those injuries were sufficient to cause death. This suggestion was put to a wrong person as PW12 is not a medical expert to opine as to whether those injuries would have caused the death of deceased Nido Tania.
56. PW13 SI Amit Kumar conducted inquest proceedings and inquiry on various aspects of the case before registration of FIR after receiving call on 30.01.2014 that a boy namely Nido Tania has been admitted in AIIMS for treatment and was declared brought dead by the treating doctor. On 30.01.2014, PW13 SI Amit Kumar alongwith Ct. Anand reached AIIMS hospital at about 8.30 PM and collected MLC of Nido Tania. PW13 SI Amit Kumar deposed that he noticed abrasions on the dead body and he inquired from Chief Medical Officer as to whether these abrasions were the main cause of death of Nido Tania to which CMO replied that the abrasions may not be the death of Nido Tania. PW13 SI Amit Kumar wrote a letter to CMO AIIMS for preserving the death body of the deceased Nido Tania. PW13 SIAmit Kumar also made inquiry from ASI Pritam Singh who visited the spot on 29.01.2014. PW13 SI Amit Kumar interalia deposed that on 30.10.2014 matter was discussed with the then SHO PS Lajpat Nagar who advised PW13 to write a letter to Medical Supdt. AIIMS for constituting of Board of Doctors for conducting Postmortem of deceased Nido Tania; PW13 SI Amit Kumar wrote a letter RC01(S)/2014/SCIII/ND 43/85 CBI Vs. Farman & Ors.
Ex.PW13/B to Medical Supdt. AIIMS for constituting Medical Board of doctors and thereafter postmortem was conducted on the dead body of Nido Tania and thereafter the dead body of deceased Nido Tania was handed over to the relatives of the deceased. PW13 SI Amit Kumar further deposed that after postmortem was conducted on 31.01.2014, the concerned doctor handed over one box containing viscera of deceased blood in gauze, one bundle of clothes of deceased with sample seal and one video cassette prepared during the course of conducting postmortem to PW13. Thereafter PW13 SI Amit Kumar came to PS Lajpat Nagar where PW6 Lokam Lulu gave complaint Ex.PW3/A and on the back of the second page of complaint, PW13 SI Amit Kumar wrote a report in two pages vide endorsement Ex.PW13/F and recommended registration of FIR U/s. 302 IPC as well as Under Section 3(x) of The Scheduled Castes & Schedules Tribes (Prevention of Atrocities) Act to SHO PS Lajpat Nagar. PW13 SI Amit Kumar also received postmortem report of the deceased Ex.PW2/A from AIIMS hospital. On the recommendation PW13 SI Amit Kumar FIR No. 47/14 was registered at PS Lajpat Nagar on 31.01.2014 and investigation was handed over to Mr. Shankar Chaudhary the then ACP Lajpat Nagar. PW13 SI Amit Kumar was also associated with the investigation even after registration of FIR.
57. PW13 SI Amit Kumar was a witness to the arrest of accused Farman, Pawan, Sunder and Sunny Uppal. PW13 SI Amit Kumar deposed that one mobile phone from the possession of accused Pawan was recovered which was seized vide seizure memo Ex.PW13/T. PW13 SI RC01(S)/2014/SCIII/ND 44/85 CBI Vs. Farman & Ors.
Amit Kumar further deposed that the mobile phone recovered from accused Pawan was having photographs of the place of occurrence in Whatsapp account and these five photographs were taken on record as Ex.PW6/A, Ex.PW6/B, Ex.PW6/C, Ex.PW13/U and Ex.PW13/V.
58. In cross examination PW13 SI Amit Kumar was shown complaint Ex.PW2/DA and he deposed that same was given to him by Nido Josh Apil on 31.01.2014 at about 11.00 AM. PW13 SI Amit Kumar further deposed that the complaint Ex.PW2/DA is the first complaint and thereafter complaint Ex.PW3/A was given on the basis of which FIR was registered. On being asked by Mr. Rajender Singh, learned counsel for accused Sunny Uppal in cross examination as to why FIR was not registered after receiving complaint Ex.PW2/DA as it was disclosing cognizable offence, PW13 deposed that this complaint was received at the time of inquest proceedings at AIIMS hospital and when he reached PS Lajpat Nagar at 4.30 PM on the same day, one complaint had already been filed which was marked to him and the FIR was registered on the basis of that complaint. PW13 SI Amit Kumar was also questioned as to how names of accused Pawan and Sunder surfaced during investigation and PW13 deposed that names of accused Pawan and Sunder were disclosed by co accused Farman. PW13 SI Amit Kumar was also asked about the reason for constitution of Board of Doctors for conducting postmortem and he deposed that since on the inspection of the dead body no such visible injury was found which could have been the cause of death and there were allegations of murder, therefore, request for constitution of Medical Board RC01(S)/2014/SCIII/ND 45/85 CBI Vs. Farman & Ors.
was made. Thus, PW13 SI Amit Kumar has explained and justified his request for constitution of Medical Board.
59. PW14 Ravi Chaudhary is the owner of Chemist Shop situated at 62G, Humayu Pur, New Delhi from where deceased and his friends purchased the tetanus injection on 29.01.2014 at about 6.00 PM. In cross examination PW14 deposed that his salesman namely Mahender who sold the tetanus injection to the deceased was having approximately eight years of experience in the business.
60. PW 15 Ravi who was working as compounder in Dr. R.R. Gupta Medical Centre, 87A, Krishna Nagar, Safdarjung Enclave, deposed that he administered tetanus injection in the evening of 29.01.2014 to one northeast looking patient. PW 15 was shown photograph Ex. PW6/B and he identified deceased Nido Tania in the said photograph as the boy to whom he administered tetanus injection. PW 15 Ravi further deposed that he consulted the doctor. PW 15 Ravi further deposed that normally after administering tetanus injection, patient is asked to sit for five minutes so that it can be observed as to whether patient is developing any complication like giddiness or nervousness. PW 15 further deposed that in this case also patient waited for 5 minutes in his clinic and thereafter, he was allowed to go with his friend.
61. PW 15 Ravi in cross examination denied the suggestion that before administering injection of tetanus, any test is required or that he did RC01(S)/2014/SCIII/ND 46/85 CBI Vs. Farman & Ors.
not consult the doctor before administering tetanus injection in the evening on 29.01.2014 to the deceased.
62. PW 15 Ravi was confronted with his statement Ex. PW15/DA recorded by CBI wherein it is not recorded that after consulting the doctor, he administered the injection to northeast looking boy.
63. This is an improvement made by PW 15 over his statement given to CBI but same is not a material and same does not amount to any contradiction between his version given in the Court or his version given to CBI.
64. On being cross examined by Mr. S.K. Sharma, learned counsel for accused Pawan and Sunder, PW 15 Ravi deposed that he properly checked expiry dater of the injection as well as of syringe and both were within validity period and only thereafter, he administered the said injection. It has come in cross examination of PW 15 Ravi Kumar that normally after administration of tetanus injection, patient is asked to sit for five minutes so that any kind of complication which may be developed to the patient like giddiness or nervousness can be observed. PW 15 Ravi Kumar added that in this case also patient waited for five minutes in the clinic and no such symptoms developed during that time and after that patient was allowed to go with his friends. Therefore, any possibility of death by tetanus injection is ruled out.
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CBI Vs. Farman & Ors.
65. PW16 Ct. Ramji Lal Meena was one of the police official on the duty in Kite17 PCR Van which reached A83 Lajpat Nagar after receiving a call i.e. scuffle has taken place at A83 Lajpat Nagar, New Delhi. PW16 deposed that within five minutes of listening the call the PCR reached the spot and they found a crowd of 2025 persons standing near the BSES office.
66. PW17 Achla Gulati is the owner of House No. A1/83 on the ground floor of which from very small hut type kiosk in the veranda of her house accused Farman was running his shop under the name and style, "Rajasthan Paneer Bhandar". PW17 deposed that she had rented out the said hut type kiosk to Farman at the monthly rent of Rs. 5000/. PW17 had gone to the residence of her daughter on 29.01.2014 and when she returned to her house on next day, brother of accused Farman told her that a scuffle had taken place between his brother Farman and some other person.
67. PW18 Ct. Harender Singh accompanied ASI Pritam Singh, accused Farman and deceased to the spot after SI Raj Kapoor brought the deceased and accused Farman to the police station. The facts deposed by the PW18 Ct. Harender Singh have also come in the deposition of PW12 ASI Pritam Singh.
68. PW19 Mr. V.B.Ramkeke, Sr. Scientific Officer, GradeI (Chemistry) CFSL, New Delhi examined the exhibit (viscera) in this case and gave his chemical examination report Ex.PW19/A. The result of the RC01(S)/2014/SCIII/ND 48/85 CBI Vs. Farman & Ors.
examination conducted by PW19 is that the exhibits 1, 3A, 3B, 3C and 3D gave negative tests for the presence of common poisons including Narcotics/drugs.
69. PW 20 Mr. Shankar Choudhary who was then posted as ACP Lajpat Nagar, Subdivision, was the first Investigating Officer of this case before investigation was transferred to CBI. PW 20 Mr. Shankar Choudhary visited A83, Lajpat Nagar, New Delhi on 31.01.2014 alongwith Lokam Lulu (PW6) and ASI Pritam Singh and prepared the site plan Ex. PW20/A at the instance of Lokam Lulu (PW6). PW 20 Mr. Shankar Choudhary also recorded statements of Lokam Lulu, Arjun and one Ashish Bhatia under Section 161 Cr.PC. PW 20 Mr. Shankar Choudhary deposed that during investigation, names of Farman, Pawan and Sunder cropped up and they were arrested on 03.02.2014. PW 20 Mr. Shankar Choudhary also deposed about the letter written by the then DCP (SouthEast) to CFSL requesting for examination of viscera of deceased Nido Tania and to report whether same contains any poisonous substance or narcotics/drugs. PW 20 Mr. Shankar Choudhary further deposed that CFSL result was received on 08.02.2014 and was sent to AIIMS Hospital for perusal. PW 20 Mr. Shankar Choudhary deposed that accused Sunny Uppal was arrested on 10.02.2014 vide arrest memo Ex. PW13/W. PW 20 Mr. Shankar Choudhary moved an application on 14.02.2014 for conducting TIP parade of accused Farman, Pawan and Sunder. PW 20 Mr. Shankar Choudhary also moved another application dated 11.02.2014 for conducting TIP of accused Sunny Uppal. The application for conducting RC01(S)/2014/SCIII/ND 49/85 CBI Vs. Farman & Ors.
TIP parade of accused Sunny Uppal Ex.PW 13/C was taken up by concerned Metropolitan Magistrate wherein accused Sunny Uppal refused to participate in TIP. Similar, accused Farman, Pawan and Sunder also refused to participate in TIP proceedings on 13.02.2014.
70. PW 20 Mr. Shankar Choudhary deposed that he obtained one day police custody remand of accused Farman for recovery of danda allegedly used by him to hit the deceased Nido Tania. PW 20 Mr. Shankar Choudhary alongwith accused Farman visited A83, Lajpat Nagar in the evening of 15.02.2014 and shop of accused Farman was searched but the said danda could not be recovered.
71. It has come in the deposition of PW 20 Mr. Shankar Choudhary that the danda/wooden stick allegedly used in the commission of crime could not be recovered. However, non recovery of weapon of offence is not fatal to the case of prosecution as has been held in (2002) 7 SCC 198 - Lakshmi & Ors. Vs. State of U.P.
72. In cross examination, PW 20 Mr. Shankar Choudhary deposed that prior to arrest of accused Pawan and Sunder, witnesses namely Lokam Lulu, Arjun and Ashish Bhatia had informed PW 20 regarding description of persons who were involved in the incident and he had recorded the statement of Ashish Bhatia in this regard. PW 20 Mr. Shankar Choudhary denied the suggestion that accused Pawan and Sunder were apprehended due to public and media pressure. On being cross examined by Mr. RC01(S)/2014/SCIII/ND 50/85 CBI Vs. Farman & Ors.
Rajinder Singh and Mr. N.K.Kukreja, learned Counsel for accused Sunny Uppal, PW 20 Mr. Shankar Choudhary denied the suggestion that accused Sunny Uppal was admitted in Moolchand Hospital in unmuffled face where he was in public view.
73. PW21 Mr. Shyam Lama was posted as Dy. Supdt. Of Police in CBI when investigation of this case was transferred to CBI and he conducted further investigation.
Scientific evidence
74. When deceased Nido Tania was taken to AIIMS Hospital on 30.01.2014 by Dewan Natung (PW8) and other persons, he was examined by PW 7 Dr. Manoj Kumar Chaudhary vide MLC Ex. PW7/A and Nido Tania was declared brought dead at 5:10 PM. In response to a suggestion put by Mr. Rajinder Singh, learned counsel for accused Sunny Uppal, PW 7 Dr. Manoj Kumar Chaudhary deposed that on being questioned, he had stated to the police that due to abrasions mentioned in the MLC Ex. PW7/A noone can die. Thorough examination of body of deceased viz. postmortem report Ex.PW2/A and examination of viscera had not taken place when PW 7 Dr. Manoj Kumar Choudhary noted that abrasions on the body of deceased and therefore, PW 7 Dr. Manoj Kumar Choudhary was not competent to opine that due to abrasions noone can die.
75. Postmortem on the body of deceased was conducted by board of doctors comprising Dr. Hari Prasad, Dr. Kartik Krishna and Dr. T.Milo RC01(S)/2014/SCIII/ND 51/85 CBI Vs. Farman & Ors.
(PW2). After postmortem, opinion as regards cause of death was kept pending till viscera analysis report are made available from CFSL. In the postmortem report Ex. PW2/A, following nine injuries are mentioned in different parts of the body of deceased :
" (i) A reddish coloured abrasion of size 0.2 x 0.3 cm is present on the right check region.
(ii) Two reddish coloured contusion of size 1 x 1 and 2 x 1.5 cm are present on the right and left aspect of the upper lip respectively.
(iii) A reddish colured abrasion of size 1x0.4 cm is present on the chin region just below the right outer angle of lower lip.
(iv) Multiple reddish coloured abrasions of size ranging from 0.1 x 0.1 cm to 0.2 to 0.4 cm are present over an area of 4x5 cm on the anterior midline of the neck.
(v) A reddish coloured abrasion of size 1x0.5 cm is present on the dorsum of middle phalux of left index finger.
(vi) A reddish coloured abrasion of size 0.5x0.5 cm is present on the anterior aspect of shin region of left leg.
(vii) A reddish coloured abrasion of size 1x0.2 cm is present on the medial aspect of the left knee region.
(viii) A laceration of size 0.5x0.5x0.1 cm is present on the dorsal aspect of middle plalanx of right ring finger. The margins are irregular and shows reddish coloured contusion.
(ix) A reddish coloured contusion of size 4x3 cm is present
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CBI Vs. Farman & Ors.
on the right inframastiod region on the back of neck. There is a swelling over an area of 5x4 cm around the contusion."
76. Exhibits including viscera were sent to CFSL for chemical examination. After receiving chemical examination report Ex. PW19/A from CFSL, medical board gave opinion Ex. PW2/B regarding cause of death in this case as under :
" After thorough examination and deliberation of postmortem finds, histopalthology findings and chemical analysis report, the Medical Board unanimously concludes that the cause of death in this case is cerebropulmonary edema and its complications as a consequence of blunt trauma to Head and Face. All the mentioned injuries (1 to 9) are antemortem is nature and caused by blunt force."
77. PW 10 Binod Rameshwar Bansal was known to the father of Nido Tania and used to assist Lulu Nido, sister of deceased as and when requested. On 29.01.2014, PW 10 Binod Rameshwar Bansal was requested by Nido Tania over phone to come to Police Station Lajpat Nagar. PW 10 Binod Rameshwar Bansal reached Police Station Lajpat Nagar and also asked one Varun to join him to Police Station Lajpat Nagar. Initially, PW 10 Binod Rameshwar Bansal did not find Nido Tania in the Police Station and after waiting for sometime in the Police Station, PW 10 Binod Rameshwar Bansal alongwith Varun visited the place where some quarrel had taken place. At that time, PW 10 Binod Rameshwar Bansal received a call from Nido Tania informing him that he was very much in the Police RC01(S)/2014/SCIII/ND 53/85 CBI Vs. Farman & Ors.
Station. PW 10 Binod Rameshar Bansal and Varun came to the Police Station Lajpat Nagar where they met Nido Tania. Nido Tania told PW 10 about a compromise between him and the person with whom quarrel had taken place. PW 10 Binod Rameshwar Bansal noticed some injuries at the hands and face of Nido Tania and advised him to take tetanus injection.
78. PW 1 Nido Lulu, sister of deceased Nido Tania, deposed that at around 3 AM on 30.01.2014, Nido Tania came to her room and complained about pain in his body and asked for any pain killer. PW 1 Nido Lulu gave an ointment to kill pain to Nido Tania. Therefore, there is no substance in the argument of Mr. S.K. Sharma, learned counsel for accused Pawan and Sunder, that there is no evidence that during night, after the incident, Nido Tania was not having any discomfort.
79. Mr. S.K. Sharma, learned defence counsel, vehemently emphasized that no search was conducted at the house of deceased Nido Tania from where he was taken to hospital and was declared brought dead to rule out any foul play and thus, investigation is tainted. Obvious suggestion in the submissions of Mr. S.K. Sharma, learned defence counsel, was that had any investigation being conducted at the house of deceased Nido Tania, Investigating Officer would have got some clue/evidence as to the cause of death viz. consumption of cocain or other drugs. It has been suggested by learned defence counsels that deceased Nido Tania was a drug addict and he died due to over dose of cocain. However, the medical evidence i.e. final opinion in reference to RC01(S)/2014/SCIII/ND 54/85 CBI Vs. Farman & Ors.
postmortem report given by Board of Doctors ruled out possibility of presence of any poison including narcotic/drug. PW 19 V.B. Ramtek, Sr. Scientific Office, CFSL, who examined exhibits in this case including viscera gave the report that exhibit 1, 3A, 3B,3C and 3D gave negative test for the presence of common poison including narcotic/drug. Thus, scientific evidence in this case totally ruled out the possibility of overdose of drugs being a cause of death of deceased. Further, after recording statement of eye witnesses viz. PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki, first Investigating Officer namely Mr. Shankar Choudhary had no doubt in his mind about the cause of death. The version given by PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki was supported by postmortem report and therefore, there was no occasion for the Investigating Officer to suspect any foul play at the house of deceased. Hence, the decision of Investigating Officer not to conduct investigation at the house of deceased cannot be faulted with.
80. Injury to accused Farman is not proved by any medical document. However, it has come in the testimony of PW 5 SI Raj Kapoor Hooda that he noticed injuries on the face of accused Farman. Such minor injuries are natural when a scuffle took place between two boys. Accused Farman received these injuries on being resisted by deceased Nido Tania and hence, it cannot be said that prosecution has not explained injuries to accused Farman. In Takhaji Hiraji Vs Thakore Kuber Sing Chaman Sing and Ors. (supra) it was held that, "as a matter of law or invariably a rule that whenever accused sustained an injury in the same occurrence, the RC01(S)/2014/SCIII/ND 55/85 CBI Vs. Farman & Ors.
prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. It was further held that it is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincing brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and with holding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case."
81. In the present case material witnesses viz. PW5 Lokam Rikam, PW6 Lokam Lulu and PW11 Lomki Nalo @ Taki were examined by the prosecution. Other witnesses namely Ashish and Ashish Bhatia who are stated to have witnessed the incident were not examined. Explaining their non examination, learned Special Public Prosecutor for CBI rightly relied upon Narain and Others Vs. State of Punjab (supra), it was held that, the test is whether he is a witness, "essential to the unfolding of the narrative on which the prosecution is based". Whether a witness is so essential or not would depend whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the RC01(S)/2014/SCIII/ND 56/85 CBI Vs. Farman & Ors.
prosecution relied.
82. In any case in A.M. Kunhikova @ Koya Vs. State of Kerala MANU/SC/0749/1993, it was held that it is a well settled that if evidence of eye witnesses are held to be reliable and inspire confidence then the accused cannot be acquitted solely on the ground that some superficial injuries found on the person of accused concerned, had not been explained by prosecution.
83. Another submission of Mr. S.K. Sharma, learned defence counsel, was that stick/danda mentioned by PW 6 Lokam Lulu in his deposition is not referred to in the complaint Ex. PW3/A. This again is a minor improvement and same does not amount to contradiction.
84. Referring to the deposition of PW 1 Nido Lulu, Mr. S.K. Sharma, learned defence counsel, submitted that it has come in her deposition that after her examination, she was scheduled to take Nido Tania to hospital, which according to learned defence counsel, suggests that Nido Tania was suffering from some disease. The fact that PW 1 Nido Lulu was scheduled to take Nido Tania to hospital on 30.01.2014, it does not necessarily mean that Nido Tania was suffering from some disease. This particular line occurring in examination in chief of PW 1 is to be seen in overall context and sequence of facts given by PW 1 in her deposition. It can be safely inferred that PW 1 Nido Lulu has planned to take Nido Tania to hospital on 30.01.2014 for treatment for his injuries which Nido Tania RC01(S)/2014/SCIII/ND 57/85 CBI Vs. Farman & Ors.
suffered on 29.01.2014.
85. Next argument of learned defence counsels particularly, Mr. S.K. Sharma and Mr. Firoz Khan Ghazi was that police was informed about the incident by accused Farman which is proved from the deposition of PW 4 before whom Farman presented himself as a victim, submissions being that aggressor Farman could not have been the caller of DD No. 29A. This argument does not hold water as it is quite possible that a person after committing the crime can call the police and present himself as a victim before PCR officials and this does not necessarily prove his innocence.
86. Mr. S.K. Sharma, learned defence counsel contended that after Farman and deceased Nido Tania were taken by officials of PCR to Police Station, PW 5 Lokum Rikam, PW 6 Lokum Lulu and PW 11 Lomki Nalo who were his friends and acquaintance did not go to the Police Station with deceased, submission being that this conduct of PW 5 Lokum Rikam, PW 6 Lokum Lulu and PW 11 Lomki Nalo is unnatural conduct which makes them unreliable witness. Position in this regard was clarified by PW 5 Lokum Rikam in cross examination when he deposed that they wanted to accompany Nido Tania to the Police Station but police asked them not to come with them.
87. PW 5 Lokum Rikam, PW 6 Lokum Lulu and PW 11 Lomki Nalo were with deceased Nido Tania at the time when deceased was beaten and assaulted by accused persons at Rajasthan Paneer Bhandar, near the ambulance and near BSES office. Infact, PW 6 Lokum Lulu himself RC01(S)/2014/SCIII/ND 58/85 CBI Vs. Farman & Ors.
received injuries while trying to save deceased Nido Tania from accused persons. PW 5 Lokum Rikam, PW 6 Lokum Lulu and PW 11 Lomki Nalo deposed about what they saw, observed and experienced. Therefore, they are natural witnesses. Even otherwise each individual reacts in different way in given circumstance and no set formula can be laid in this matter. In AIR 2004 SC 2158 - Main Pal & Ors. Vs. State of Haryana & Ors., it was held that every person cannot act or react in a particular or very same way and it would depend upon the mental set up of the person concerned and the extent and nature of fear generated and consequently on the spot his reaction in a particular way has to be viewed on the totality of all such circumstances.
88. Thus, the contention that PW 5 Lokam Rikam, PW 6 Lokam Luly and PW 11 Lomki Nalo @ Taki exhibit unnatural conduct during and after the incident and they are unreliable witnesses is liable to be rejected.
89. PW 5 Lokum Rikam and PW 6 Lokum Lulu were subjected to lengthy cross examination by all accused persons but their testimonies could not be demolished and these witnesses held their ground. The fact that these witnesses were acquaintance or friends of deceased Nido Tania will not make them unreliable witnesses as was urged by learned defence counsel. Mr. A.K. Singh, learned Special Counsel for CBI, in this regard rightly relied Banti @ Guddu Vs. State of Madhya Pradesh (supra) wherein it was held as under :
" Coming to the plea that the presence of PW 1 and 2 at the RC01(S)/2014/SCIII/ND 59/85 CBI Vs. Farman & Ors.
spot of occurrence is doubtful, it is to be noticed that both PW 1 and 2 were cross examined at length. Nothing inform has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that there is no reason as to why PW 1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW 1 is a relation of the deceased and PW 2 was known to him, that perse cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view."
90. In Malhu Yadav & Ors. Vs. State of Bihar - Supreme Court of India on 01.05.2002, it was held that evidence of some of the witnesses who were relative of the victim family is no ground to reject their evidence as untrustworthy.
91. Although, PW 11 Lomki Nalo was not completely examined however, while deciding the application of CBI for recording supplementary statement of accused persons, this Court held vide order dated 11.03.2019 that testimony of PW 11 will be read in evidence with the rider that his testimony will be scrutinized with great care and caution. While passing the order dated 11.03.2019, this Court relied upon the judgment given by Hon'ble Delhi High Court on 22.12.2015 in Crl. A. RC01(S)/2014/SCIII/ND 60/85 CBI Vs. Farman & Ors.
1220/2012 - Ramesh Chand Vs. CBI. It has already been observed that PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki are consistent in their depositions and they have fully corroborated each other's version. No major contradiction interse in their depositions was pointed out. Thus, PW 5 Lokam Rikam, PW 6 Lokam Lulu and PW 11 Lomki Nalo @ Taki are reliable and trustworthy witness constituting cogent evidence in support of case of prosecution. From the conjoint reading of testimonies of PW 5 Lokum Rikam, PW 6 Lokum Lulu and PW 11 Lomki Nalo, following facts are clearly proved :
(a) On 29.01.2014, at about 11 AM, PW 5 Lokum Rikam, PW 6 Lokum Lulu and PW 11 Lomki Nalo were at the house of deceased Nido Tania when Nido Tania received an information from the sister of Larkin Doye, who was residing at A39, Lajpat Nagar, to the effect that Larkin Doye was ill and she required help of deceased Nido Tania.
(b) Thereafter, PW 5 Lokum Rikam, PW 6 Lokum Lulu, PW 11 Lomki Nalo and deceased Nido Tania proceeded to A39, Lajpat Nagar. Since, these four boys i.e. PW 5 Lokum Rikam, PW 6 Lokum Lulu, PW 11 Lomki Nalo and deceased Nido Tania, were not well versed about topography of Lajpat Nagar area, they divided themselves in two groups to search A39, Lajpat Nagar.
(c) Nido Tania and Lokam Lulu (PW6) were in one group while Lokam Rikam (PW5) & Lomki Nalo @ Taki (PW11) were in another group.
(d) Nido Tania and Lokam Lulu (PW 6) went to a shop being run in the name and style of Rajasthan Paneer Bhandar and found RC01(S)/2014/SCIII/ND 61/85 CBI Vs. Farman & Ors.
four persons i.e. accused Farman and his three associates (juvenile's in conflict with law), sitting inside the shop. Nido Tania enquired from them about H.No. A39, Lajpat Nagar. All those four persons started laughing at Nido Tania and passed racist remarks against him. This conduct of those four boys annoyed Nido Tania who broke the glass of the counter of Rajasthan Paneer Bhandar.
(e) Being antagonized by the aforesaid act of Nodi Tania, accused Farman brought out one stick (lathi) from inside the shop and started beating Nido Tania. Deceased Nido Tania was hit on his neck and arm. In the process, the stick was broken and thereafter, accused Farman started beating Nido Tania by fists. Three associates of accused Farman also gave beatings to deceased Nido Tania. Two of them caught hold of Nido Tania while other two gave beating to him.
(f) Lokam Lulu (PW6) got scared and tried to rescue deceased Nido Tania and in the process, he also suffered injuries by punch on his head.
(g) Accused Farman and his associates demanded Rs.10,000/ as compensation from Nido Tania for breaking their counter glass and ultimately the matter was settled at Rs. 7,000/ which amount was paid by deceased Nido Tania to accused Farman and his associates.
(h) Lokum Lulu (PW 6) and Nido Tania found Lokum Rikam (PW 5) and Lomki Nalo (PW 11) who had already received information about H.No. A39, Lajpat Nagar standing near ambulance. Lokum Lulu (PW6) and deceased Nido Tania told Lokum Rikam (PW 5) and Lomki Nalo (PW 11) about the quarrel that took place with Nido RC01(S)/2014/SCIII/ND 62/85 CBI Vs. Farman & Ors.
Tania. At that time, Nido Tania was bleeding from his hands and was having bruises on his face including forehead.
(i) When deceased Nido Tania, Lokum Lulu (PW6), Lokum Rikam (PW 5) and Lomki Nalo (PW 11) were standing near the ambulance, group of assailants including accused Farman, his associates (juvenile's in conflict with law), Pawan and Sunder came to them. Accused Pawan and Sunder passed some racist/adverse comments against Nido Tania and gave beating to Nido Tania. When deceased Nido Tania and his friends felt sorry, accused Pawan and Sunder stopped beating Nido Tania.
(j) Lokum Rikam (PW 5), Lomki Nalo (PW 11) and Nido Tania went upstairs to the house of Larken Doye and brought him down and Larken Doye was sent to the hospital.
(k) Lomki Nalo (PW 11) gave a cloth piece to Nido Tania to wrap his injuries.
(L) Lokum Lulu (PW6), Lokum Rikam (PW5), Lomki Nalo (PW11) and Nido Tania started going back and took different route to avoid the shop of accused Farman and they found crowd of people near BSES office who stopped Nido Tania and his friends.
(m) Accused Sunny Uppal who was in the crowd caught hold of Nido Tania and slapped him on face. Accused Farman, his three associates (juvenile's in conflict with law), Pawan and Sunder were also in that crowd. Accused Pawan, Sunder and Farman again gave beating to Nido Tania by fists.
(n) Someone called the police. PCR van came and took away deceased Nido Tania and accused Farman.
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(o) PW 8 Dewan Natung who was known to and received
call from deceased Nido Tania to come to PS Lajpat Nagar. Thereafter, Lokum Lulu, Lokum Rikam, Lomki Nalo went to PS Lajpat Nagar to take Nido Tania back from Police Station. Nido Tania and those persons went to a shop of chemist at Sadarjung Hospital to purchase tetanus injection and that the tetanus injection was administered to Nido Tania at a nearby clinic.
(p) Nido Tania could not sleep in night of 2930.01.2014. At about 3 PM on 30.01.2014, Lokum Lulu (PW 6) and famela friend of Nido Tania noticed that Nido Tania was not waking up and his pulse was not responding. Nido Tania was taken to AIIMS Hospital where he was declared brought dead.
92. As discussed above, accused persons refused to participate in TIP. The Court where accused persons were being produced during investigation or during trial is an open Court and nobody can be prevented from seeing proceedings of the Court. Investigating Officer was not expected to produce accused persons with muffled face after TIP proceedings on each and every date of hearing.
93. One of the contentions of Mr. S.K. Sharma was that driver or other attendant of the said ambulance near which Nido Tania was allegedly assaulted by accused persons were not cited as witnesses. PW 5 Lokum Rikam deposed that he does not know if the incident during which Nido Tania was slapped was witnessed by the driver or attendant of the ambulance. PW 5 Lokum Rikam also deposed that the said incident of RC01(S)/2014/SCIII/ND 64/85 CBI Vs. Farman & Ors.
slapping took place at a distance of 100150 steps away from the place where ambulance was parked. Therefore, seeing the distance between the place where ambulance was parked and the place where Nido Tania was slapped, it is not necessary that the driver or attendant of ambulance would have seen the incident and therefore, accused cannot draw any advantage from the fact that driver or attendants of the ambulance were not cited as prosecution witnesses.
94. During cross examination, PW 5 Lokum Rikam was confronted with his statement Ex. PW5/DB recorded by Investigating Officer on 06.02.2014 under Section 161 Cr.PC. In the said statement, PW 5 Lokum Rikam has given names of three assailants viz. Farman, Pawan and Sunder. PW 5 Lokum Rikam then deposed that he did not tell the police about the person who slapped Nido Tania in his statement dated 05.02.2014. The fact that PW 5 did not name any of assailants in his statement recorded on 05.02.2014 will not be of much significance when all accused persons were identified by PW 5 in the Court.
95. It has come in the deposition of PW 5 Lokum Rikam and PW 6 Lokum Lulu that they did not think it necessary to lodge any complaint to police on 29.01.2014 and this fact was vehemently raised by all the learned defence counsels during arguments. Before the death of Nido Tania, PW 5 Lokum Rikam and PW 6 Lokum Lulu were not aware of the nature and gravity of injuries suffered by deceased nor were they aware that those injuries might cause his death. Therefore, PW 5 Lokum Rikam and PW 6 RC01(S)/2014/SCIII/ND 65/85 CBI Vs. Farman & Ors.
Lokum Lulu innocently decided not to lodge any complaint about the incident.
96. A suggestion was put to PW 5 Lokum Rikam by Mr. S.K. Sharma that Nido Tania was addicted to charlie or cocaine. This suggestion was denied by PW 5 Lokum Rikam deposing that deceased was not taking any of these drugs even occasionally. During cross examination of PW 5 Lokum Rikam, it has come that it is not recorded in his statement Ex. PW5/DB given by PW 5 to police under Section 161 Cr.PC that accused Pawan and Sunder gave beating to Nido Tania. However, perusal of statement Ex. PW5/DB of PW 5 would show that PW 5 had clearly mentioned accused Pawan and Sunder in that statement.
97. PW 2 Dr. T. Milo, Additional Professional, Department of Forensic Medicine, AIIMS, New Delhi, who was one of the doctors comprising the medical board was examined as PW 2 and he deposed that after receipt of viscera report, subsequent opinion Ex. PW2/B was given. On being asked as to whether he can explain "cerebra pulmonary edema", PW 2 answered that meaning of "cerebra pulmonary edema" medically is swelling of brain and the lungs due to excessive fluid in the brain and lungs. PW 2 Dr. T. Milo asked as to under what circumstances this swelling may take place in a patient and PW 2 answered that some natural disease, some poison, head injury, etc. are main cause of this swelling.
98. Mr. S.K. Sharma, learned counsel for accused Pawan and RC01(S)/2014/SCIII/ND 66/85 CBI Vs. Farman & Ors.
Sunder, as well as Mr. Rajinder Singh & Mr. N.K. Kukreja, learned counsels for accused Sunny Uppal, submitted that as per postmortem report, there is not a single injury on the head of deceased and all injuries are simple in nature and thus, it cannot be concluded that injuries mentioned in the postmortem report which resulted in the death of deceased. Mr. S.K. Sharma referred to the examination in chief of PW 2 Dr. T. Milo wherein he has deposed that some natural disease, some poison, head injury etc. are main causes of this swelling in brain and lungs, contending that since no head injury was noticed in the postmortem report Ex.PW2/A, therefore, it is quite likely that death of deceased occurred on account of some natural disease or some poison. It is pertinent to mention here that first five injuries mentioned in the final report Ex.PW2/B are on the neck, check and near lips of deceased. Therefore, all these five injuries are on the face and neck. A suggestion was put to PW 2 Dr. T.Milo by Mr. S.K. Sharma, learned defence counsel, in cross examination that head in medical science does not include face and this suggestion was denied by PW 2, meaning thereby that head includes face in medical science. Therefore, injuries which were noticed on the face of deceased are head injuries.
99. As mentioned above, according to subsequent opinion Ex. PW2/B cause of death in this case is "cerebra pulmonary edema" and its complications as a consequence of blunt trauma to head and face. Dictionary meaning of blunt trauma is physical trauma to a body part, either by impact, injury or physical attack.
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100. PW 2 Dr. T. Milo deposed that as per report Ex. PW2/B, injuries found on the person of victim on his neck and face were caused by blunt force. PW 2 Dr. T. Milo was asked as to whether in case of blunt trauma on head, there has to be some apparent injury/mark/swelling on the scalp of victim and PW2 deposed that there may be visible injury mark or swelling on the scalp of victim in case of blunt, trauma to head, however, it is not mandatory in all the cases. Thus, PW2 Dr. T Milo gave valid and convincing answer to the question put by Mr. S.K.Sharma, learned defence counsel and he deposed that in case of blunt trauma to head, it is not necessary that there must be visible injury mark or swelling on the scalp of victim. Similarly on being asked that if victim suffered injuries on his head being hit by a stick as per the case of prosecution, in that case mark/injury/swelling had to be visible on his scalp, PW2 Dr. T. Milo responded that if a person is hit by danda there could have been injury mark on his scalp but it was not necessary in every case and it was a general position. Thus, as per the final opinion Ex.PW2/B given by medical board and solid explanation given by PW2 in his examination in court, cause of death in this case was swelling in brain and lungs due to the injuries suffered by deceased and these injuries were caused by blunt force. Chemical examination report Ex.PW19/A ruled out any poison including narcotic/drugs. Accused persons have not been able to pin point any medical evidence suggesting that deceased was suffering from some natural disease. Therefore, after ruling out natural disease and poison as cause of swelling in brain and lungs of the deceased, the only reason as per the explanation given by PW2 Dr. T. Milo for swelling in brain and lungs is RC01(S)/2014/SCIII/ND 68/85 CBI Vs. Farman & Ors.
head injury. PW2 Dr. T. Milo also denied the suggestion that none of the injuries were found on the person of the victim was responsible for swelling over brain of the victim.
101. Another contention of Mr.S.K.Sharma, learned counsel for accused Pawan and Sunder was that name of tetanus injection was not obtained by the Investigating Officer and same was not sent to Medical Board which conducted the postmortem on the body of deceased. It is pertinent to note here that as per chronology of events given by PW13 SI Amit Kumar, postmortem on the body of deceased was conducted first by board of doctors on 31.01.2014 and thereafter complaint Ex.PW3/A was given by PW6 Lokam Lulu culminating in the registration of the FIR. Naturally statement of witnesses viz. PW5 Lokam Rikam, PW6 Lokam Lulu and PW11 Lomki Nalo @ Taki U/s. 161 CrPC were recorded subsequently. Therefore, the version of PW5 Lokam Rikam, PW6 Lokam Lulu and PW11 Lomki Nalo @ Taki and other witnesses that deceased Nido Tania was administered Titnus injection at a clinic while going from PS Lajpat Nagar to his home was not in the knowledge of PW13 SI Amit Kumar so as to inform the medical board of doctors about Titnus injection being administered to the deceased.
102. It is reflected from the deposition of PW5 Lokam Rikam that initially accused Pawan and Sunder were not identified by PW5 and when leading question was put by learned Special Public Prosecutor for CBI to PW5 with the permission of court, PW5 identified accused Pawan and RC01(S)/2014/SCIII/ND 69/85 CBI Vs. Farman & Ors.
Sunder deposing that he knows both of them by face but he does not know their names and both accused Pawan and Sunder were present near Ambulance on that day and were involved in beating Nido Tania.
103. Mr. S.K.Sharma, learned defence counsel submitted that the leading question put by learned Special Public Prosecutor for CBI to PW5 in his examination in chief without declaring him hostile was not permissible and hence, the facts deposed to by PW5 in response to the leading question to be excluded from consideration and it is obvious that PW5 failed to identify accused Pawan and Sunder. Reliance was placed by learned defence counsel on AIR 1993 SC 1892 Varkey Joseph Vs. State of Kerala wherein it was held that prosecution cannot put leading questions which a witness intends to given against the accused.
104. Perusal of the deposition of PW5 Lokam Rikam would show that learned Special Public Prosecutor for CBI sought permission of the court to put leading question to PW5, arguments were heard and learned Special Public Prosecutor for CBI was permitted to put leading question to PW5 (the exact words mentioned in the testimony of PW5 in this regard are "Heard. Allowed"). If accused persons were aggrieved by the permission granted by the court to learned Special Public Prosecutor for CBI to put leading question to PW5, they could have challenge the same by way of appropriate legal proceedings. However, no such challenge was laid by accused persons after permission was granted to learned Special Public Prosecutor for CBI. Once the permission was granted by the court to RC01(S)/2014/SCIII/ND 70/85 CBI Vs. Farman & Ors.
learned Special Public Prosecutor for CBI to put leading question to PW5 and same was not challenged by accused persons by way of appropriate legal remedy, the issue was settled finally and same cannot be reagitated at the final stage. A criminal court cannot review its own order except to correct clerical mistake under section 362 Cr.PC. In any case leading question was about the clarification regarding the date when PW5 Lokam Rikam came to the court to inquire about proceedings of case and identified and he identified accused persons. Leading question was not about identification of accused. As per Section 42 of Indian Evidence Act, the Court shall permit leading questions as to matters which are introductory or undisputed, to which have, in its opinion, been already sufficiently proved.
105. The next contention of Mr. S.K.Sharma, learned defence counsel was that when PW12 ASI Pritam Singh visited the place of occurrence i.e. A83, Lajpat Nagar alongwith deceased Nido Tania and accused Farman, deceased Nido Tania did not inform PW12 that the incident had already taken place at two other places. At that time only general inquiries were conducted by PW12 as FIR had yet not been registered and no statement of any witnesses Under Section 161 CrPC was being recorded. Thus, any omission on the part of deceased Nido Tania to inform PW12 about the incident at two other places is immaterial.
106. Nonexamination of witnesses namely Arjun and Ashish Bhatia mentioned in the cross examination of PW12 ASI Pritam Singh was another point highlighted by learned defence counsels, submissions being RC01(S)/2014/SCIII/ND 71/85 CBI Vs. Farman & Ors.
that had these witnesses been examined, they would have given clear picture about the entire incident in the court and these witnesses were deliberately concealed by prosecution from the court. In this regard Mr. A.K.Singh, learned Special Public Prosecutor for CBI has rightly relied upon Banti @ Guddu Vs. State of Madhya Pradesh decided by Hon'ble Supreme Court of India on 04.11.2003 wherein it was held as under: "In trials before the court of sessions the prosecution "shall be conducted by a Public Prosecutor" . Section 226 of the Code of Criminal Procedure, 1993 (for short 'the Code') enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of accused. If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case, he is at liberty to state before the court that fact. Alternatively he can wait further and obtain direct information about the version which any particular witness might speak in court. If that version is not supported by the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.
When the cases reaches the stage envisaged in Section 231 of Code, the Session Judge is oblige 'to take all such evidence as may be produced in support of the prosecution'. It is clear from the said Section that Public Prosecutor is expected to produce evidence 'in support of the prosecution' and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to RC01(S)/2014/SCIII/ND 72/85 CBI Vs. Farman & Ors.
which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to chose two or some among them alone so that the time of the court can be saved from repetion deposition on the same factual aspects. That principle applies when there are too many witnesses cited, if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but, also help the court considerably in lessening the work load. Time has come to make every effort possible to lessen the work load, particularly those courts crammed with cases, but without impairing the cause of justice."
107. Therefore, no fault can be found with the decision of Investigation Officer or Prosecutor not to examine all the witnesses who are stated to have witnessed the incident.
108. Mr. S.K. Sharma, learned defence counsel, submitted that PW 6 Lukum Lulu has deposed differently at different places as regards the length of stick by which deceased Nido Tania was allegedly hit by accused Farman. In examination in chief, PW 6 Lukum Lulu has deposed that the stick was about 1 ½ - 2 ft long, while in cross examination, PW 6 Lukum RC01(S)/2014/SCIII/ND 73/85 CBI Vs. Farman & Ors.
Lulu has deposed that the stick was 1 ft long. When a person is hit by another person with stick, the injured person is not expected to note down the exact length of the stick. Rather, he would be more focused in saving himself from the assault
109. Mr. S.K.Sharma, learned defence counsel for accused Pawan and Sunder and Mr. Rajinder Singh & Mr. N.K.Kukerja, learned defence counsel for accused Sunny Uppal submitted that allegations against accused Pawan, Sunder and Sunny Uppal is that they slapped deceased Nido Tania and the act of slapping will at the most be covered U/s 323 IPC and hence they cannot be convicted U/s 304 IPC. It stands proved from the cogent and reliable evidence adduced by the prosecution that deceased Nido Tania was beaten and assaulted at three places viz. Rajasthan Paneer Bhandar, near Ambulance and near BSES office on 29.01.2014. All accused may not be present at the aforesaid three places occurrence and deceased might not have been assaulted by all the four accused at these three places at the same time. At Rajasthan Paneer Bhandar, deceased Nido Tania was beaten by accused Farman and his three associates (juveniles in conflict with law), these persons alongwith accused Pawan and Sunder assaulted deceased Nido Tania near Ambulance. Accused Farman and his three associates (juveniles in conflict with law), Pawan and Sunder were joined by Sunny Uppal near BSES Office where deceased Nido Tania was again beaten. It is amply clear that the offence committed at one place was connected with the offence committed at two other places in a sequential manner. The crime was committed by all the accused persons in a well RC01(S)/2014/SCIII/ND 74/85 CBI Vs. Farman & Ors.
planned manner in furtherance of their common intention as can be seen from the sequence of events narrated above. Therefore, acts/offence committed at one place cannot be seen in isolation. As per postmortem report, nine injuries were noticed on different parts of the body of decease Nido Tania. It is nobody's case that all these injuries were caused at one place or by one person. It was the cumulative effect of these nine injuries received by deceased Nido Tania at three different places at the hands of all accused persons which resulted in his death. It is pertinent to mention here that all the accused persons have been charged U/s. 304 /34 IPC. When section 34 IPC in invoked and it is proved that the crime was committed by accused persons in furtherance of their common intention, every person sharing that common intention is liable for the acts of other person sharing the same intention. Therefore, accused Pawan, Sunder and Sunny Uppal cannot contend that they merely slapped the deceased and hence are liable at the most under Section 323 IPC. When the evidence adduced on record is seen in its entirety and in holistic manner, it becomes abundantly clear that all the accused persons in furtherance of their common intention caused injury to deceased Nido Tania and as per scientific evidence, those injuries were likely to cause death of Nido Tania.
110. Mr. S.K.Sharma, learned defence counsel while cross examining the prosecution witnesses and during the course of arguments emphasized that police officials including the investigating officer, doctor comprised in the medical board and other persons associated with the investigation of this case were under tremendous political and media RC01(S)/2014/SCIII/ND 75/85 CBI Vs. Farman & Ors.
pressure which resulted in the false implication of accused persons in this case. However, Mr. S.K.Sharma, learned defence counsel has not explained as to what kind of pressure was on PW5 Lokam Rikam, PW6 Lokam Lulu and PW11 Lomki Nalo @ Taki to falsely implicate the accused persons if accused persons were not involved in the incident. Accused persons have not hinted at any previous enmity between them and PW5 Lokam Rikam, PW6 Lokam Lulu and PW11 Lomki Nalo @ Taki and have not explained as to why they were identified in the court by these witnesses as same persons who gave beating to deceased Nido Tania.
111. Mr. Rajinder Singh, learned counsel for accused Sunny Uppal, submitted that father of accused Sunny Uppal died on 3.2.2014 and prior to that he was in comma for many days and accused was attending to his father and hence his involvement in the crime is totally ruled out. Accused Sunny Uppal has not adduced any evidence to prove this contention.
112. In State through P.S.Lodhi Colony New Delhi (supra), It was held that to make out an offense U/s. 304 Part II IPC, the prosecution has to prove the death of the person in question and that such death was caused by the act of the accused and that he knew such act of his is likely to cause death. In the present case the facts proved against accused are U/s. 304 part I IPC as will be discussed in the later part of the judgments.
113. In Kali Ram (supra) it was held that another golden thread which runs through the web of the administration of justice in criminal RC01(S)/2014/SCIII/ND 76/85 CBI Vs. Farman & Ors.
cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favorable to the accused should be adopted In the present case facts proved on record established guilt of accused beyond and trust of doubt and there are no two views.
114. A point vehemently stressed by learned defence counsels was that histopathology examination of brain, lungs and kidney of deceased as mentioned in the deposition of PW2 Dr. T. Milo and in the final opinion Ex.PW2/B was not filed with the chargesheet and thus, a very vital document was withheld from the court by the prosecution. Final opinion Ex.PW2/B is based on the postmortem, histopathological findings and medical analysis report. According to PW2 Dr. T. Milo subsequent opinion given after receipt of viscera report. No suggestion was given to PW2 Dr. T. Milo or to the Investigating Officer by the accused persons that histopathological report has been deliberately concealed from the court or that histopathological findings were in favour of accused. Therefore, accused cannot take any advantage from the fact that histopathological findings were not made part of the chargesheet. In any case, chemical examination report mentioned in the final opinion Ex.PW2/B came on record as Ex.PW19/A which ruled out common poison including narcotic/drugs.
115. In Dev Raj (supra), it was held that from the medical evidence, it is clear that death was not direct result of the injuries caused to RC01(S)/2014/SCIII/ND 77/85 CBI Vs. Farman & Ors.
the deceased during the occurrence and it is possible that the secondary haemorrhage could have taken place between 4 to 14 days. It was further noted that occurrence took place on 02.10.1979 and injured died on 19.11.1979 i.e. nearly one and half months later. In the present case, injured died within 24 hours and the death of injured was direct result of injuries suffered by him.
116. In State of Karnataka Vs. Shivalingaiah (supra), charge against respondent was that after an altercation he suddenly pulled the deceased Giri Gowda by his testicles and squeezed the same as a result of which he fell down unconscious and died almost instantaneously. In these circumstances, convict of respondent was altered from Section 323 IPC to Section 325 IPC. Facts of present case are different as in the present case, deceased received nine injuries.
117. In Mahender Kumar (supra), facts of the case were noted down in para 12 as under :
" Bal Kishan died after 28 days of the incident. Doctor who conducted the postmortem was feeling shy of the stating if he died because of the negligence of the doctor. This fact has to be considered because firstly Bal Kishan had been admitted in Hindu Rau Hospital and thereafter he was shifted to Ganga Ram Hospital. It is not in controversy that death had been caused because of certain infections. In addition to that the size of the injury in the MLC and the size of injured no. 4 in the postmortem report did not reconcile. As already referred to above depth RC01(S)/2014/SCIII/ND 78/85 CBI Vs. Farman & Ors.
of the injury had not been given by the doctor who had examined the patient. All these factors clearly show that the death could not have been direct result of the said injury. In that view of the matter it could not be stated that the accused had the intention or could be attributed only to cause the death of Bal Kishan. At best therefore, the appellants could only be held guilty of the offences punishable under Section 325/34 Indian Penal Code.". It is clear from factual position of Mahender Kumar (supra) narrated above that said case is distinguishable from the case in hand on facts.
118. In Anil Kumar Vs. State of Rajasthan (supra), appellant Anil Kumar had argument with deceased and appellant kicked the deceased on his stomach and ran away. Deceased Shyam Lal came back to his house. In the morning, his stomach pain increased and therefore, he took some medicines at home. Since his condition was not improving, on 23.07.2010, his mother hospitalized him in the government hospital and he was referred to PBM Hospital at Bikaner where he was operated and he died on 25.07.2010. Conviction of appellant was reduced from Section 302 IPC to one under Section 325 IPC. In the present case, deceased received nine injuries and died within 24 hours of receiving injuries. Therefore, factual position of present case is entirely different.
119. In Krishnegowda and Ors. Vs. State of Karnataka (supra), it was held that once there is a clear contradiction between the medical and RC01(S)/2014/SCIII/ND 79/85 CBI Vs. Farman & Ors.
ocular evidence coupled with severe contradictions in the oral evidence, clear latches in investigation, then the benefit of doubt has to go to the accused. In the present case, there is no contradiction between the medical and ocular evidence. The court also does not find any latches in the investigation and hence this judgment will not help the accused.
120. PW2 Dr. T. Milo on being cross examined by Mr. Rajinder Singh, learned defence counsel that accused Sunny Uppal, denied the suggestion that deceased Nido Tania died due to over dose of drugs and deposed that no one told the medical board before postmortem that the deceased Nido Tania had vomited or purged. PW2 Dr. T. Milo deposed that in case of poisoning if a concerned person vomits or purges immediately thereafter, there are chances that some poison is eliminated/vomited out. The purpose for putting this question to PW2 was to emphasis that proper investigation to find out whether deceased Nido Tania had vomited before postmortem report was not conducted, to rule out the possibility of that due to poisoning. However, even as per the deposition of PW2, even in case a person vomits or purges, there are chances of some poison eliminated or vomited out, meaning thereby that complete poison is not eliminated and will be detected in chemical examination or postmortem. However, no poison was detected even in chemical examination or viscera or postmortem of the deceased.
121. Mr. S.K. Sharma, learned defence counsel, referred to the charge framed on 01.10.2014 to contend that as per the charge, incident RC01(S)/2014/SCIII/ND 80/85 CBI Vs. Farman & Ors.
happened at one place i.e. A83, Lajpat Nagar and two other places of occurrence are not mentioned in the charge. This contention of Mr. S.K. Sharma is answered by Section 215 Cr.PC which provides that as under :
" No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice".
122. From lines of cross examination adopted by accused persons during trial and points raised during course of arguments, it is clear that accused persons very well knew particulars of charge against them. Eye witnesses viz. PW5 Lokam Rikam, PW6 Lokam Lulu and PW11 Lomki Nalo @ Taki were cross examined as to their previous statement recorded by police/CBI where all three places of occurrence have not been mentioned by them in their deposition before the Court. Thus, it is concluded that nonmentioning of all three places of occurrence in the charge has not misled any of the accused nor same has occasioned failure of justice.
123. The charge against accused persons was framed under Section 304/34 IPC. Section 304 IPC is in two parts. First part lays down punishment of imprisonment for life or imprisonment for either description for a term which may extend to 10 years alongwith fine, if act by which death is caused is done with the intention of causing death or to RC01(S)/2014/SCIII/ND 81/85 CBI Vs. Farman & Ors.
cause such bodily injury as is likely to cause death.
Second part of Section 304 IPC provides punishment of imprisonment upto 10 years or fine or with both, if the act is done with knowledge that it is likely to cause death, but without any intention to cause death, to cause such bodily injury as is likely to cause death.
124. Although, it was not specified as to whether accused persons are being charged under Section 304 Part I IPC or under Section 304 Part II IPC when charge was framed against them, however, from the language employed in charge and evidence led subsequently, it is clear that accused persons were charged under Section 304 Part I/34 IPC. In any case, accused were not misled and hence, there was no consequent failure of justice due to omission on the part of Court to specify that charge is being framed under Section 304 Part I/34 IPC. Reference can be made to 1993 (1) Bombay CR 574 Panduperry Vs. State of Maharashtra, wherein it was held that merely defect in framing of charge, infact nonframing of charge is not by itself an illegality which vitiates the trial. It was further held that what has to be established is the prejudice to the person prosecuted consequent to nonframing of charge or defect in framing of charge.
125. In (1994) 4 Bom CR 1 Chandu Parappa Kumbhar & Ors. Vs. The State of Maharashtra, it was held in para No.7 as under: " It is in these circumstances that though we accept the RC01(S)/2014/SCIII/ND 82/85 CBI Vs. Farman & Ors.
position that a better job could have been done while framing the charge, we are not prepared to hold that the accused were either handicapped, prejudiced or adversely affected in the conduct of the evidence as a result of the manner in which the charges have been framed. The basic ingredients are present and to that extent, therefore, the objection that has been canvassed by Shri Pradhan with regard to the applicability of the principle of a defective charge that vitiated a trial must necessarily be overruled."
126. Accused persons cross examined material witnesses viz. PW5 Lokam Rikam and PW6 Lokam Lulu, PW 2 Dr. T. Milo and even police witnesses on the point that simple slap cannot cause death of a person. From the line of cross examination adopted by accused persons, it can be seen that accused persons were very well aware of the charge framed against them which they were defending.
127. Postmortem report Ex. PW 2/A and subsequent opinion Ex.PW2/B established direct nexus between injuries received by Nido Tania at the hands of accused persons and his death. Nine injuries are mentioned in the postmortem report Ex. PW2/A, out of which five injuries are on the face and neck of deceased Nido Tania. Accused persons have not been able to prove that any medical intervention had taken place between the date of incident and date of death of deceased. The version given by PW5 Lokam Rikam, PW6 Lokam Lulu and PW11 Lomki Nalo @ Taki is fully corroborated by postmortem report Ex.PW2/A and subsequent RC01(S)/2014/SCIII/ND 83/85 CBI Vs. Farman & Ors.
opinion Ex.PW2/B. It is clear from depositions of PW5 Lokam Rikam, PW6 Lokam Lulu and PW11 Lomki Nalo @ Taki that accused Farman, Pawan, Sunder and Sunny Uppal in furtherance of their common intention caused injuries on various parts of body of deceased Nido Tania.
128. A person can be held guilty under second part of Section 299 IPC when death is caused with intention of causing such bodily injury as is likely to cause death. The guilty intention or mensrea is subjective aspect as it is entertained in the mind, but same can be inferred from the physical conduct of the accused. Intention of a person can be inferred by his conduct or actions because actions are expression of intention expressed at physical level. Deceased was assaulted by accused persons at three different places which clearly show the intention of accused persons to cause injuries to the deceased. Therefore, injury received by the deceased were caused intentionally by accused persons. Whether those injuries were likely to cause death or not, is to be determined with reference to scientific evidence vis. Postmortem report Ex.PW2/A and subsequent opinion Ex.PW2/B. It is clear from the postmortem report Ex.PW2/A and subsequent opinion Ex.PW2/B that death of deceased was caused because of injuries received by him. Thus, acts of accused persons falls within second part of Section 299 IPC. Hence, prosecution has proved the case Under Section 304 part I of IPC. As per subsequent opinion Ex.PW2/B injuries received by Nido Tania were likely to cause his death. Thus, all ingredients of Section 304 part I /299 IPC are proved in this case. Hence, it is concluded that prosecution succeeded in proving the charge U/s. 304 Part I /34 IPC RC01(S)/2014/SCIII/ND 84/85 CBI Vs. Farman & Ors.
against accused Farman, Pawan, Sunder and Sunny Uppal beyond reasonable doubt. Accused Farman, Pawan, Sunder and Sunny Uppal are accordingly convicted under Section 304 Part I/34 IPC.
129. Accused Farman is already in j/c. Accused Pawan, Sunder and Sunny Uppal are taken into custody. Accused persons will be heard on the point of sentence on 04.09.2019 at 2.00 PM.
Announced in open Court.
On 03.09.2019 (Sandeep Yadav)
ASJ02/South East District
Saket Courts/New Delhi
RC01(S)/2014/SCIII/ND 85/85
CBI Vs. Farman & Ors.