Delhi District Court
State vs . Raj Kumar @ Ballu on 31 March, 2021
IN THE COURT OF SAMAR VISHAL,
ADDITIONAL SESSIONS JUDGE-08,
WEST DISTRICT : TIS HAZARI COURTS : DELHI
CNR NO.: DLWT01-009246-2017
SC 599/2017
State Vs. Raj Kumar @ Ballu
FIR No. 294 /2017
Police Station: Mianwali Nagar
U/s302/307 Indian Penal Code
In the Session Case of :
State
Versus
Raj Kumar
R/o Jhuggi No. 108,
Near Water Tank No. 2,
Udyog Nagar,
Delhi
Date of Institution : 12.10.2017
Date of reserving Judgment : 19.03.2021
Date of pronouncement : 31.03.2021
Appearances
For the State : Mr. Santosh Kumar,
Additional Public Prosecutor
For accused : Mr. Anil Soni, Advocate
FIR No. 294/2017,
State vs Raj Kumar @ Ballu
u/s 302/307 IPC
Police Station : Mianwali Nagar Page No. 1/42
JUDGMENT
1. This is a trial of the murder of Pankaj s/o Sadhu Sharan and an attempt to murder Vijay Kumar in the night of 25/26.06.2017 at 12.30AM in a single incident and Raj Kumar@Ballu is accused of these crimes and is therefore prosecuted in this case. The determination of the fact whether deceased Pankaj was murdered and murder of Vijay Kumar was attempted by the accused as alleged by the prosecution is the subject of the present judgment of this trial in which the accused Raj Kumar@Ballu stood accused of murdering Pankaj and attempt of murdering Vijay Kumar before this Court.
2. The prosecution estimates the time of assault on all the three victims at about 12.30 AM in the night. The first information regarding a fight, was received at about 12.50 AM from the mobile phone 9718646186 by a man named Gaurav which was reduced into writing vide DD entry No.5A(Ex.P3). This information was marked to Assistant Sub- Inspector (ASI) Dalbir Singh for taking necessary action. ASI Dalbir Singh and Constable (Ct.) Jitender reached the spot and came to know that a fight happened there sometime before, in which three persons were stabbed by a knife. Out of them, Puran and Vijay were taken by the PCR van to Sanjay Gandhi Memorial Hospital (SGM hospital) and the third injured Pankaj was taken to some unknown hospital by his father Sadhu Sharan. At 1.15 AM, another information was received in the police station that a person named Pankaj s/o Sadhu Sharan was brought dead to Bhagwan Mahavir hospital with knife stab injury. This information was marked to the investigating officer Inspector K.B. Jha. This information was recorded vide DD No. 7A(Ex.P5). Pankaj was brought dead on arrival in the casualty of the hospital. The investigating officer shifted the dead body of Pankaj in Sanjay FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 2/42 Gandhi Hospital mortuary. Then the investigating officer went to the casualty of Sanjay Gandhi hospital to look for other injured and the details of the incident. He did not find Puran there, but the injured Vijay was present in the hospital. According to his MLC(medico legal certificate), Vijay received an incised wound over the right side of his chest by a sharp object. The investigating officer recorded his statement which became the basis of the registration of the FIR of this case and Vijay became the complainant. According to his complaint (ExPW1/A), he used to reside in Jhuggi No. 771 near water tank, Udyog Nagar, Peeragarhi. His age at the time was 21 years. He used to work in a nearby hotel(dhaba). In the night of incident, at around 12.30 a.m., after dinner, he came out in his lane(gali) and was strolling in front of factory at H- 37. At the same time the accused Raj Kumar@Ballo who also live, in a nearby Jhuggi No. 108, came there. He was in an inebriated state and started abusing the complainant with filthy words. He then said that what the complainant was doing there at that time. When complainant Vijay called on the accused not to abuse him, the accused grabbed his collar on which a physical fight started between them. The accused Raj Kumar then rushed to his house uttering " to wait to see that what he can do". The complainant did not retaliate, instead drawn back and walked towards his house. But before he could reach his house, the accused Raj Kumar came running to him with a knife in his hand and stabbed him on the right side of his chest with that knife. The complainant then again retreated to his house to save himself from further assault. However, his screams bothered his brother Puran and deceased Pankaj who also live in the same lane (gali) who came to his rescue and to lend a helping hand, on which the accused attacked both of them with the same knife. The knife stab to Pankaj was fatal and he collapsed there. After sometime, PCR van came and took him and his brother Puran to Sanjay Gandhi hospital. The FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 3/42 complainant finally said that the accused had made a deadly attack on him and Pankaj and legal action be taken against him.
3. At around 3.25 AM, after considering the entire facts, the investigating officer got registered the FIR under sections 302/307 of the Indian Penal Code. The crime team was called at the scene which inspected and photographed it. During investigation, the investigating officer prepared a site plan at the instance of the complainant. With the help of the crime team, the investigating officer collected different exhibits and seized them. The exhibits were sealed with the seal of BS and the seal was handed over to HC Premvir. The investigation officer recorded the statements of the witnesses under section 161 Cr.PC. On 27.06.2017, the post mortem of Pankaj was done and then his body was given to his family. The exhibits of the case were collected from mortuary. The doctor opined the cause of death as haemorrhagic shock due to abdominal injury No.1which is sufficient to cause death in the ordinary course of nature. The injury was caused by a sharp-edged weapon. The investigation officer then looked for the accused Raj Kumar. On 30.06.2017, the accused surrendered before the court. After taking permission of the court, the investigating officer interrogated him in which he confessed his crime. He also disclosed that he can get recovered his concealed clothes and the knife used by him to commit this crime. He was taken on police remand. The accused then from his Jhuggi No.790 Udyog Nagar, Peeragarhi got recovered the bloodstained knife to the police. The investigating officer made a sketch of the knife and seized it. The accused then got recovered his clothes from the bushes in front of LNJP hospital which also had blood marks. The investigating officer also seized the clothes and sealed them. The exhibits were sent to Forensic Science Laboratory for examination and expert opinion. The investigating officer then obtained the MLCs of injured Vijay and Puran. After collecting all of FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 4/42 the relevant documents, recording the statements of the witnesses and doing other necessary things for the purpose of the investigation, the investigation officer concluded the investigation and filed the chargesheet in the court. The FSL result was also filed during the proceedings of the case on 29.11.2017.
4. The charge sheet in this case was filed on 29.09.2017. The case was committed to the court of Session on 09.10.2017. On 20.11.2017, charge was framed against the accused Raj Kumar under section 302 IPC which stated that he committed murder of Pankaj s/o Sadhu Sharan by inflicting stab injury in his abdomen. Charge was also framed against the accused Raj Kumar under section 307 IPC which stated that he attempted to kill complainant Vijay by inflicting stab injury. The accused Raj Kumar pleaded not guilty and claimed trial.
5. During trial, the prosecution has examined twenty-one witnesses, out of which PW1(prosecution witness 1) Vijay Kumar the complainant of this case and his brother Puran PW2, are the most crucial witnesses because they both are eye witnesses to the murder of Pankaj and are also injured witnesses because they were themselves injured in the incident as per the prosecution's case. Further the medical evidence given by the doctors and proved reports of FSL along with the evidence of the investigation officer are also important pieces of evidences. The accused has also admitted certain documents under section 294 Cr.PC during the trial. Rest are formal witnesses associated with investigation of the case. I will now explicate each and every important piece of evidence in detail.
6. The complainant Vijay Kumar as PW1 deposed on 28.11.2017, in the court that he works in a dhaba (roadside restaurant). This witness could not dredge his memory to recall the exact date of the incident. He stated that he FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 5/42 did not remember the month of the incident. He testified that in the night of 25/26, this incident took place. It was summer season, and the incident took place around 3/4 months back. At about 12:30 AM, after taking dinner he came on the street outside his house. The accused Raj Kumar came there and demanded money from him for liquor. Raj Kumar also abused him and said that he will see him in the words "main abhi tujhe batata hoon" and ran towards his house/ Jhuggi. Rajkumar brought a knife from his Jhuggi and again started abusing him and stabbed his chest with the knife. He raised the alarm on which his brother Puran and his neighbour Pankaj came to his rescue. Raj Kumar then stabbed Pankaj and his brother Puran with that knife. Raj Kumar was in inebriated state. He and his brother Puran were taken to the hospital by PCR van whereas Pankaj was taken to the hospital by friends. Pankaj was critically injured in the incident. His intestine came out due to which he collapsed on the spot itself. He identified the accused Rajkumar during his evidence in the court. This witness proved his complaint which was recorded in Sanjay Gandhi Memorial Hospital as Ex.PW1/A on which this FIR was registered. There is nothing in the cross examination of this witness to discredit or impeach his oral evidence given before the court. In cross examination a suggestion was given to him by the defence counsel that there is an old enmity between the accused and this witness which this witness denied. He also denied a suggestion that he along with Puran, Ajay, Panka, Sadhu Ram, Chandan, Neeraj, Gopal and Lakha attacked the house of the accused. He also denied the suggestion that the deceased Pankaj brought the knife and attacked the pregnant wife of accused. He stated that Pankaj was taken to the hospital by his friends. He denied the suggestion that the accused had not inflicted the knife injury to him or that he sustained the injury due to a scuffle between him and his friends. He denied the suggestion that he run a gang with Puran, Ajay, Panka, Chandan, Neeraj, Gopal, Sukhu, FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 6/42 Suraj, Vijay and Lakha for committing offences like snatching and robbery. He admitted that he knew these persons as they live in the same locality. He denied the suggestion that the wife of the accused was also injured in the incident. He also denied the suggestion that the accused has been falsely implicated in this case due to previous enmity. Though a number of suggestions have been given by the accused during the cross-examination of this witnesses but none of the facts put to this witness have otherwise been proved by the accused during the trial.
7. PW2 Puran, the second eyewitness of this case also testified on similar lines. He stated in the court on 11.12.2017, that he was a helper to the drivers of Jagdish Grover who has commercial vehicles. In the night of 25/26.06.2017 at around 12.30 AM, he was present in his house and heard screams from the road. He went outside his house and saw his brother Vijay, soddened with blood. Vijay told him that the accused Raj Kumar had stabbed him with a knife. He immediately rushed back to his house to inform his family members. He then saw that the accused Raj Kumar stabbed Pankaj with the knife near his house. Pankaj immediately collapsed on the ground. He immediately rushed to help Pankaj when the accused Raj Kumar stabbed him also with the same knife. He sustained injury on his left palm while trying to deflect from his hand, the knife attack on his chest. Public persons and onlookers started gathering there. The wife of accused Raj Kumar, also came there and objected to the accused on which Raj Kumar pushed her. The accused then went inside his house with the knife and after some time came out and ran inside his sister's house which was in front of his house. He finally made a dash from the scene. Pankaj was shifted to hospital immediately. He and his brother Vijay were taken to SGM Hospital by PCR van. He was referred to RML hospital whereas his brother Vijay was treated in SGM hospital. After his medical treatment, he was discharged. Police FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 7/42 recorded his statement in the police station. He identified the accused Raj Kumar in the court during his evidence. Like in the cross examination of complainant, there is nothing in the cross examination of this witness also to discredit or impeach his oral evidence given before the court. In cross examination, this witness admitted that he knew Ajay, Sadhu Ram, Chandan, Neeraj, Gopal, Lakha, Ajay (cousin of Pankaj), Sukkhu, Vijay Suraj and Rajja. He denied the suggestion that a quarrel took place between the family members of accused and these persons. He also denied the suggestion that he and the aforesaid persons went to the house of accused in inebriated state or that they have thrown stones at the house of accused. He denied the suggestion that the accused Pankaj and Vijay hit the wife of accused on her head. He denied the suggestion that Pankaj hit the wife of accused with wooden sticks. In cross-examination he again reiterated that the accused Raj Kumar stabbed Pankaj. He stated that he has cordial relations with the accused. He denied the suggestion that it was Pankaj who brought the knife from his house or that the accused has not stabbed any person. He denied the suggestion that the knife injuries sustained by both these witnesses were inflicted by Pankaj to them. Again, though a number of suggestions have been given by the accused to this witness during the cross-examination but none of the facts put to this witness have otherwise been proved by the accused during the trial. The accused has not examined his wife to show that she was injured in the incident. The defence is not able to elicit any major contradiction or deviation in the testimony.
8. The next important witness PW14, is the doctor who first examined the deceased Pankaj. Dr. Soma Roy Sr. Medical Officer, had examined the deceased Pankaj on 26.06.2017 at 1.06 AM in casualty of the Bhagwan Mahavir Hospital, Pitam Pura, Delhi. According to her evidence, Pankaj was a male aged 18 years who was brought in casualty in unresponsive state by FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 8/42 his father Sadhu Sharan. He was declared brought dead on arrival in the hospital casualty vide MLC Ex PW14/A. The dead body was handed over to a ASI Dalbir for post-mortem. She was not cross examined by the defence.
9. PW18 is Dr. Anurag Thapar who conducted the post-mortem of Pankaj. He deposed that on 27.06.2017, he conducted post-mortem on the dead body of deceased Pankaj, son of Sadhu Sharan, a male aged 18 years at the request of Inspector Gurnam Singh of police station Miawali Nagar. The dead body was received with fifteen inquest papers. After post-mortem, he prepared his post-mortem report ExPW18/A. According to this report the time since death was found approximately 36 hours as per the inquest documents. He reached the opinion that the cause of death was hemorrhagic shock due to abdominal injury and injury no.1 mentioned in the post-mortem report was sufficient to cause death in the ordinary course of nature which was caused by a sharp single edged weapon. It was also written in the post-mortem report that the viscera and blood of the deceased was preserved to rule out further intoxication. Later on, the FSL report Ex.PW21/E has shown that the deceased was also intoxicated at the time of incident as ethyl alcohol was found in his viscera and blood (176.1 mg/100 ml of blood). The inquest papers, sealed viscera and cloths of the deceased and sealed blood-stained gauze were handed over to the investigating officer along with the sample seal of the department after the post-mortem examination. On 23.09.2017, he received an application of the investigating officer of this case for subsequent opinion. He received one sealed parcel with the post-mortem report Ex PW18/A. He opened the parcel. It had a single edged knife. He took it out and prepared the sketch of the said knife which is Ex PW18/B. After going through injury no.1 in the post-mortem report, he reached the conclusion that injury no.1 mentioned in the post-mortem report was possible with the said knife or by other similar one. He proved his FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 9/42 subsequent opinion in this regard Ex PW18/C. He sealed the knife again and handed it over to the investigating officer along with his opinion and asked the investigating officer to send it to forensic science laboratory for other opinions. Now it is pertinent to mention here that there were two external injuries to Pankaj reported in the post-mortem report. Injury no.1 which was the cause of death was a stab wound 4.1 X 2 cm, wedge-shaped, obliquely placed on middle of front of left abdomen, 13 cm lateral to umbilicus and 101 cm above heel of left foot with one single acute and other rounded. On exploration, underlying skin s/c tissues, muscles, cleanly cut and perforating the small intestine, injury track running front to back with extensive blood extravasation and cutting underlying blood vessels. Injury was about 08 cm deep. Pankaj received one more injury that was incised wound 18 X 2.2 cm X muscle deep surrounded by radish bruise of size 14X5 cm outer aspect of left arm. This witness was not cross examined by the defence.
10. Dr. Umesh N, testified as PW9, examined the injured Puran on 26.06.2017 in RML Hospital. He deposed that on that day he was posted at RML hospital in Surgical Emergency. The injured Puran, a male aged 22 years came to emergency casualty at 2:48:28 AM having cut lacerated wound over left palm (hypothenar aspect). He medically examined the patient. He proved the OPD card Ex PW9/A and his clinical notes over it. He deposed that there was a complete transection of FDS and FDP tendons of zone 3. After repairing the tendons, the wound was closed. Dressing was done and dorsal pop splint was provided. Puran was advised to visit OPD for further follow-up as well as further assessment of repaired tendon's function. This doctor proved his note Ex PW9/B on the OPD card. In cross examination he stated that it took two hours to him to give surgical treatment to Puran. The patient was also splinted, and arms sling was also given to FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 10/42 him. He said that that the injury was appearing to have been inflicted by knife.
11. PW16 Dr. Gurdeep Singh has proved the injuries suffered by Vijay. He deposed that on 26.06.2017 he was posted as CMO casualty in SGMH hospital. Vijay was brought in the casualty with the history of physical assault. Dr. Nancy Lamba, junior resident examined Vijay and prepared his MLC ExPW16/A. Vijay was also examined by Dr. Nishant who gave the surgery opinion on this MLC. On 22.09.2017, this witness gave his final opinion on MLC that the injury of Vijay was grievous in nature. He also deposed that on the same day that is 26.06.2017, the injured Puran was also brought to the casualty of the hospital but later he was not found there. On 22.08.2017, Puran was brought in the casualty of the hospital for collection of his blood sample by police. This witness took his blood samples and gave it to the police in sealed condition. He also prepared his MLC in this regard ExPW16/C. In cross examination he admitted that he had not personally examined Vijay.
12. Dr. Nishant PW19, deposed that 26.06.2017 he was posted as senior resident surgery in casualty department of Sanjay Gandhi Memorial Hospital. At around 1.17 AM, injured Vijay, a male aged around 22 years was brought in casualty department. This witness examined him and gave his clinical notes on MLC ExPW16/A. Vijay was discharged from the hospital on 04.07.2017. During this period the injured was not able to follow his ordinary pursuits and even thereafter for 15/20 days considering the nature of the injury sustained by him, On, 19.09.2017, after going through the records and NCCT chest report, this witness opined from surgical side that the nature of injury was grievous as per his note in the aforesaid MLC. He also proved the NCCT chest report Mark PW19/A. In cross examination he stated that he had personally examined Vijay.
FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 11/42
13. The next important witness is the investigating officer Inspector K.B.Jha. According to his evidence, in the night of 25/26.06.2017, he was posted as inspector investigation and was SHO of the police station. An information was received vide DD No.5A regarding some fight at Jhuggis in Udyog Nagar. This call was assigned to ASI Dalbir Singh. ASI Dalbir and Ct. Jitender went to the spot where they found that three persons were injured in the incident and were in the hospital. Out of them Vijay and Puran were taken to Sanjay Gandhi Memorial Hospital by PCR van whereas the third injured Pankaj was taken to some unknown hospital by his father. At around 1.15 AM, an information was received vide DD No. 7A from Bhagwan Mahavir Hospital that the injured Pankaj was brought dead there. He immediately rushed to the hospital with HC Premvir. ASI Dalbir Singh was present there, who gave the MLC of Pankaj to him. He asked ASI Dalbir Singh to shift the dead body to the mortuary of Sanjay Gandhi Memorial Hospital. The he went to Sanjay Gandhi Memorial Hospital and collected the MLCs of Vijay and Puran. It was the mentioned by the doctor on the MLC of Puran that he was not present in the casualty department. From some sources he found that Puran has gone to some other hospital for treatment. Since Vijay was fit for a statement, he recorded the complaint ExPW1/A made by Vijay. He endorsed the complaint and sent it for the registration of FIR through HC Prem Vir at 3 AM. ASI Dalbeer gave him two parcels sealed with the seal of SGM Mortuary containing the clothes of Vijay, with sample seal. He seized the samples vide seizure memo ExPW17/A. Then he and ASI Dalbeer went to the spot situated near Shiv Mandir, in a street opposite factory No. H-37, Udyog Nagar. HC Mahender, Constable Jitender, SI Baljeet and other police officials were present there. The Mobile Crime Team was also present there. One plastic bag was lying on the spot with blood on it. He cut one part of the bag where it was soddened with blood and FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 12/42 the other part where it was clean. He gave both the pieces the serial numbers 1 and 1A and seized both, vide seizure memo ExPW8/A. He saw that the blood spots were also there on the wall of a Jhuggi in front of Shiv Mandir. Two different pieces, one of blood-stained plaster and other of plain plaster were taken in separate plastic containers. He gave them serial number 2 and 2A and seized them vide seizure memo ExPW8/B. One more Jhuggi in front of that Jhuggi has blood marks on it. He took one blood-stained brick and other plain brick in separate plastic containers. He gave them serial number 3 and 3A and seized them vide seizure memo ExPW8/C. He then went to Jhuggi No.104 which was of the accused Raj Kumar and saw some bloodstains on cement roof sheet. The blood sample from that bloodstain was taken with the help of cotton gauze and kept inside a plastic container. It was sealed with the seal of BS and the exhibit was given serial number 4. It was seized by him vide seizure memo ExPW8/D. From the cement roof of the Jhuggi of accused, one part of bloodstained cement roof and one plain part was broken and kept inside a plastic container. The exhibits were given serial number 4A and 4B. In the similar manner, he seized them vide seizure memo ExPW8/E. At the spot he found some pieces of paper with blood spots. He gave them serial number 5 and similarly seized them vide seizure memo ExPW8/F. On the spot inspection, he found a cover of a knife of military colour . He seized it in a similar fashion vide seizure memo ExPW8/G. He also found two slippers on the spot and seized them vide seizure memo ExPW8/H. He also found a white bloodstained cloth on the spot and seized it vide seizure memo ExPW8/I. The accused had one more Jhuggi No.392. He went there and, on the floor, he found bloodstains. He took the bloodstained earth control and plain earth control and seized them vide seizure memo ExPW8/J. He gave them serial number 9 and 9A. He then went on to record the statements of the crime team in-charge, photographer FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 13/42 and fingerprint proficient and relieved them from the spot. He found one eyewitness Puran injured during the incident who came on the spot after his medical treatment. He inquired from him about the incident and on his instance prepared a rough site plan of the place of occurrence ExPW21/B. He recorded the statement of Puran. He did not find any other eyewitness on the spot. HC Prem Vir came back on the spot with the copy of FIR. He then went to the police station and deposited the exhibits there. On the same day he went to the mortuary and completed the formalities for post-mortem of the deceased, but the post-mortem could not be done on the day. He made search of the accused but in vain. On the next day that is 27.06.2017, post- mortem of the deceased was done and after it the dead body was handed over to the relatives of the deceased. The exhibits given by doctor were collected by him. On 30.06.2017, accused Rajkumar surrendered before the court. He moved an application for the interrogation of the accused which was allowed. After interrogation, he arrested the accused and recorded his confessional statement. He moved an application for police custody remand of the accused which was allowed for two days. The accused took the investigating officer and his team to the Jhuggi No. 790 of his sister in pursuant to his second confessional statement ExPW10/C. He asked some public persons to join the investigation on which one Jagadish agreed. Accused took them to the first floor of the said Jhuggi. There was one room on the first floor. There was a wooden plank fixed at the left side of the wall from entrance of the room. There was one plastic sheet on that wooden plank. The accused told that the knife used in that incident was hidden under that sheet. The knife was recovered from that wooden plank lying under that plastic sheet. The knife has blood stains. He prepared the sketch of knife ExPW11/A with its measurements. The total length of knife was 28.5 cm, and its blade was 16 cm long. He seized the knife vide seizure memo FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 14/42 ExPW11/B. Then accused lead him to LNJP Hospital. There were some bushes in front of the hospital. Accused told that the cloths which he was wearing at the time of incident were hidden by him in those bushes. The accused then took his cloths out of the bushes which have bloodstains. He seized his bloodstained clothes vide seizure memo ExPW10/D. On 22.08.2017, the blood sample of injured Puran was taken at SGM hospital which was seized by him vide seizure memo ExPW6/A. On 04.09.2017, he obtained the blood sample of injured Vijay through SGM Hospital and seized it vide seizure memo ExPW6/B. On 23.09.2017, he went to SGM hospital to Dr. Anurag Thapar for subsequent opinion regarding the weapon of offence. Dr. Anurag Thapar gave his subsequent opinion ExPW18/C in this regard. On 25.09.2017, the exhibits were sent to FSL, Rohini for expert opinion. He obtained the opinion regarding the injuries of Vijay and Puran. He recorded the statements of all the witnesses connected with the investigation of this case under section 161 Cr.PC. After completing the investigation, he filed the chargesheet in the court. He identified the accused in the court. He also identified during his evidence in court, the exhibits collected by him during investigation. He proved the plastic bag pieces Ex.P1 and Ex.P2, cement piece Ex.P3, brick pieces Ex.P4 and Ex.P5, blood gauze Ex.P6, pieces from cemented roof Ex.P7 and Ex.P8, papers collected during investigation Ex.P9, bloodstained knife cover Ex.P10, bloodstained slippers Ex.P11, bloodstained cloth piece Ex.P12, bloodstained earth material Ex.P13 and Ex.P14, the knife used in the assault Ex.P15, bloodstained clothes of the accused Ex.P16, bloodstained clothes of Vijay Ex.P17 and Ex.P18, the FSL result regarding viscera examination of the deceased Ex.PW21/I (the genuineness of this document has not been disputed by the defence). This is the overall evidence of the investigation officer. There is nothing in his cross-examination to show that he has not FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 15/42 done the investigation properly nor is there anything in the cross- examination of this witness to favour the accused. In cross examination he testified that he received the information about the death of Pankaj at around 1.15 AM after the second DD was made regarding his death. When he reached in the hospital, he also found the relatives of the deceased there. He recorded the statement of Vijay in the hospital. He did not record the statements of the family members of Vijay though some of them were present there. When he went back to the spot, he saw that five/seven persons of the locality were present there. He asked them to join the investigation, but no one was ready on the pretext that he had not witnessed the incident. He admitted that the Jhuggi cluster where the incident took place, was a thickly populated area. He did not record the statements of any neighbours residing adjacent to Jhuggi no. 104 regarding its ownership. He could not tell the distance between Jhuggi no. 392 and 104 though he said that it was hardly at one minute walking distance from each other. According to his investigation, Jhuggi no. 392 was owned by the accused but in that Jhuggi his mother used to reside. He did not find any document to establish the ownership of Jhuggi no. 392 to show that it was occupied by the mother of the accused. He did not prepare the site plan of the place from where the knife was recovered. There was no public witness to the recovery/seizure of the cover of the knife. He had not verified the criminal background of the injured Puran or Vijay and the deceased Pankaj. The cover of the knife could not be matched to the knife because the knife was recovered on 01.07.2017 whereas the cover was already recovered on 26.06.2017 and was sealed. He could not say with surety that the knife cover recovered in the case was that of the recovered knife. He admitted that one MLC with respect to Sangeeta was prepared in SGM Hospital which he has not placed on record. He denied the suggestion that her MLC was not placed to help the accused.
FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 16/42
14. PW20, Suresh Kumar Singla proved his serological and DNA report Ex.PW20/A. According to his testimony, blood was detected on exhibits 1,1A, 2, 3, 4A, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13A, 14B, 15, 16, and 17. Blood could not be detected on Ex.2A, 3A, 4B, 9A and 13B. According to DNA report alleles from the source of Ex.1A (plastic bag piece), Ex.3 (piece of brick), Ex.5(gauze of cloth piece) from the spot, Ex.7(pair of slippers) from the spot were found accounted in the alleles from the source of Ex.16 that is blood sample of injured Puran. The DNA profile could not be generated from the source of Ex.10 that is shirt of injured Vijay, Ex.12 that is gauze of piece of shirt of Pankaj and Ex.17 that is blood sample of injured Vijay. He proved his detailed report in this regard which is Ex.PW20/A. The defence did not cross examine this witness.
15. The other witnesses are formal in nature. I restrict the reference of their testimonies in detail for the sake of brevity and expediency however a brief account of their evidence is stated to cover the entire evidence of the case.
16. The accused under section 294 Cr.PC admitted the copy of FIR(Ex.PX1) and certificate under section 65B of the Indian Evidence Act (Ex.PX2) in support of it, DD numbers 5A,6A,7A,8A (Ex.PX3, Ex.PX4, Ex.PX5, Ex.PX6), scaled site plan of the place of incident(Ex.PX7), Crime Team Report (Ex.PX8), photographs of the spot and its CD(Ex.PX9) and PCR Form (Ex.PX10). Therefore, the witnesses cited by the prosecution to prove these documents have been dispensed with.
17. The remaining witnesses are Constable Satpal(prosecution witness-3), Constable Pawan Kumar (prosecution witness-4), Constable Ravinder (prosecution witness-5), Constable Shrikant (prosecution witness-6), Constable Jitender (prosecution witness-7), Sub-Inspector Baljeet (prosecution witness-8), Head Constable Mahender (prosecution witness-
FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 17/42
10), Head Constable Prem Vir Singh (prosecution witness 12), Head Constable Tirender (prosecution witness-13), Sub-Inspector Bhawani Shankar (prosecution witness-15), Assistant Sub-Inspector Dalbir Singh (prosecution witness-17). All these police witnesses were connected with the investigation of the case and have corroborated the evidence of investigation officer discussed in detail above.
18. Lastly, Jagdish Grover (prosecution witness 11), is a public witness who consented to join the investigation of this case. He had a courier company Fedex Courier Agency in Peera Garhi. According to his testimony, on 01/07/2017 he was standing outside his shop. He saw that police were present there with accused Raj Kumar. Investigation Officer K.B. Jha told him that accused Raj Kumar has confessed that he can get recovered the knife used in the crime and the investigation officer asked him to join the recovery proceedings. He agreed. He identified the accused during his evidence in court and testified that the accused took them to Jhuggi No. 790 in a room at the first floor. He told that the Jhuggi was of his brother-in-law. There was a wooden plank on the wall with a white-coloured plastic sheet spread out on it. The accused took out a blood- stained knife hidden beneath that plastic sheet and handed it over to the investigating officer. This witness further proved the proceedings of its seizure and also identified that knife (exhibit P-15) in the court. Therefore, this witness has corroborated the recovery of knife at the instance of the accused. He has been cross examined in detail. In cross-examination, he stated that that he was in possession of his shop since his birth. His father used to run a hotel in that shop and for last three years he was doing the business of courier services. He admitted that the shop was in an unauthorised Jhuggi. He knew most of the people of the locality. Puran also live in that locality. He has 4/5 commercial vehicles for courier business which were driven by his employees. It is correct that Puran FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 18/42 was working as a helper to the driver of one of his commercial vehicles. He did not remember whether Puran came to the shop on 25.06.2017 or 26.06.2017 as he did not go to his shop because he was ill. On 27.06.2017, he came to his shop. Puran also came on the shop. He had a bandage on his palm. Puran told him that the accused Raj Kumar inflicted that injury to him. Puran was working with him when he deposed in the court. He said that a sketch of the knife was made by the investigating officer in his presence. Before recovery, the investigating officer had not informed him the place from where the recovery of knife could be affected. He stated that there they reached in the Jhuggi of the accused at around 12 noon. No other public person went inside the Jhuggi at the time of recovery proceedings. Father of accused Raj Kumar was sitting opposite to Jhuggi number 790 in his own Jhuggi. He did not remember whether the investigation officer prepared the site plan of the place of recovery of the knife. The recovery proceedings took around one and half hours to complete. He did not remember whether the investigating officer asked the father of the accused to join the recovery proceedings. He stated that the medical condition of the father of the accused was not good and he could not walk properly due to old age. He stated that his statement was recorded at the place of recovery of knife. He stated that no quarrel had ever taken place between him and the accused at any point of time. He stated that the accused on many occasions quarreled with other persons and he got the matter compromised. He denied that the knife was planted upon the accused. He denied that he was under obligation to depose falsely in favour of police because he was doing illegal business in an unauthorised manner. He denied the suggestion that he has not seen the accused quarrelling with anyone or that he did not get the matter compromised between accused and those persons.
19. This is the overall evidence led by the prosecution in this case.
FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 19/42
20. The accused Raj Kumar was examined under section 313 Cr. PC and the incriminating circumstances appearing in evidence against him were put to him. Raj Kumar either answered to the circumstances that they were wrong or feigned ignorance to them. He however admitted that he did surrender before the court because he and his family members were being harassed by the police at the time. Except that he has not admitted even a single evidence of the prosecution against him. He stated that the witnesses Vijay and Puran falsely testified against him and this false case was registered against him at their behest. After registration of this case, he came to know that after consuming liquor Vijay, Puran and Pankaj quarreled with each other. They caused nuisance in that locality and thrown stones. In aggression and in the influence of intoxication all three of them stabbed each other. They had an old enmity with his family due to which his family has lodged a complaint against them and also filed a complaint in the court. He finally alleged that he is innocent and falsely implicated in this case. He did not lead defence evidence to prove anything contrary to any claim of the prosecution.
21. I have heard the final arguments advanced by learned Public Prosecutor Sh. Santosh Kumar and learned defence counsel Anil Soni. Learned Public Prosecutor has argued that the entire case is based on the testimonies of eyewitnesses who themselves are injured in this case. He further stated that there is nothing in the cross-examination of the eyewitnesses and other prosecution witnesses which could be said to be sufficient to create a doubt in the story of the prosecution. Vijay and Puran have given a true and reliable account of how the offence was committed in this case and there is nothing to disbelieve their unflinching and cogent testimony on this issue. He stated that the evidence given by the prosecution witnesses are so meticulously flawless that it points to only one conclusion that the prosecution is able to prove its case beyond reasonable doubt which is the FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 20/42 required standard for it. He stated that the testimony of the complainant and other public witness were consistent throughout. He has read the evidence and the important documents to connect the role of the accused with the crime alleged.
22. On the other hand defence counsel argued that there are contradictions and improvements in the testimonies of the witnesses, the alleged recoveries being planted. It has also been argued that no independent public witness has been examined and that the culpable intention of the accused has not been established as it is a case of solitary blow. I will explicate on these arguments in detail later.
23.- The facts, if summarised in brief are that in the night of 25/26.06.2017 at around 12.30AM in, there was fight between Vijay and the accused Raj Kumar in which he stabbed Vijay. When Puran who is the brother of Vijay and Pankaj came to his rescue, they were also stabbed by the accused. Pankaj died in that incident. During investigation the knife used by the accused in the assault was recovered at his disclosure of the place, where he hid it. The two injured Vijay and Puran, who survived, became the eye witness of this case.
24. The case of the prosecution is therefore based on the eyewitnesses' accounts and not on circumstantial evidence. A witness that saw the happening of the incident being investigated by the court is an eyewitness. Reliable evidence of eyewitnesses cannot be disregarded in the absence of strong reasons. Conviction can be based upon the testimony of sole eyewitness if the same is found wholly reliable. In case if his testimony is not found to be wholly reliable, the court may insist upon some independent corroboration.
25. The prosecution has two eyewitnesses to this matter. They are its star witnesses. Eyewitnesses play an important role in the criminal justice system.
FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 21/42 The quality of evidence of an eyewitness depends on many factors prominent among them are his view in which the crime is committed, his confidence with respect to the accuracy of the description of the crime and identification of the accused and his description, the amount of attention the witness paid to the crime during its occurrence, the probability of the witness being present at the place of incident, the accuracy and probability of what he is defining etc. The law related to the appreciation of evidence of eyewitnesses is completely settled that generally the testimony of eyewitness of the incident is considered credible unless and until it is specifically shown or proved to have tainted for any reason on which it is assailed. Generally, the courts tend to believe what the eyewitnesses depose in the court and it is only when there exists grave and material discrepancies and contradictions in their statements which compels the court to think and doubt that whether the eyewitness is giving a truthful account, it can be come in the domain of suspicion. When the tenacity and doggedness of the eyewitness is suspicious, when the truthfulness of the testimony of the eyewitness is shrouded in grave clouds of suspicion and falsity, the court may disbelieve that witness or may look for such corroboration of his evidence which are capable of removing the blemish from his evidence. However, the contradictions and omissions which are not material regards being to the facts of the case those can be overlooked. Way back in 1957, in Vadivelu Thevar v. The State of Madras, A.I.R. (1957) S.C. 614, Hon'ble Supreme Court has categorised the witnesses in three categories. It was held that as a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 22/42 witness, or of a witness whose evidence is that of an accomplice or of an analogous character. Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. It is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:(1) Wholly reliable, (2) Wholly unreliable, (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
26. In Rammi alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 256, Hon'ble Supreme Court observed:
"When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 23/42 adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny".
27. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court explained the legal position as under:
"The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
28. Further, in case of State v. Saravanan AIR 2009 SC 152, it was held that the court can overlook "minor discrepancies on trivial matters" which do not affect "the core of the prosecution case". In State of U.P. v. Krishna Master AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that "it is the duty of the court to separate falsehood from the truth, in sifting the evidence". At the same time, the eye-witness testimony must be credible and reliable. It should not be contradicted by other eyewitnesses or by the medical and forensic evidence, if any.
FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 24/42
29. In Narayan Chetanram Chaudhary & Anr. vs. State of Maharashtra reported in AIR 2000 SC 3352, Hon'ble Supreme Court reiterated the law laid down in its previous judgements and observed as under: -
"There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye- witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence...
The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not failing within a set pattern is unproductive and a pedantic exercise."
30. It is not out of place to mention here that both the eyewitnesses were also injured in the incident and they also fall in the category of injured witnesses. The law regarding injured witness is that the evidence of an injured witness must be given due weightage. The statement of injured is generally considered to be very reliable and it is unlikely that she or he will FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 25/42 spare the actual assailant in order to falsely implicate someone else. The testimony of an injured witness / victim of offence has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. The evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
31. In Abdul Sayed vs State of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court laid down that: -
"26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
32. In State of UP vs Naresh (2011) 4SCC 324 it was observed by Hon'ble Supreme Court that: -
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted.
FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 26/42 His statement is generally considered to be very reliable, and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence, and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein".
33. The testimonies of the eyewitnesses in this case now have to be judged on the anvil of the law discussed above.
34. Now coming to appreciation of the facts and evidence. The most important evidence in this case is of complainant PW1 Vijay and his brother Puran PW2. Their evidence is reproduced above. The complainant Vijay has given the account of the incident in his initial complaint ExPW1/A and also in Court. He is the eyewitness of this case and also an injured witness. Eyewitnesses play an important role in the criminal justice system. The quality of evidence of an eyewitness depends on many factors prominent among them are his view in which the crime is committed, his confidence with respect to the accuracy of the description of the crime and identification of the accused and his description, the amount of attention the witness paid to the crime during its occurrence, the probability of the witness being present at the place of incident, FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 27/42 the accuracy and probability of what he is defining etc. The testimony of witness Vijay in this case inspires confidence. He is a wholly reliable witness. His evidence deserves to be given due weightage due to its inherent consistency at different stages. He was also injured in the incident and the statement of an injured is generally considered to be very reliable and it is unlikely that he will spare the actual assailant in order to falsely implicate someone else. PW1 Vijay was dangerously injured in the incident and therefore his testimony has its own relevancy and efficacy. Why would he, if he has witnessed the incident, would not like the actual culprit punished or want to let the actual offender go unpunished for the commission of the offence merely to implicate the accused on an improbable and unproved defence of enmity. The evidence of Vijay has to be relied upon unless there are grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein which are absent in this case as will be discussed further. The complainant has given the account of incident immediately in his complaint and there was no delay in the registration of the case. Vijay sticked to his allegations throughout the case. He has named the accused as the murderer of Pankaj. They know each other very well as according to him, they live in same locality. Therefore, the identification of the accused by this witness or in fact by other eyewitness Puran is not an issue. He has categorically stated in his evidence in court that he was strolling outside his house when he was stabbed by the accused. Later accused stabbed Pankaj and his brother as well. The motive for the crime has not come very clearly in evidence though from the suggestion of the accused in the cross examination of PW1 it has come that deceased and injured were not on good terms with each other. Though in cases of direct evidence motive is generally immaterial. PW1 has been duly cross-examined on behalf of accused. There is an inherent consistency in the evidence of the complainant. He has given a consistent account of the incident in his complaint Ex.PW1/A, in his evidence as PW-1 and FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 28/42 during his cross-examination. There is nothing in his cross-examination to impeach his credit or to suggest that he is not a reliable witness or has not witnessed the incident or has not spoken the truth. There is nothing in his cross- examination to impeach his evidence in the court or to discredit his evidence. The defence has not produced any proof/material that what can be the reason for complainant for false implication of accused except a bald assertion of enmity accused and the deceased, in his statement under section 313 CrPC. PW1 has clearly deposed about the assault and the manner in which it was done by the accused.
35. PW 2 Puran has further corroborated the oral evidence of complainant Ravi. He is also an eyewitness and himself injured in that incident. His evidence bespoke with clarity that what happened on that day and what brought death to Pankaj. There is nothing in the cross-examination of this witnesses also to show in any manner that whatever he spoke in court has even an atom of falsehood. His injuries like that of Vijay vouches for his presence on the spot.
36. The testimonies of the complainant Vijay and Puran are the backbone of the case of the prosecution. Their evidences inspire confidence and there is nothing in them to create any doubt or suspicion on their probative value. One important aspect of the cross-examination of both witnesses is that the defence did not have much opportunity to contradict or controvert their evidence with any previous statements, showing an inherent strength and consistency in what they said. In criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Consistency is the keyword. There must be a string that should join the evidence of all witnesses and thereby satisfying the test of consistency in evidence amongst all witnesses. And it happened here.
FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 29/42
37. The evidence of the complainant is further corroborated by medical evidences. Deceased Pankaj was taken to Bhagwan Mahavir Hospital, Pitam Pura, Delhi where he was examined by PW 14 Dr. Soma Roy Sr.Medical Officer. According to her evidence Pankaj was brought dead in the hospital. Thereafter his autopsy was conducted by PW18 Dr. Anurag. According to post mortem report the cause of death was hemorrhagic shock due to abdominal injury and injury no.1 mentioned in the post-mortem report was sufficient to cause death in the ordinary course of nature which was caused by a sharp single edged weapon. Deceased Pankaj sustained two external injuries. Injury no.1 which was the cause of death was a stab wound 4.1 X 2 cm, wedge-shaped, obliquely placed on middle of front of left abdomen, 13 cm lateral to umbilicus and 101 cm above heel of left foot with one single acute and other rounded. On exploration, underlying skin s/c tissues, muscles, cleanly cut and perforating the small intestine, injury track running front to back with extensive blood extravasation and cutting underlying blood vessels. Injury was about 08 cm deep. Pankaj received one more injury that was incised wound 18 X 2.2 cm X muscle deep surrounded by radish bruise of size 14X5 cm outer aspect of left arm. This doctor also saw the knife which was alleged to have been used in this assault and opined that the injury no.1 was possible with knife shown to him. Therefore, the medical evidence related to the injury of Pankaj is commensurate with the oral evidence of the aforesaid two eyewitnesses. There is no mismatch or variations in the oral evidence and the medical evidence.
38. The witness Vijay also sustained a stab wound in that incident which he alleged was inflicted by the accused. As per the medical evidence with respect to the injury of Vijay, PW16 Dr. Gurdeep Singh has proved that he was brought in the casualty with the history of physical assault. According to MLC of Vijay Ex.PW16/A, he had an incised wound over chest 6x1 cm FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 30/42 which was opined as grievous in nature. This again is commensurate with his oral evidence that he was stabbed in the chest by the accused. There is no mismatch or variations in the oral evidence and the medical evidence.
39. This discussion proves that the evidences produced by the prosecution indicates that the accused has committed the crime with which he is charged.
40. Now coming to the defences which the accused has raised in his support and to see whether these in any way either absolves him or diminishes his crime. It has also to be seen whether the defences raised, makes the case of prosecution weak or short of achieving the standard of proof beyond reasonable doubt, an established legal principle in criminal cases.
41. The first is the reliance on certain facts which according to defence are the omissions and contradictions/variations in the testimony of witnesses. It has been stressed that in his examination-in-chief the witness Vijay said that accused demanded money from him for liquor, whereas in his complaint Ex.PW1/A no such demand was there. It was further submitted that witness Vijay did not even remember the month of the incident despite the fact that it took place just four months back. In his examination-in-chief he has stated that Pankaj was taken to the hospital by his friends but he has not said so in his complaint Ex.PW1/A. Apart from these two alleged contradictions there are no further in the evidence of witnesses of prosecution. Further there are no confrontations in the cross- examination of PW2 Puran which goes on to show the tenacity and doggedness of his evidence. Otherwise also the contradictions and variations have to be major to disbelieve the testimony of a witness. Which are not in this case.
42. In Rammi alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 256, Hon'ble Supreme Court observed :
FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 31/42 "When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny".
43. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court explained the legal position as under:
"The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
44. Further, as explained in State v. Saravanan AIR 2009 SC 152, the Court can overlook "minor discrepancies on trivial matters" which do not affect "the core of the prosecution case". In State of U.P. v. Krishna Master AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that "it is the duty of the Court to FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 32/42 separate falsehood from the truth, in sifting the evidence". At the same time, the eye-witness testimony must be credible and reliable. It should not be contradicted by other eye-witnesses or by the medical and forensic evidence, if any. Therefore, the defence argument relating to contradictory evidences of prosecution witnesses is meritless and rejected.
45. Next it was argued that the complainant Vijay and Puran are not reliable witnesses because they were inimical to the accused. Accused has disclosed about this enmity in his examination under section 313 Cr.P.C. It is true that the accused has so stated but it is also a fact that apart from saying it, he has not led any further evidence to prove this fact. The witness Puran, in cross-examination has stated that he had cordial relations with the accused Raj Kumar. The prosecution has led witnesses to prove the facts which it alleged whereas the accused did not even bother to examine himself and offered him to cross-examination and to prove his defence. He stated that his family members have filed a complaint in the court but no document has been proved in evidence in this regard. Enmity is a double-edged weapon, if it can be a ground for false implication it can be an equally vigorous ground of dispute between two persons. In Anil Rai v. the State of Bihar, (2001) 7 SCC 318, Hon'ble Supreme Court acknowledged that the existence of animosity give rise to the possibility that witnesses might exaggerate the role of the accused or try to rope in more persons as accused persons however such a possibility is required to be ascertained on the facts of each case. It was held that in the case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Bitter animosity held to be a double-edged weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such a FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 33/42 possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Now in the present case, the animosity has been only asserted by the defence but not proved whereas as discussed earlier the evidence of prosecution against the accused is found reliable.
46. It has also been argued that a lot of public persons gathered there after the incident according to the testimony of PW2 Puran. According to the evidence of investigation officer, the place of incident was thickly populated despite that no independent witnesses from the locality or among the onlookers have been made witnesses. Though it is a very convenient argument for defence but is not very convincing. Those persons gathered only after the incident and were mere onlookers. They may not be aware of the facts and witnesses who were acquainted with the facts are nevertheless made witnesses in this case. I only need to reproduce the observations of Hon'ble Supreme Court in case titled as Appabhai v. State of Gujarat (1988 SC Cr R 559 9 : AIR 1988 SC 696) to repel this argument which are as follows -
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 34/42 apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
47. Lastly it has been argued that the knife shown to have been recovered was planted upon the accused as both PW1 and PW2 have not said in their evidence that it was the same knife used in the assault.
48. It is true that the knife which prosecution says had been used to assault, has not been identified by both the eyewitnesses and the only evidence regarding it is the confessional statement of accused. But that will not give any advantage to the accused because of otherwise incredible evidence of these witnesses corroborated by medical evidence. Even in cases where the weapon of offence is not recovered, an offender can be convicted if other evidences prove his role in the crime. If this is made a ground to release the accused, the first thing every accused will do is to destroy the weapon of offence. Thus, when there is ample unimpeachable ocular evidence and the same has been corroborated by medical evidence, non-recovery of weapon of offence does not affect the case of the prosecution. Therefore, there is no hard and fast rule regarding this and it all depends on the quality of other evidence lead in the case. Reliance is placed on an excerpt of the judgment of Hon'ble Supreme Court of India in Prabhash Kumar Singh Vs. State of Bihar (now Jharkhand) [Criminal Appeal No. 935 of 2011] dated 12/09/2019 wherein the Hon'ble Court observed - "In such circumstances, FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 35/42 we do not find any reason to interfere with the judgment of the High Court. As there is clear eyewitness account of the incident and none of the two eyewitnesses could be shaken during cross examination and they had stuck to the recollection of the facts relating to the incident, the mere fact that the weapon of assault or the bullet was not recovered cannot demolish the prosecution case."
49. Therefore, all the facts/circumstances and the evidence led to prove the same, indicates towards only one conclusion and that is the guilt of the accused. To finally conclude, there is no doubt that in the intervening night of 25/06/2017 and 26/06/2017 at around 12.30 AM, the accused Raj Kumar caused the death of Pankaj and stabbed Vijay in his chest. The accused is charged under section 302 IPC for causing death and under section 307 IPC for stabbing Vijay.
50. Section 302 IPC punishes the offence of murder. Murder is defined under section 300 of IPC in the following words :-
Section 300 in The Indian Penal Code
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or (Secondly)--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or (Thirdly)--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 36/42 inflicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly)--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
51. It has been argued on behalf of the prosecution that this case will fall under clause (1) and (3) of section 300 meaning thereby the death of Pankaj amounts to murder because the act by which the death was caused, was done with the intention of causing death and also with the intention of causing bodily injury, which is sufficient in the ordinary course of nature to cause death. On the contrary, it has been also argued on behalf of defence that even if the prosecution case is accepted, an offence of murder is not made out as the accused is alleged to have assaulted them with a single knife blow which does not show his intention to cause the death.
52. The facts presented by prosecution shows that it is clear that this case will fall not only in the first clause but also in third clause of Section 300 IPC. The nature of injuries shown in the post mortem report clearly indicates a culpable intention to that effect. Whether the death was actuated by the intention to cause death is a subjective element and has to be deduced from the objective facts, circumstances and behaviour of the accused. In this clause, all those cases will be covered where the direct intention of the accused is to cause the death of a person. Inference of such intention can be drawn from the manner in which the death is caused, the weapon used, the nature of injury given, the seat of injury on the human body, the motive and FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 37/42 any other relevant circumstance connected with the death of a person. In the present case, from the nature of injury no.1 to Pankaj and its seat and the manner in which it was inflicted, sets out the clear intention of the accused to cause the death of Pankaj. The blow was so fatal to him that he collapsed on the spot and even could not reach the hospital alive. The argument of the defence is that since the death was caused by a single blow, at most a case under section 304 IPC can be made out in this case. I could not agree with this contention. If as a result of solitary blow by a weapon the victim is done to death, the question as to whether the offence comes under section 302 or section 304 admits of no straight answer. Shortly stated if the facts proved by the prosecution brings the case within the ambit of any of the four clauses of the definition of murder contained in section 300 of the Indian Penal Code, the offence would be murder. If the case cannot be encompassed by any of the aforesaid four clauses, the offence would be culpable homicide not amounting to murder. It follows therefore that in every case of a single blow, stab or cut, the offence would not by the mere fact that it is a single blow reduce itself to section 304 IPC. In Jagrup Singh Vs State of Haryana AIR 1981 SC1552, Hon'ble Supreme Court held that there is no justification for the assertion that giving of a solitary blow on a vital part of the body resulting in the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under s. 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron 'rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause firstly or clause thirdly. The nature of intention must be gathered from the kind of FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 38/42 weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.
53. The third clause of section 300 IPC states that every culpable homicide is murder, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
54. To see whether the case of the accused will also fall under section 302 clause three or not, I am relying upon the judgment of Hon'ble Supreme Court of India in Virsa Singh vs State 1958 AIR 465. In this case, Hon'ble Court has set out the four elements test, which the prosecution must prove to bring its case under this section. The following passage in the judgment which has become locus classicus on this issue. It's as -
"To put it shortly, the prosecution must prove the following facts before it can bring a case under s.300, 3rdly" ; First, it must establish, quite objectively, that a bodily injury is present ;Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 39/42 elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a license to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
55. Now in the present case, it is clear that the bodily injuries were present on deceased Pankaj and these were two in number. The nature of injuries is described in the post- mortem report(mentioned above). I have already stated above that the facts and circumstances of the case shows that the accused intended to inflict the same injuries which were in fact there on the deceased Pankaj. It is no case of the defence that it was accidental or unintentional, or that some other kind of injury was intended. Therefore, first three requirements according to this judgement are fulfilled. Lastly, it has to be proved by the prosecution that the injuries inflicted by the accused were FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 40/42 sufficient to cause the death in the ordinary course of nature. The doctor, who had conducted the post- mortem has stated this fact in clear terms in the post- mortem report that the injury no.1 caused to the deceased was sufficient in the ordinary course of nature to cause the death. Whether an injury is sufficient to cause death in the ordinary course of nature depends upon the probability of death which, if it is very great than the requirement of third clause is satisfied and the fact that a particular individual may by the fortunate accident of his having secured specially skilled treatment or being in possession of particularly strong constitution, have survived an injury which would prove fatal to the majority of persons subjected to it is not enough to prove that an injury is not sufficient in the ordinary course of nature to cause death. It cannot be said that an injury sufficient in ordinary course of nature to cause death is an injury which inevitably and in all circumstances must cause death. The best evidence to prove the nature of injury and whether it is sufficient to cause death is the medical evidence of a competent doctor. And it has been so given in this case that injury number one is sufficient to cause death in the ordinary course of nature. Though it was argued by the defence that FSL report Ex.PW21/I has shown that the deceased was inebriated at that time but his being in that state does not alter the case as facts suggests that it was a one-sided assault.
56. Regarding the charge under section 307 IPC for stabbing Vijay, his injury has been opined as grievous. The injury was an incised wound in chest 6cm X 1cm with sharp edged weapon and had the full potential to endanger his life. To convict under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. It is not necessary that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 41/42 done with the intention or knowledge and under circumstances mentioned in Section 307 IPC. It is sufficient by law, if there is present an intent coupled with some overt act in execution thereof. The nature of weapon used, the intention expressed by the accused at the time of the act, the motive for commission of offence, the nature and the size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the assault are important factors to determine if an accused can be convicted of an attempt murder. In this case if the act committed by the accused would have caused death of the complainant, he would have been guilty of murder because a culpable homicide is a murder if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. The intention of the accused was clearly to cause such injury making him liable to be convicted under section 307 IPC.
57. Therefore, in the facts and circumstances of the case, I find that the prosecution is able to prove its case beyond reasonable doubts and the accused do not have any plausible defence to justify his act.
58. On the basis of aforesaid discussion, the accused Raj Kumar @Ballu is convicted for offence under section 302 and 307 Indian Penal Code as charged.
59. List the matter for arguments on sentence. Digitally signed by SAMAR SAMAR VISHAL VISHAL Date:
2021.03.31 Pronounced in the open 12:23:24 +0530 Court on 31.03.2021 (Samar Vishal) Additional Sessions Judge -08 West, Tis Hazari Courts Delhi FIR No. 294/2017, State vs Raj Kumar @ Ballu u/s 302/307 IPC Police Station : Mianwali Nagar Page No. 42/42