Delhi District Court
State vs (1) Anshu Tyagi on 8 January, 2019
IN THE COURT OF SH. SANJAY BANSAL:
SPECIAL JUDGE (NDPS) / ASJ / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 44380/2015
CNR No. DLNE01-000053-2011
STATE Versus (1) ANSHU TYAGI
S/o Vinod Tyagi
R/o Village Dabana, P.O. Niwarhi,
Dist. Ghaziabad, UP.
(2) LUCKY TYAGI
S/o Sh. Ashok Tyagi
R/o Village Sikerha, P.O. Simbhaoli,
Dist. Ghaziabad, UP.
(3) SOMNATH GUPTA
S/o Amarnath Gupta
R/o Janta Hotel, Loni Road,
Shahdara, Delhi.
FIR No. : 232/2011
PS. : Shahdara
U/s. : 302/323/341/34 IPC
Chargesheet Filed On : 27.10.2011
Date Of Allocation : 30.11.2011
Judgment Reserved On : 08.01.2019
Judgment Announced On : 08.01.2019
JUDGMENT:
1. In the night of 29.07.2011, a retirement party was held in respect of father of one Naveen. The said party was attended to by one Amit, Tarun and Ravinder amongst others. After the party was over, Naveen alongwith these three friends went to a beetle shop to buy cigarettes. At the said shop, at about 11:45 pm - 12:00 midnight, some quarrel took place between them and two SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 1 of 38 motorcycle riders which turned ugly and into brutal assault. Few more persons joined those two riders. In the assault, stone blows were given to Tarun on his head due to which he received injuries and ultimately died. Prosecution alleges that it was accused Anshu Tyagi who had given the stone blows. It further alleges that the other two accused namely Lucky Tyagi and Somnath Gupta had also assisted him and caused injuries to Amit and Ravinder.
2. FIR was registered upon statement of injured Amit. After registration of FIR u/s 302/323/341/34 IPC, matter was taken up for investigation.
3. Prosecution asserts that the three accused persons were apprehended at the spot. During investigation, postmortem was got conducted. Spot of crime was got inspected. One stone was allegedly recovered from hand of accused Anshu Tyagi. Similarly, one brick piece was recovered from possession of accused Lucky Tyagi. One cane was recovered from accused Somnath Gupta. All these weapons were having blood stains. Similarly, clothes of accused Anshu Tyagi and Lucky Tyagi were also having blood stains and were seized. It was found that all the three accused persons were working in Janta Hotel. It was also suspected that owner of the said hotel namely Mukesh Tyagi was also involved in the incident and was with them at the time of incident. CCTV installed at Janta Hotel was seized. Chargesheet was filed against three accused persons u/s 302/323/341/34 IPC awaiting result of FSL examination qua CCTV footage.
4. Supplementary chargesheet was filed alongwith FSL examination. SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 2 of 38 However, role of Mukesh Tyagi could not be ascertained and his name was kept in column no. 12.
5. After compliance of section 207 CrPC, learned MM committed the case to Court of Sessions as offence u/s 302/34 IPC was exclusively triable by it.
6. Vide order dated 01.05.2012, my learned Predecessor framed charges for offences u/s 341/34, 302/34 & 323/34 IPC against all the accused. All the accused pleaded not guilty and claimed trial.
7. In order to prove the charges, the prosecution examined around 27 witnesses.
8. Statements of all the accused u/s 313 CrPC were recorded. Accused persons examined DW-1 Mukesh Tyagi in their defence.
9. Evidence led by the parties may now be noted.
MATERIAL / INJURED / EYEWITNESSES
10. Prosecution produced complainant/injured Amit Kumar as PW-1. It further produced Ravinder (another injured) as PW-2. It also examined Naveen as PW-3. All these three persons are stated to have been with deceased Tarun at the time of incident. Prosecution further examined one Suresh Sharma as PW-4. This witness was having his cigarette shop. It was in front of his shop that the incident had allegedly happened.
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11. PW-1 is Amit Kumar. He is the author of the FIR. He deposed that on 29.07.2011, he alongwith Tarun (deceased) and Ravinder (PW-2) went to the house of Naveen (PW-3) to attend the retirement party of the father of Naveen. After completion of the party, at about 11.30 p.m., he alongwith Tarun, Ravinder and Naveen went to a beetle shop near Rathi Mill for purchasing cigarette, on their motorcycles. While they were smoking cigarettes, Tarun went for toilet, and in the meantime, one motorcycle came there and touched the leg of Ravinder. Two persons were on the said motorcycle. When the motorcycle touched the leg of Ravinder, he asked the driver of the motorcycle to drive the motorcycle carefully on which the pillion rider got down from the motorcycle and started abusing them. The said pillion rider also said to them "ABHI MAIN TUJHE DEKHTA HOON". PW-1 and others asked him not to abuse Ravinder but he still continued and tried to grab Ravinder. In the meantime, one cyclist also came there and they asked him whether he was accompanying the two motorcyclists but he did not stop there and went away. PW-1 further deposed that in the meantime, Tarun also came to the spot. He also asked about the reason of abusing and quarrel. The said boy started quarreling with Tarun also. The said boy started grappling with Tarun.
12. PW-1 further deposed that in the meantime, Naveen saw that 5 - 6 boys were coming running from the side of Janta Hotel on which they tried to run away from the spot. During the run, Tarun fell down on the road. PW-1 deposed that while running, he saw that those 5 - 6 boys were giving beating to Tarun. Those boys also started giving beatings to Ravinder. PW-1 came back to the SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 4 of 38 spot, and in the meantime, the boy who was wearing orange colour T-shirt at that time hit Tarun with a stone on his head two-three times. PW-1 deposed that he attempted to save Tarun and he lied down on Tarun to save him from stone blows but the said boy also hit him (PW-1) on his head with the stone. In the meantime, a police motorcycle came to the spot. Three boys were apprehended by the police on the spot while the other boys succeeded in running away from the spot.
13. PW-1 identified the boy who was wearing orange T-shirt on the date of incident and hit Tarun with stone as accused Anshu Tyagi. PW-1 identified him in the court. He also identified remaining two accused, namely, Somnath Gupta and Lucky Tyagi and stated that they were also apprehended by the police on the spot.
14. PW-1 deposed that he was bleeding from his head. Tarun was also bleeding from his head, and in the meantime, PCR Van came to the spot. They were taken to GTB Hospital by the PCR Van. Tarun was admitted to the hospital. PW-1 deposed that he came out from the hospital and informed his parents on phone. His parents came to GTB hospital and, thereafter, when they again went inside the hospital, Ravinder informed him that Tarun had expired. Thereafter, he alongwith Ravinder went to the house of Tarun to inform his parents. After returning again to the hospital, he was medically examined vide MLC Ex.PW1/A. Police officials took them to PS Shahdara and there his statement Ex.PW1/B was recorded.
15. He deposed that on the same day, the accused were arrested by SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 5 of 38 the police and they were also shown to him, Ravinder and Naveen, for identification. Thereafter, his statement was again recorded. Police officials have also called him to the police station on 2 - 3 more occasions. He had disclosed the particulars of appearance of the motorcycle driver who was also involved in the incident. However, the name of the said accused was not disclosed to the police by PW-1.
16. PW-1 was declared hostile regarding identity of fourth accused. He denied making any statement to the effect that he had heard name of Mukesh Bhai at the spot as the person who was instigating other accused to kill Tarun and them. He denied the suggestion that that he had disclosed to the police that during the incident he heard "MUKESH BHAI EK KO MAAR DIYA, KAHO TO INKO BHI MARU", and he heard the other voice "MAAR DO SALE KO MAIN SAB DEKH LOONGA". He was confronted with his previous statement Mark PW1/A, wherein it was so recorded. He denied the suggestion that the cyclist, who came to the spot during the quarrel had also stated that he was going to call Mukesh Bhai.
17. In cross-examination on behalf of accused, PW-1 could not tell complete address where he had gone to attend the retirement party. He stated that he had told time of incident as 11.30-11.45 p.m. and not as 11.45-12.00 mid night. However, he was confronted with his statement Ex.PW1/B. He was further confronted about various facts stated by him in the examination-in-chief as the same were not in his statement Ex.PW1/B. SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 6 of 38
18. He told that the abuses and quarrel continued for about 1-2 minute and the entire incident lasted for about 10 minutes. He revealed that the accused persons had lifted the stones and the bricks from the spot which were lying near the beetle shop. He further told that when the accused persons were coming from the side of Janta Hotel, they were also having dandas in their hands. He told the dimensions of the stone by which accused Anshu Tyagi hit Tarun as about 9 inches in length and about 4 feet in width and about 3-4 inch in height. The said stone was of grey colour. He could not tell time of reaching GTB Hospital. He told that PCR came to the spot within 20-25 minutes of the start of the quarrel. He stated that his medical examination was conducted after about 45-60 minutes of admission of Tarun. He did not remember the time when the police officials recorded his statement. He denied the suggestion that he himself got medically examined independently. He told that his shirt and pant also got blood stained but same were not seized by the police. He could not tell whether accused Somnath Gupta was apprehended by the police on the spot or not.
19. In cross-examination on behalf of accused Lucky Tyagi, he told that he had not disclosed the details of the quarrel, its time or the names of the accused to the doctors on duty at GTB Hospital. He stated that accused Lucky Tyagi was shown to him at the PS at about 4:00-5:00 a.m. He denied that accused Lucky Tyagi was lifted from Janta Hotel. He stated that police had apprehended three persons at the spot but he was not aware whether accused Lucky Tyagi was one of them or not.
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20. In cross-examination on behalf of accused Anshu Tyagi, PW-1 denied that accused Anshu Tyagi was also lifted by the police from Janta Hotel. He denied that accused Anshu Tyagi had no role in the offence.
21. PW-2 is Ravinder. He has deposed on the same lines as PW-1. He told that accused Anshu Tyagi was the pillion rider who had got down from the motorcycle and quarreled with them. He told that it was accused Anshu Tyagi who hit Tarun on his head with big stone. He identified all the accused.
22. In cross-examination, PW-2 was also confronted with his previous statement Ex.PW2/DA wherein various facts as stated in witness box by him were not mentioned. He stated that incident lasted for about 20 minutes. He told that accused persons had brought stones and bricks while coming from Janta Hotel. He too denied that he got himself medically examined independently. He also told that his clothes had got stained with blood but the same were not seized by the police.
23. In cross-examination on behalf of accused Lucky Tyagi, PW-2 changed his stand and stated that he had not seen people coming from Janta Hotel having dandas or stones in their hands. He stated that accused Lucky Tyagi was not apprehended from the spot. Rather, he was apprehended while fleeing towards Janta Hotel. He denied that accused Lucky was not involved in the incident.
24. In cross-examination on behalf of other accused, he denied that SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 8 of 38 accused Anshu Tyagi was brought by the police from Janta Hotel. He denied that accused Anshu was not involved in the incident.
25. PW-2 was recalled u/s 311 CrPC and learned Addl. PP asked some questions from him to explain his contradictory stand taken in the cross- examination. In the said examination, he told that his version given earlier in examination-in-chief was correct. He explained that on the date of cross- examination, he got perplexed.
26. PW-3 is Naveen Kumar. It was retirement party of his father in which PW-1 and PW-2 as well as deceased had come. He too identified accused Anshu Tyagi as the pillion rider who had quarreled with them. However, this witness did not tell many facts as per his previous statement and, therefore, he was cross-examined by learned Addl. PP.
27. In the said cross-examination, he was confronted with various portions of his earlier statement Ex.PW3/A. However, he told that all the three accused persons were apprehended by the police.
28. In cross-examination on behalf of accused persons, he denied that he was giving evidence as deceased was his friend.
29. PW-4 is Suresh Sharma. He was having a tea shop at Loni Road, near K.L. Rathi Mill, Shahdara. He also used to sell cigarette on his shop. He deposed about the incident and told that on 29.07.2011 at about 11:15 pm, four boys in two motorcycles came to his shop and purchased cigarette. Thereafter, SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 9 of 38 he closed his shop and took dinner inside the shop. He was having his residence inside the shop. After about 20/25 minutes, he heard noise of abusing outside the shops. He came outside and saw a quarrel between those four persons and accused Anshu Tyagi. He deposed that after 4-5 minutes two other persons namely Somnath and Lucky came there. They also quarreled with those four boys. Accused Anshu Tyagi lifted a stone and hit the head of one of the boy out of those four boys who was lying on the ground. Accused Somnath was armed with a danda and accused Lucky was armed with a brick. He told that the person who was lying on the ground started bleeding after receiving injury on his head from stone blow given by accused Anshu Tyagi. He told that thereafter, three accused Anshu, Somnath and Lucky gave beatings to other three boys, who had also received injuries on their head. The patrolling police team in two motorcycle came to the spot and apprehended all the three accused persons, present in the court. Thereafter, PCR Van also came there and shifted the injured to the hospital. Police interrogated him and recorded his statement on 30/07/2011. He deposed that he knew all the three accused persons as they were working in the nearby Janta Hotel.
30. In cross-examination on behalf of accused persons, he denied that there was no light at the spot. He told that two halogen masts were installed near his shop. He told that the stone used by accused Anshu Tyagi was of size of half brick. He told that several brick pieces were used by the accused persons in the quarrel. He denied that due to previous enmity with accused Somnath, he was implicating him falsely. He denied the suggestion that other accused persons SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 10 of 38 were also not involved in the incident. He was confronted on some facts with his previous statement Ex.PW4/DA.
POLICE WITNESSES / INVESTIGATION WITNESSES
31. PW-6 is SI Mukesh Jain. He deposed that on 12.09.2011 he was posted as Draftsman. On that day he alongwith SI Ashish visited the spot i.e. Loni Road, Opposite Rathi Mill, Shahdara, Delhi. Insp. Jaswinder Singh met him at the spot. He inspected the spot, took measurements and prepared the rough notes as per pointing out of SI Ashish Kumar. On the basis of those rough notes, he prepared the scaled site plan Ex.PW6/A. He destroyed the rough notes and measurements, after preparation of the scaled site plan.
32. PW-10 is SI U. Bala Shankaran. He deposed that on 30.07.2011, on receipt of wireless message, he alongwith his team reached at Loni Road, opposite Rathi Mill, where he found the local police officials there. He found blood at the spot. He also found one motorcycle and a broken helmet at the spot. He inspected the spot and prepared report Ex.PW10/A. He also deposed that Ct. Shyam Lal took photographs at the spot.
33. PW-21 is Ct. Shyam Lal. He deposed that on 29/30.07.2011, after receiving call from control room, he alongwith I/C Crime Tea, SI U. Balashankaram and other staff, went to Loni Road opposite Rathi Mill, Shahdara, Delhi and reached there at about 2:00 am. He deposed that on the direction of IO Insp. Jasvinder Singh, he photographed the spot from different directions and SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 11 of 38 took 21 photographs. The photographs are Ex.PW21/A1 to Ex.PW21/A21. The negatives are Ex.PW21/B1 to Ex.PW21/B21.
34. Some police officials were produced as witnesses by the prosecution claiming that those officials had also partially witnessed the incident and were instrumental in apprehending the offenders. These witnesses are HC Haider Ali (PW-13), ASI Amar Singh (PW-18), Ct. Sunil (PW-20) and Ct. Satish (PW-22).
35. PW-13 is HC Haider Ali. He deposed that on the intervening night of 29.07.2011 and 30.07.2011, he was on patrolling duty on the official motorcycle No. DL 1SN 3768 alongwith a Delhi Home Guard Ct. Sunil (PW-20). At about 12.00 midnight, while patrolling, they reached near Balbir Nagar, T Point, 60 Feet Road. In the meantime, checking officer ASI Amar Singh (PW-18) also came there on his motorcycle with Ct. Satish (PW-22). At that time, a motorcyclist informed them about a quarrel near Rathi Mill on Loni Road. On receiving the information, they went to the spot within 2-3 minutes and found one person lying on the road having injuries on his head and face. His head and face were smeared with blood. At that time, they also saw that one person was giving stone blows to him. That person was caught hold by him with the help of Delhi Home Guard Ct. Sunil. At that time, two other persons were also lying on the road and two other persons were giving beatings to them with a danda and a brick. Those two persons were caught hold by ASI Amar Singh and Ct. Satish.
36. He deposed that accused Anshu Tyagi was the person who was SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 12 of 38 giving beatings to the person lying on the road with a stone. Accused Anshu Tyagi was apprehended by him with the help of the DHG Ct. Sunil. He identified accused Anshu Tyagi in the court. He also identified accused Somnath and Lucky Tyagi as the persons who were giving beatings to the other two persons lying on the road with a danda and a brick. They were apprehended by ASI Amar Singh and Ct. Satish. He deposed that accused Anshu Tyagi was wearing an orange colour T-Shirt at the time of the incident.
37. He deposed that after apprehending the accused persons, he informed the Control Room of the North-East District about the incident. Thereafter, the PCR Van came to the spot within 4-5 minutes. About 20-25 public persons were already present at the spot when they reached there and apprehended the accused. He with the help of PCR officials and public persons shifted the injured persons in the PCR van.
38. He deposed that thereafter SI Ashish Sharma (PW-16) and Ct. Anish came to the spot from PS Shahdara. After about 4-5 minutes, Inspector Jasvinder Singh (PW-24) and Ct. Vikram (PW-12) also came to the spot. SHO Inspector Jasvinder Singh left all of them on the spot and went to GTB Hospital alongwith Ct. Vikram.
39. He deposed that after about 20-25 minutes, the Crime Team also reached the spot and conducted investigations at the spot. SHO Inspector Jasvinder Singh returned back to the spot after about two hours. The Crime Team was present at the spot till that time. They handed over the custody of the SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 13 of 38 accused persons to Inspector Jasvinder Singh. The Crime Team officials and Inspector Jasvinder Singh also seized various articles from the spot. The photographer also took photographs in his presence.
40. In cross-examination, he stated that he had not asked nor noted down name and address or motorcycle number of the motorcycle rider who informed him about the quarrel. He told that blood stains were found at several places at the spot. He denied that accused Lucky Tyagi was not present at the spot. He denied that accused Lucky Tyagi was picked up later on from Janta Hotel.
41. In cross-examination on behalf of other accused persons, he was confronted with his previous statement Ex.PW13/DA wherein he had not stated that accused was giving stone blows to the injured who was lying on the road. Rather it was recorded that the accused was about to hit with stone in his hand when he (PW-13) apprehended. He stated that he had not taken stone from the hand of accused Anshu Tyagi and said accused was having stone in his possession till it was seized. Similarly, accused Lucky Tyagi was having blood stained brick piece in his possession till it was seized. Further accused Somnath Gupta was having blood stained danda in his possession till it was seized.
42. PW-18 is ASI Amar Singh. He deposed that on 29.07.2011, he was on duty as checking officer in the area of PS Shahdara alongwith Ct. Satish (PW-22), since 8:00 pm to 8:00 am of next day. He deposed that while checking in the area, when they reached at Loni road, T-point, Balbir Nagar, 60 Foota Road SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 14 of 38 at about 12:00 midnight, there HC Haider Ali (PW-13) and Ct. Sunil (PW-20) met them on motorcycle. Thereafter he has deposed on the same lines as PW-13.
43. In cross-examination, he stated that he had not noted down the motorcycle number or names of the riders who told about the quarrel to him. He stated that he had not gone to Janta Hotel to apprehend accused Somnath Gupta and Anshu Tyagi. However, he told that HC Haider Ali and other police officials had apprehended them from Janta Hotel at around 1:00 am.
44. PW-20 Ct. Sunil also deposed on the same lines as PW-18.
45. In cross-examination, PW-20 stated that he did not know who had handed over stone, brick and danda to the IO.
46. However, PW-22 Ct. Satish deposed contrary to his previous statement and was declared hostile. He was cross-examined by learned Addl. PP. He deposed that on 29.07.2011, he was on duty w.e.f. 8:00 pm to 8:00 am as motorcycle rider with ASI Amar Singh (PW-18). They were on patrolling in the area and they reached at about 11:45 pm near Durgapuri Chowk and when they were returning and reached at Loni Road 66 Foota Road, Balbir Nagar, there they met with HC Haider Ali and DHG Ct. Sunil, who were on their motorcycle. In the meanwhile, two boys on a motorcycle came there and informed them that a quarrel is going on at near Rathi Mill, Loni Road. Thereafter, they all went to Loni Road near Rathi Mill and saw a crowd of public persons at the spot and one person was lying on road in pool of blood. Message was passed to the control SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 15 of 38 room to send police gypsy to the spot. At the spot, persons namely Somnath Gupta, Ashu and one another person, whose name he did not recollect were present and they were seen by them in the area earlier to the incident. At that time, Somnath Gupta was having a danda and some brick pieces were lying there. Police gypsy reached at the spot and the injured was shifted to Gypsy and he was taken to the hospital. The public persons, who were present at the spot, left the spot. Accused Somnath Gupta was employed at Janta Hotel of Tyagi Ji at Loni Road and Somnath Gupta, Ashu and the third boy left the spot for the Janta Hotel.
47. He deposed that SI Ashish and SHO went to Janta Hotel and there, accused persons were arrested and all the three accused persons were arrested by the IO SI Ashish Sharma. He and ASI Amar Singh, thereafter, left for patrolling duty. He was declared hostile and cross-examined by learned Prosecutor.
48. In cross-examination on behalf of accused persons, PW-22 stated that he had handed over danda to SI Ashish Sharma. He did not remember who had handed over brick to SI Ashish Sharma.
49. PW-16 is SI Ashish Kumar Sharma. He deposed almost about the same facts as were deposed by PW-13, PW-18, etc. In addition to that, PW-16 stated that on the intervening night of 29/30.07.2011, around 12:00 midnight, he received a PCR call regarding a quarrel in which 3 - 4 persons were injured near Rathi Mill, Loni Road Delhi. The said call was recorded by Duty Officer vide DD No. 2B (Ex.PW16/A). Thereafter, he alongwith Ct. Anish went at the informed SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 16 of 38 place and found three boys i.e. the accused persons in custody of various police officials. Inspector Sh. Jasvinder also arrived there. PW-16 deposed that blood was lying on the road and a motorcycle and a broken helmet were also lying there. Blood was picked up and a parcel was prepared. The broken helmet was also put in a parcel. All the above said parcels sealed with the seal of AS and were taken into possession vide seizure memo Ex.PW16/B. The motorcycle which was lying at the spot was also seized vide the same seizure memo. A danda on which blood spots were there was recovered from accused Somnath. The said danda was also sealed with the same seal of AS and was taken into possession vide seizure memo Ex.PW16/C. HC Haider Ali had produced accused Anshu Tyagi before Insp. Jasvinder Singh. The accused was wearing an orange colour T-shirt, which was blood spotted. When accused Anshu Tyagi was apprehended, a blood stained stone was recovered from his hand. The said stone and T-shirt of the accused were sealed in a parcel with the same seal of AS and taken into possession vide memo Ex.PW16/D. ASI Amar Singh had produced accused Lucky Tyagi. Lucky Tyagi was wearing a blood spotted black colour T-shirt and when, he was apprehended a brick bet smeared with the blood was also recovered from him. The T-shirt was also got taken out. The T-shirt and brick bet were sealed in a parcel with the seal of AS and was taken into possession vide seizure memo Ex.PW16/E.
50. PW-16 further deposed that Ct. Vikram Singh came at the spot alongwith a copy of FIR and handed over the same to Insp. Jasvinder. All the three accused persons were arrested vide arrest memo Ex.PW16/F, Ex.PW16/G SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 17 of 38 and Ex.PW16/H. Their personal search were also taken vide memos Ex.PW16/J, Ex.PW16/K and Ex.PW16/L. The accused persons were also interrogated and disclosure statement of accused Anshu Tyagi Ex.PW16/M was recorded. He identified the case property.
51. In cross-examination, he told that danda and bricks remained with accused persons till arrival of Insp. Jasvinder Singh when he finally took the same from them. He told that Insp. Jasvinder Singh arrived at the spot at about 12:35 am. He told that seal of AS belonged to him. He denied that accused persons were brought from Janta Hotel.
52. PW-24 is Insp. Jasvinder Singh. He also deposed about various facts as already deposed by other witness. In addition to that, he deposed about number of motorcycle lying at the spot as DL 3SBF 2824. He went to GTB hospital and obtained MLC of Tarun (Ex.PW15/A). The concerned doctor had declared Tarun dead. He also got collected the MLC of injured Amit and Ravinder Ex.PW1/A and Ex.PW15/B respectively. He inspected the dead body of Tarun. There were injuries on the forehead and head of the deceased. The head and clothes of the deceased were stained with blood. In the hospital, other injured Amit and Ravinder also met him. Naveen was also present there. Amit was having injuries on his head and there were injury on the knees, hands and legs of Ravinder. He recorded the statement of Amit Kumar (Ex.PW1/B) which formed the basis for registration of FIR. PW-24 made endorsement Ex.PW24/A and got registered the case. He informed the Crime Team.
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53. PW-24 further deposed that he prepared site plan Ex.PW24/B at the instance of HC Haider Ali.
54. He deposed that he had recorded the disclosure statement of accused Anshu Tyagi which is Ex.PW16/M. He had recorded statements of relevant witnesses. All the three accused persons were produced before Duty Metropolitan Magistrate and were sent to judicial custody. He deposited the case property with MHC(M).
55. He got conducted postmortem of deceased Tarun at GTB Hospital.
56. He deposed that on 16.09.2011, he had handed over the case file to MHC(R), as he was transferred from PS Shahdara.
57. He identified all the accused persons. He identified the case property i.e. broken pieces of helmet as the same which were lying at the spot and were taken by him into possession as Ex.P-1, the danda on which wire is wrapped on its one end, as the same which was recovered from the accused Somnath as Ex. P-2, one stone and orange colour T-Shirt having brown stains as the same as were recovered from the accused Anshu Tyagi as Ex.P-3 and Ex.P- 4, one piece of brick and one T-Shirt of black colour having brown stains as the same which were recovered from the possession of accused Lucky as Ex.P-5 and Ex.P-6 respectively, one cotton wool swab as the same by which blood taken by him as Ex.P-7, piece of road having brown stains by which the blood stained earth control taken by him into possession from the spot as Ex.P-8, piece SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 19 of 38 of road as the normal earth control taken by him into possession from near the spot as Ex.P-9. Motorcycle bearing No. DL 3SBF 2824 has already been exhibited as Ex.PW22/A-1.
58. In cross-examination, it has come that he had reached the spot at about 12:30 am. He stated that he had taken brick, stone and danda from the hands of accused persons at the time of their arrest at about 8:00 am. He told that he had collected MLC of Amit and Ravinder prior to 2:30 am. Regarding using seal of AS on the pullandas, he explained that seal belonged to SI Ashish Sharma and it was used because he was not having his own seal of JS. He denied that accused persons were brought from Janta Hotel. He denied that no recovery was effected from accused persons. He denied that documents were prepared in the police station. However, he could not admit or deny about accused Lucky Tyagi to have been brought from Janta Hotel or not.
59. PW-24 was recalled and further examined. On that day weighing scale was also brought. Weight of brick piece Ex.P-5 was found to be 1.225 kg. Weight of stone piece Ex.P-3 was found to be 1.063 kg.
60. PW-26 is Insp. Rakesh Kumar. He deposed that he moved application Ex.PW26/A for getting conducted postmortem on the dead body of deceased Tarun. After postmortem dead body was handed over to the relatives through receipt Ex.PW26/B. He deposed about sending one hard disc to FSL, Rohini. Result of FSL was filed in the court vide application Ex.PW26/C. Other FSL results were also placed on record vide application Ex.PW26/D. SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 20 of 38 Supplementary chargesheet was also filed.
61. In cross-examination, he stated that he could not say if accused persons were taken out from Janta Hotel by police officials. MEDICAL / EXPERT WITNESSES
62. PW-8 is Dr. Gaurav Kaushal. He deposed that on 30.07.2011, he medically examined the patient Amit Kumar vide MLC No. B-4385 (Ex.PW1/A).
63. PW-15 is Dr. Sushma. She proved MLC of Tarun which is Ex.PW15/A. She also proved MLC of patient Ravinder Kumar which is Ex.PW15/B.
64. PW-14 is Dr. Meghali Kelkar. She conducted postmortem examination on the dead body of Tarun S/o Satish, 28 years, Male at 11.00 a.m. on dated 30.07.2011. Her detailed postmortem report bearing No. 1017/11 dated 30.07.11 running in 5 pages is Ex.PW14/A.
65. Cause of death is "Shock as a result of antemortem injury to head produced by blunt force impact". Injury No. 1, 2, 3 & 4 are sufficient to cause death in ordinary course of nature, independently as well as collectively.
66. In cross-examination, she stated that the injuries sustained by the deceased can possibly be caused with a lathi also.
67. PW-25 is Ms. Anita Chhari. She deposed that on 12.08.2011 exhibits pertaining to the present case were assigned to her for co-examination. SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 21 of 38 There were 7 cloth parcels sealed with the seal of 'AS' except parcel no. 7 with the seal of 'MK'. She examined the contents and gave her detailed report Ex.PW25/A. As per result of the analysis, blood was detected on exhibits 1, 2, 4a, 4b, 5a, 5b, 6, 7a, 7b, 7c, 7d and 7e. Blood could not be detected on exhibit 3. Serologically report is Ex.PW25/B. The blood of blood group 'O' was detected on Ex.4a, 5a, 6, 7a, 7b, 7c and 7d. The species of origin is human. After examination, remnants of the exhibits were sealed with the seal of 'AC FSL DELHI' and the report was also sealed with the above seal and forwarded to SHO PS Shahdara Delhi under signatures of Deputy Director, FSL, Rohini, Delhi vide Ex.PW25/C.
68. PW-27 is Dr. Arvind Sharma. He had examined neuro-surgical record and gave opinion regarding nature of injuries of the patient Ravinder Kumar as Ex.PW27/A. FORMAL WITNESSES
69. PW-5 HC Subhash Chand is Duty Officer. He deposed about receiving rukka and recording FIR No. 232/11 u/s 302/323/341 IPC through computer operator. Computerized copy of the FIR is Ex.PW5/A.
70. PW-7 Jwala Prasad Sharma had identified the dead body of deceased Tarun at mortuary of GTB Hospital vide memo Ex.PW7/A.
71. PW-9 Sanjay Sharma had identified the dead body of deceased Tarun at mortuary of GTB Hospital vide memo Ex.PW9/A. SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 22 of 38
72. PW-11 is Ct. Yogesh. He deposed that on 09.08.2011, he accompanied the IO to GTB Hospital mortuary. After postmortem, the doctor handed over to him two sealed pullandas and one sample seal duly sealed with seal of MK. He handed over the same to IO and IO seized the same vide memo Ex.PW11/A.
73. PW-17 is Ct. Hawa Singh. He deposed that on 12.08.2011, he had received sealed parcel of this case vide a road certificate from the MHC(M) alongwith the FSL form. He took the same to FSL office Rohini and deposited the same there with the concerned official. He received a receipt from that official and returned to the police station. He handed over that receipt to the MHCM.
74. PW-19 is Ct. Vishal Yadav. He deposed that on 29/30.07.2011, he was working as DD writer from 5:00 pm to 1:00 am. On 30.07.2011 at about 12:12 am, he received one information through telephone from control room that quarrel in front of Rathi Mill, Loni Road and 3 - 4 persons injured. He recorded the information vide DD No. 2B and he informed SI Ashish Sharma through telephone for taking necessary action. He proved the true copy of DD No. 2B dated 30.07.2011 as Ex.PW19/A. The photocopy of rojnamcha register containing DD No. 2B is Ex.PW19/A. He also proved true copy of DD No. 64B and 73B dated 29.07.2011 of PS Shahdara as Ex.PW19/B and 19/C respectively.
75. PW-23 is Zuaib. He deposed that his deceased father was the owner of motorcycle bearing No. DL-3SBF-2824. The said vehicle was released on superdari vide superdaginama Ex.PW23/A. He proved photographs of the SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 23 of 38 motorcycle as Ex.PW23/P-1 to Ex.PW23/P-5 and negatives as Ex.PW23/P-6 to Ex.PW23/P-10. Motorcycle is Ex.P-1.
STATEMENTS OF ACCUSED PERSONS
76. Incriminating circumstances appearing in evidence against accused persons were put to them as required u/s 313 CrPC. Accused persons stated that they were innocent and were falsely implicated. All of them stated that they were lifted from Janta Hotel by the police officials.
DEFENCE EVIDENCE
77. DW-1 Mukesh Tyagi is owner of Janta Eating House situated at 1/2843, Ram Nagar, Loni Road, Shahdara, Delhi-32 since last 20 years. Lucky, Somnath and Anshu Tyagi were employed in his hotel since last 2 years from the incident.
78. He deposed that on 29.07.2011, accused persons Lucky and Somnath were on duty in his hotel. Accused Anshu Tyagi was on leave on that day. Timings of his hotel were from 11:30 am to 04:30 pm and from 07:00 pm to 01:00 am. He deposed that on 30.07.2011 at about 12:40 am, few police officials had come to his hotel and taken Lucky and Somnath with them. CCTV Cameras were installed in his hotel and covered the movement of the accused Lucky and Somnath Gupta and police officials of PS Shahdara seized hard disc of computer having CCTV footage.
79. He deposed that on 02.09.2011, he had handed over hard disc and SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 24 of 38 two CDs containing CCTV footage to Insp. Jasvinder Singh which were seized by Insp. Jasvinder Singh vide seizure memo Ex.DW1/A and Ex.DW1/B. Two pen drives containing CCTV footages were also exhibited during evidence of DW-1. Same are Ex.D-1 and Ex.D-2.
80. It was found that in the said CCTV footages, recording after 12:30 am of 30.07.2011 was not available. Upon application of accused persons, hard disc was sent again to FSL and it retrieved further footage which were contained in two DVDs. Report of FSL is Ex.DW1/C. DVD-1 containing footage from 12:00 am of 30.07.2011 to 1:05 am of 30.07.2011 is Ex.D-3. DVD-2 containing footage from 1:05 am of 30.07.2011 to 1:12 am of 30.07.2011 is Ex.D-4.
81. In cross-examination, DW-1 denied the suggestion that accused Anshu Tyagi was on duty on that day. DW-1 could not say if accused Lucky Tyagi and Somnath had left hotel after 11:30 pm of 29.07.2011. He denied the suggestion that accused persons had committed the offence. SUBMISSIONS OF THE PARTIES
82. I have heard Sh. D. K. Singh, learned Addl. PP for the State and Sh. V. K. Singh, learned Counsel for the accused Anshu Tyagi and Somnath Gupta and Sh. R. K. Jain, learned Counsel for accused Lucky Tyagi. Few submissions were also made by Sh. Pradeep Teotia, learned counsel for the victim's family.
83. Learned Addl. PP argued that prosecution has brought on record SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 25 of 38 enough material to prove the guilt of the accused persons. He contended that prosecution has proved that these three accused were involved in the incident and caused death of Tarun. He referred to the evidence of witnesses in this regard.
84. On the other hand, learned Counsels for the accused persons submitted that prosecution has miserably failed to prove the charge. They contended that most of the witnesses produced by the prosecution as eyewitnesses stood contradicted for the most part of their testimonies. They termed their evidence as unreliable. They argued that their testimonies suffered from inherent infirmities and discrepancies. They contended that most of them were planted witnesses. They prayed for acquittal.
85. Learned Counsels relied upon 2013 [3] JCC 1914 titled Hargiyan Singh vs. State; 2013 [1] JCC 347 titled Laxman @ Janga vs. State; 2012 (2) CCC (HC) 475 titled Mohan Lal @ Mohani & Anr. vs. State of Punjab, 2012 [2] JCC 1185 titled Sampath Kumar vs. Inspector of Police, Krishnagiri; 2017 [1] JCC 289 titled Harbeer Singh vs. Sheeshpal & Ors.; 2013 [3] JCC 2152 titled Surinder Kumar @ Nanhe vs. State NCT of Delhi; 2013 (2) CCC (HC) 228 titled Raja Ram vs. State.
86. I have considered the submissions.
FINDINGS
87. The prosecution was required to prove the ingredients of the SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 26 of 38 offences. On the basis of the submissions of the parties, the following points for determination arise in the present case:
a). Whether accused persons were present at the spot?
b). Whether the accused persons committed the offence?
88. Both the points for determination are taken up together.
89. Both PW-1 Amit and PW-2 Ravinder have been presented as injured eyewitnesses.
90. The evidence of an injured witness commands greater respect and weightage under the law. In several decisions, such as Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6SCC 673; and Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court has time and again reiterated the value of an injured witness and has observed:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. 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".SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 27 of 38
91. Thus the evidence of an injured witness is to be accepted unless it is suffering from major contradictions and discrepancies. However, every contradiction and discrepancy is not to be considered as relevant. Only major contradictions and discrepancies merit consideration. Regarding contradictions and discrepancies, the Hon'ble Apex Court has laid down, in catena of judgments, that only major contradictions and discrepancies need be considered. Minor discrepancies are to be ignored. Reference may be made to (2011) 6 SCC 279 A. Shankar v. State of Karnataka wherein it was observed as follows:
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety."
92. As per MLC Ex.PW1/A, PW-1 Amit Kumar was having lacerated wound over head measuring 3 cm. As per MLC Ex.PW15/B, PW-2 Ravinder Kumar was having abrasions over right elbow and left knee. Both were thus injured in the incident. Their testimonies deserve higher acceptance unless the same are found to be suffering from major contradictions or discrepancies.
93. As per postmortem report Ex.PW14/A, deceased Tarun received the following injuries:
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External Antemortem Injuries:
a). Lacerated wound Y shaped present on right parietal region measuring 3 X 1 X 2.5 c.m., 6 c.m. (bone deep) from midline and 3 cm above occipital protuberance. There was underling depressed fracture of right parietal bone. The margins of the wound were reddish abraded and contused.
b). Lacerated wound Vertically placed present on right parietal region measuring 5.5 X 0.2 c.m., 6.6 c.m. above right mastoid tip and 14 c.m. above occipital protuberance and was 5 c.m.
from midline. The wound was bone deep. The margins of the wound were reddish abraded and contused.
c). Lacerated wound obliquely placed present on left frontal scalp region measuring 2.5 X 0.2 c.m., 8 c.m. above left orbital ridge and was 10 c.m. from midline. The wound was bone deep and was surrounded by an area of reddish blue contusion measuring 6 X 5 c.m. The margins of the wound were reddish abraded.
d). Lacerated wound Horizontally placed present on right forehead region measuring 2.8 X 0.2 c.m., 2 c.m. above orbital ridge and was 8 c.m. from midline. The wound was bone deep and was surrounded by an area of reddish blue contusion measuring 9 X 4 c.m. The margins of the wound were reddish abraded.
e). Reddish blue contusion measuring 6 X 4 c.m. present over left forehead, 1.5 cm above left orbital ridge and 6 cm from midline. Having a peculiar pattern of multiple obliquely placed linear contused lines, each 0.2 c.m. apart and 0.2 c.m. broad and some doted region where each dot measured 0.1 X 0.1 c.m. as shown in the figure in the postmortem report.
f). Reddish blue contusion measuring 12 X 10 c.m. present on right face and ear extending from temple region to mandible angle, 4 cm above orbital ridge and 10 cm from midline.
g). Lacerated wound measuring 2 X 0.2 c.m. bone deep present on mucosal aspect of lower lip and was surrounded by an area of contusion measuring 5 X 3 c.m. with underlying linear fracture of mandible between the canine and right lateral incisor upto the lower margin. Extra vasation of blood present in the soft tissues and the muscles.
h). Reddish blue contusion measuring 1.5 X 1 c.m. present on medial aspect of right forearm, 5 cm above right wrist joint. SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 29 of 38
i). Reddish blue contusion measuring 5 X 3 c.m. present on dorsolateral aspect of right forearm, 12 cm below right elbow joint.
j). Reddish blue contusion measuring 8 X 7 c.m. present on dorsum of right hand, just below right wrist joint.
k). Reddish blue contusion measuring 2 X 1 c.m. present on medial aspect of left arm, 13 c.m. below shoulder joint.
l). Lacerated wound measuring 1.5 X 0.2 c.m. present on the palmar aspect of left thumb. 2 c.m. above left metacarpo phalangeal joint.
m).Reddish abrasion measuring 1.2 X 0.2 c.m. present on right thumb, 2 c.m. above metacarpo phalangeal joint.
n). Reddish blue contusion measuring 10 X 7 c.m. present on postero medial aspect of right thigh, 7 c.m. above knee joint.
o). Reddish scratch abrasion measuring 15 X 0.1 c.m. present on left side of back obliquely placed 22 c.m. below seventh cervical vertebrae and 2 c.m. from midline.
94. Internal Examination:
a). Scalp: Extravasation of blood present under the scalp over right frontal, parietal, occipital region and left frontal region.
Haemorrahage was seen in right temporalis muscle.
b). Scull: Depressed fracture of right parietal bone, as shown in the figure made in postmortem report.
c). Brain: Weight was 1447 grams, congested and edematous diffuse subdural and subarachnoid Haemorrahages present on both cerebral hemisphere. Contusions present on base of bilateral temporal and frontal lobes and right occipital lobe.
d). Lungs: Right 471 grams NAD. Left lung was densely adherent to the chest wall and pleura was thickened.
e). Kidneys: Right 170 grams, extravasation of blood seen in the perirenal region with bruising of surrounding muscles and Left 140 grams NAD.
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95. Time since death was opined as about 12 hours prior to post mortem. Post mortem was conducted on 30.07.2011 between 11:00 am to 12:30 pm. This is commensurate with the prosecution story.
96. As per postmortem report, cause of death was "shock as a result of antemortem injury to head produced by blunt force impact". Thus, death of deceased Tarun was not natural. Life of Tarun appears to have been terminated by an act of a human being. It has been proved by the prosecution that death of deceased Tarun was homicidal.
97. The next question is as to who caused death of Tarun?
98. Prosecution alleges that it were accused persons who caused death of Tarun and injuries to Amit and Ravinder. Prosecution was required to establish presence of accused persons at the spot. Prosecution relies upon testimonies of various witnesses including Amit and Ravinder as well as police officials.
99. Learned counsels for the accused persons laid much emphasis on the aspect that many witnesses have falsely claimed that all the accused persons were apprehended at the spot. They referred to the CCTV footage of Janta Hotel and pointed out that two of the accused namely Lucky Tyagi and Somnath Gupta can be seen being taken away by the police officials. They thus argued that the claims of witnesses that accused persons were caught at the spot have been demolished. For the same reason, Learned counsels submitted that the entire version of these witnesses should not be believed.
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100. Learned Defence counsels also made references to various contradictions appearing in the testimonies of many witnesses. They contended that many of the witnesses have deposed beyond their statements u/s 161 CrPC and thus made vital improvements.
101. It is true that many of the witnesses have stated that accused persons were apprehended at the spot. Two of the accused i.e. Lucky Tyagi and Somnath can be seen being taken away by the police officials in the CCTV footage. This court fails to understand the reason for those witnesses, many of whom were police officials, to make this false claim. There was no necessity to falsely assert that all the accused persons were apprehended at the spot. The true facts as to how the accused persons were apprehended could be stated in the court, and the same would not have affected prosecution case in any manner. Rather this court has apprehension that attempt was made by police officials to destroy the case from the very beginning. No other objective can explain this conduct of the police officials. Not only they themselves stated incorrect facts but they also, in all probability, misguided public witnesses as well. Despite all these contradictions about place of apprehension of accused persons, this court will not discard testimonies of the witnesses about the incident.
102. From evidence of eyewitnesses, including some police officials, it has been established beyond any doubt that accused Anshu Tyagi was at the spot since the beginning of the incident. Defence is claiming that accused Anshu Tyagi was on leave. However, no such fact has been proved by the defence. It SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 32 of 38 has been consistent claim of witnesses that accused Anshu Tyagi had given stone blows on the head of the deceased.
103. Testimonies of PW-1 and PW-2 as well as PW-13 and PW-18 show the said fact. Further, it is evidence of PW-4 Suresh Sharma i.e. the person who was having cigarette shop which clinches the issue in favour of prosecution. PW- 4 was a totally independent witness. Nothing has come on record to show why he would depose falsely. From his evidence, it is more than apparent that it was accused Anshu Tyagi who had given stone blows on the head of deceased. Learned counsels for the accused made feeble attempt to create doubt about his evidence by submitting that PW-4 had stated that accused Anshu Tyagi had hit the deceased with brick piece and not with the stone. They contended that this was enough to discard his evidence.
104. In my view, this reason is not enough to discard his entire evidence. The core of the prosecution story does not get destroyed through this contradiction. It can be said to be a minor contradiction. The fact which can be deduced is that accused Anshu Tyagi had given blows on the head of deceased.
105. The CCTV footages are not of much help to the defence. Firstly, it is strange that none of the CCTV footage contains recording of prior to 12.00 midnight. Except one clip, all footages start from 12.00 midnight. The one footage which contains recording of prior to 12.00 midnight is only of few seconds lasting not more than 08 seconds. This is strange and intriguing. Secondly, the footages does not rule out completely the involvement of accused Lucky Tyagi and SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 33 of 38 Somnath Gupta. In one footage, of Camera 14, accused Lucky Tyagi can be seen rushing out and he came after few minutes. Though the time appearing in the footage is after 12 midnight, but this shows that accused Lucky Tyagi did come out of the Janta Hotel and remained outside for considerable time. Possibility of these two accused persons visiting the spot cannot be ruled out. Thus, the CCTV footages are not of much benefit to the accused persons.
106. Learned counsels pointed out that PW-1 Amit and PW-2 Ravinder got themselves medically examined independently, and that too much belatedly. They thus contended that both were planted witnesses.
107. In my considered opinion, this reason is no reason for concluding that they are planted witnesses. They have explained why they were examined later.
108. Learned counsels also strongly contended that accused persons have been falsely roped in this case by the police officials. They referred to the testimonies of the police witnesses i.e. PW-13 and PW-16. Both these witnesses have claimed that accused persons were having stone, brick and danda in their hands till the time these were seized. They argued that it was next to impossible that accused persons would be having these articles in their hands for such a long period. They submit that it was quite unnatural. They thus argued that this was another reason which shows that accused persons have been falsely implicated.
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109. In my view, this is yet another instance showing an attempt on the part of police officials to weaken and destroy the case. Why would an accused be holding stone or brick or danda in his hand for long i.e. many hours extending upto 3-4 hours. It was not possible under any circumstances. Again this court fails to understand the reason for these police officials to claim so. The only purpose seems to be the one just indicated heretobefore.
110. Testimony of DW-1 Mukesh Tyagi is not of any help to the defence. He merely deposed on the basis of CCTV footage and nothing else.
111. Happening of the incident on the spot has been confirmed. There was lot of blood at the spot. There is no doubt that incident had happened at the place as alleged. Prosecution has shown that accused Anshu Tyagi had given stone blows on the head of deceased Tarun. Prosecution has also shown that co- accused Lucky Tyagi and Somnath Gupta had also joined him and gave beatings to Amit and Ravinder. However, both Lucky Tyagi and Somnath Gupta appear to have not caused any injury to deceased.
112. The judgments cited by learned defence counsels are peculiar to their own facts and do not help the defence.
113. Thus considered, this court holds that accused Anshu Tyagi gave stone blows on the head of deceased Tarun. Further, accused Lucky Tyagi and Somnath Gupta caused hurt to Amit and Ravinder with brick and danda.
114. The next question is what offences are made out from these facts? SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 35 of 38
115. In the case of Chenda @ Chanda Ram vs. State of Chhatisgarh, reported as (2013) 12 SCC 110, Hon'ble Supreme Court considered the difference between 'murder' and 'culpable homicide not amounting to murder' and has once again thrown light on this issue. It observed as under:
"2. 'Homicide', as derived from Latin, literally means the act of killing a human being. Under Section 299 of the Indian Penal Code (hereinafter referred to as 'the Code'), homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 which consists of two parts........"
116. Thereafter, it also took note of another landmark judgment in the case of State of Andhra Pradesh vs. Rayavarapu Punnayya and Another , (1976) 4 SCC 382, and observed:
"12. In State of Andhra Pradesh vs. Rayavarapu Punnayya and Another, it was held that culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder, falling under Section 304 of the Code. It was further held that there are three degrees of culpable homicide. The first is murder under Section 300; second, culpable homicide not amounting to murder falling under the first part of Section 304; and third is culpable homicide not amounting to murder falling under the second part of Section 304. To quote: -
"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 36 of 38 is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section
304."
117. It is appearing from the evidence that accused Anshu Tyagi had lifted the stone at the spot and hit deceased with it. It is also evident that a sudden fight had ensued pursuant to sudden quarrel which had taken place between the parties at the spot. Therefore, Exception (4) to Sec. 300 IPC will apply. The said Exception reads as under:
Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
118. As a result, the offence committed by accused Anshu Tyagi will not be termed murder. Rather it is culpable homicide not amounting to murder. The said offence is punishable u/s. 304 IPC.
119. Multiple stone blows were given to the deceased by accused Anshu Tyagi. Therefore, it can be safely concluded that accused Anshu Tyagi caused death of deceased Tarun by causing bodily injury as was likely to cause death. The said offence is punishable u/s. 304(Part-I) IPC.
120. In view of the above discussion, accused Anshu Tyagi is held guilty and convicted for the offence punishable u/s. 304(Part-I) IPC. Accused Lucky SC No. 44380/2015 State Vs. Anshu Tyagi & Ors. Page 37 of 38 Tyagi and Somnath Gupta are held guilty and convicted for the offence punishable u/s. 324/34 IPC.
121. Let the convicts be heard on sentence.
Digitally signed by
Announced in open court SANJAY BANSAL
on day of 8th January, 2019.
SANJAY Location:
Karkardooma
BANSAL Court
Date: 2019.01.11
16:07:11 +0530
(SANJAY BANSAL)
Special Judge (NDPS) / ASJ /
NE/KKD Courts / Delhi.
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