Delhi District Court
State vs Ravinder Fir No.525/2016 Ps Anand ... on 5 February, 2019
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC IN THE COURT OF SHRI SAURABH PARTAP SINGH LALER ADDITIONAL SESSIONS JUDGE (PILOT COURT) WEST DISTRICT : TIS HAZARI COURTS : DELHI SC No. 293/2018 FIR No. 525/2016 U/s. 302 IPC P.S Anand Parbat In the matter of : State Versus Ravinder S/o Chandra Shekhar Giri R/o H. No. 2087/F-12/B, Gali No.21, Prem Nagar, Anand Parbat, New Delhi Permanent Address: Village & PS Angar Ghat, District Samasti Pur, Bihar Date of Institution : 15.03.2017 Date of reserving Judgment : 22.01.2014 Date of pronouncement : 05.02.2019 Appearances For the State : Mr. Santosh Kumar, Additional Public Prosecutor. For the accused : Mr. V.S. Aggarwal, Advocate for accused Sessions Case No.293/2018 Page 1/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC JUDGMENT
1. Accused namely Ravinder son of Chandra Shekhar Giri was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) upon conclusion of investigation into First Information Report (FIR) No.525/2016 of police station (PS) Anand Parbat for offence punishable under Sections 302 of the Indian Penal Code (IPC), 1860.
2. Prosecution Version As per the prosecution story, on 04.12.2016 at 10.30 p.m vide DD no. 31 A, a PCR call was received that a person was lying unconscious at Nehru Nagar near Ramleela Ground, Anand Parbat, Delhi. On receipt of the information, ASI Braham Swaroop alongwith Ct. Dhirender reached the spot. At about 12.22 a.m vide DD no. 3A, a call was also received from Lady Harding Medical College Hospital (LHMC Hospital) about admission of one injured namely Ravinder son of Chandra Shekhar aged 19 years R/o 2087/12A, Prem Nagar, Anand Parbat, Delhi, which was also marked to ASI Braham Swaroop. After reaching the place of incident, ASI Braham Swaroop came to know that injured had been removed to LHMC Hospital by the PCR van. They reached LHMC hospital Sessions Case No.293/2018 Page 2/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC where Deepak son of Satish Chandra Sharma aged 24 years R/o T-122, Punjabi Basti, Baljeet Nagar, Anand Parbat was found to be admitted vide MLC No. 61058/16 in unconscious stated with alleged history of assault, having severely lacerated whole scalp. Injured was unfit for statement. Shri Dinesh Sharma, elder brother of injured was present in the hospital, who stated that he and his younger brother Deepak had been working in Action Shoes Company, Inderlok. On 04.12.2016 at about 8.30 - 9.00 p.m, friends of his brother Deepak, Rahul and Ravinder S/o Chander Shekhar Giri had come, who accompanied Deepak for attending a marriage function. After some time, one boy came to Dinesh Sharma and informed that a quarrel had taken place between Deepak and Ravinder and Ravinder had hit on the head of Deepak with a brick and Deepak was lying at Nehru Park in injured condition. Dinesh Sharma reached at the place of incident where he found his brother Deepak having head injury. He also saw Ravinder standing in the park, who upon seeing him ran away. He took his brother Deepak to Lady Harding Hospital with the help of PCR van. Dinesh Sharma stated that Ravinder had tried to kill his brother and legal action be taken Sessions Case No.293/2018 Page 3/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC against him. On the basis of above-said statement of Dinesh Kumar, FIR u/s 307 IPC was registered. Crime team was informed and the spot was got photographed. Exhibits were lifted from the spot.
3. On 05.12.2016, Deepak expired during his treatment in the LHMC hospital and FIR earlier registered under section 307 IPC was converted under section 302 IPC. The postmortem examination of dead body was got conducted. During further investigation, injured Ravinder was interrogated, who confessed his guilt of committing murder of Deepak. Accordingly, accused Ravinder was arrested in the present case. IO collected the postmortem examination report in which cause of death was opined to be cranio-cerebral damage consequent upon blunt force impact over head. All injuries were antemortem in nature. IO also sent the Exhibits to FSL. As per the FSL report blood of the deceased was found on the clothes of the accused seized at the hospital during his treatment.
4. After conclusion of the investigation, the I.O came to the conclusion that sufficient evidence were collected to establish that accused Ravinder committed murder of Deepak Sessions Case No.293/2018 Page 4/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC (deceased). Accordingly, chargesheet was filed in the court of learned Metropolitan Magistrate, who after complying with the provisions stipulated under Section 207 Cr.P.C committed the case to the Court of Session.
5. Charge After hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused vide order dated 27.04.2017, charge for the commission of offence punishable under Section 302 IPC was framed against accused Ravinder to which the accused did not plead guilty and claimed trial.
6. Prosecution Witnesses To prove the afore-mentioned charge against the accused, the prosecution examined 32 witnesses in all. For the sake of convenience, a brief description of all the prosecution witnesses as well as their testimonies and the documents relied upon them is stated herein below, in tabular form :-
PW Name of EXIHIBIT DOCUMENTARY NATURE OF TESTIMONY NO. PW EVIDENCE PW-1 HC Siya PW-1/A Copy of DD entry Deposed about recording Ram (OSR) no.31-A in DD register of DD No. 31-A on 04.12.2016 and proved the same in the court.
PW-2 ASI Jaya PW- DD entry No. 2A dt. Deposed about recording Chand 2/A(OSR) 05.12.16 of DD No. 2A, DD No. 3A Sessions Case No.293/2018 Page 5/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC PW- DD entry no. 3 A dt. DD No. 4A and DD No. 5A (Duty 2/B(OSR) 05.12.16 on 05.12.2016. He also Officer) deposed about recording PW-2/C FIR of FIR No. 525/16 and PW-2/D Certificate u/s 65 B proved the same.
Evidence Act
PW- Dd entry no. 4A dt.
2/E(OSR) 05.12.16
PW2/F Endorsememnt on
rukka
PW- DD entry no. 5A dt.
2/G(OSR) 05.12.16
PW-3 Harish PW-3/A Receipt of dead body Identified the dead body
Kumar of Deepak (deceased) in
PW-3/B Identification
the mortuary of Lady
statement of dead
(Cousin of Harding Medical College
body of deceased
deceased) Hospital on 05.12.2016.
PW-4 Inspector PW-4/A Crime team report Inspected the spot and
Rupesh prepared crime scene
Khatri report.
(Incharge
Mobile
Crime
Team)
PW-5 Dr. Gaurav PW-5/A The clinical notes on He being the Senior
Kumar MLC of injured Deepak Resident, ENT LHMC
Hospital examined
Deepak (deceased) on
04.12.2016 and prepared
his MLC and proved the
same in the court.
PW-6 Rahul He was cited by
prosecutiion as eye
witness of the altercation
between Devender and
accused that took place
before the actual incident
in which deceased
received fatal injuries.
However, he did not
support prosecution
story.
PW-7 Dr. Raj PW-7/A Filled death form Filled up death form and
prepared death summary
PW-7/B Death summary
of Deepak on 04.12.2016
Sessions Case No.293/2018 Page 6/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
and proved the same.
PW-8 Jai Singh Made 100 number call on
04.12.2016 regarding the
fact that deceased was
lying in injured condition
in the park.
PW-9 Sh. Dinesh PW-9/A Statement before Deposed about the
Sharma police incident. Also identified
(complain- the dead body of his
PW-9/B Identification
ant) brother after postmortem
statement of dead
(Brother of examination.
body of deceased
deceased)
PW-10 Dr. PW-10/A The clinical notes of Proved the clinical notes
Bimlesh Dr. Ankur on MLC of and MLC prepared by Dr.
Thakur injured Deepak Ankur.
PW-10/B Clinical report on MLC
of accused ravinder
PW-11 Deepak PW-11/A Statement u/s 161 Cr. Deposed about the
P.C altercation between
deceased and accused
before the actual
incident.
PW-12 Suraj PW-12/A Statement u/s 161 Cr. Deposed about the
P.C altercation between
deceased and accused
before the actual
incident.
PW-13 W/Ct Deposed about receiving
Rakhi call regarding a person
lying unconscious at
(CPCR Police Control Room.
Operator)
PW-14 SI Gayatri PW-14/A Delhi police control Proved the form
Daspa room form containing the PCR call
details dated 04.12.2016.
PW-14/B Certificate u/s 65 B
Indian Evidence Act
PW-15 Ct. Yogesh PW-15/A- Negatives of the Took the photographs,
Kumar 1 TO PW- photographs of the proved the same as well
15/A-11 crime spot as the negatives thereof.
(Photogra
PW-15/B- Photographs of the
pher)
1 TO PW- crime spot
15/B-11
PW-15/D- Confronted with this
1 statement under
Sessions Case No.293/2018 Page 7/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
Section 161 Cr. P.C.
PW-16 Dr. Nidhi PW-16/A MLC no. 61058 Proved MLCs of Deepak,
pertaining to injured Ravinder and Rahul
(Senior Deepak prepared by Dr. Prem
Resident, Kishore.
PW-16/B MLC of accused
LHMC)
Ravinder
PW-16/C MLC of Rahul
PW-17 Dr. Sachin PW-17/A Medico legal post- Performed postmortem
Mittal mortem report examination on the dead
body of the deceased,
PW-17/B Death report
(CMO RML prepared the postmortem
(COLLY)
Hospital) examination report and
PW-17/C Subsequent opinion proved the same. He also
PW-17/D Examination report of proved the subsequent
alleged weapon of opinion regarding
offence i.e. brick consistency of weapon
with injuries found on the
deceased.
PW-18 Ct. Ravi Remained present in the
Kumar motuary of LHMC
hospital to safeguard
dead body of deceased.
PW-19 ASI Sanjay PW-19/A Entry no. 3126 in Deposed about deposit of
Kumar (OSR) register no. 19 exhibits and entry in
connected with DD no. register no.19 in this
MHC(M) 31A dt. 04.12.16 regard.
PW-19/B Entry no. 3127 in
(OSR) register no. 19
connected with FIR no.
525/16 dt. 05/12/16
PW-19/C Entry no. 3128 in
(OSR) register no. 19
connected with FIR no.
525/16 dt. 05/12/16
PW-19/D Copy of RC no. 1/21/17
(OSR)
PW-19/E Copy of RC no.
(OSR) 2/21/17
PW-19/F Copy of RC no.
(OSR) 13/21/17
PW-19/G Copy of FSL
(OSR) acknoledgment on
09.01.17
PW-19/H Copy of FSL
Sessions Case No.293/2018 Page 8/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
(OSR) acknoledgment on
01.02.17
PW-20 SI PW-20/A Seizure memo of Accompanied IO to the
Vidyakar exhibits mortuary of LHMC on
Pathak 05.12.2016 and 07.12.2016
PW-21 Ct. Naveen Deposited the sealed
Kumar parcel with FSL Rohini on
the direction of the IO.
PW-22 HC Anand Deposited one viscera
Singh box with FSL Rohini on
the direction of the IO.
PW-23 SI Sudesh Took one sealed pullanda
kumar alongwith photocopies of
PM report and seizure
memo and request letter
of IO to Department of
Forensic Medicine, LHMC
hospital.
PW-24 HC Took request of IO to
Sailesh Department of Forensic
Medicine, LHMC hospital
brought back one sealed
pullanda and subsequent
opinion to PS Anand
Parbat.
PW-25 Inspector PW-25/A Scaled site plan Prepared scaled site plan
Manohar and proved the same.
Lal
(Draughts
man)
PW-26 Ct. PW-26/A Seizure memo of On 04.12.2016, he
Dhirender articles i.e. Nail alongwith ASI
clipping, blood sample Bhramswaroop reached
and blood stained the place of incident and
clothes of accused thereafter to LHMC
ravinder hospital. He took the
original rukka to the the
police station for
registration of FIR. In his
presence, doctor had
taken the nail cllipping,
blood sample and blood
stained clothes of
accused Ravinder.
PW-27 Ct. PW-27/A Seizure memo of blood Deposed regarding
Sessions Case No.293/2018 Page 9/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
Sandeep stained and mud seizure of exhibits lifted
stained stone from the spot during the
investigation.
PW-27/B Seizure memo of blood
stained half piece of
brick
PW-27/C Seizure memo of blood
in guaze
PW-27/D Seizure memo of brain
matter lying on the
ground
PW-27/E Seizure memo of earth
control from the spot
PW-28 Inspector Got conducted the
Malkiat postmortem examination
Singh of deceased on
05.12.2016. He also
seized three sealed
parcels received from the
autopsy surgeon, LHMC
mortuary stated to be
containing viscera,
clothes and blood gauze
of deceased and
deposited the same in
Malkhana.
PW-29 L. Babyto PW-29/A FSL result Prepared the biological
Devi report, DNA report and
proved the same.
FSL
(Biology)
PW-30 SI Manish PW-30/A Arrest memo of Deposed about the
Kumar accused Ravinder investigation with
regards to arrest,
PW-30/B Personal search
personal search,
memo of accused
disclosure statement and
Ravinder
pointing out of place of
PW-30/C Age memo of accused occurrence by accused
Ravinder Ravinder on 05.12.2016.
PW-30/D Discloser statement of
accused Ravinder
PW-30/E Pointing out memo by
accused Ravinder of
crime spot
PW-31 ASI PW-31/A Site plan without scale Deposed about the initial
Braham investigation conducted
Sessions Case No.293/2018 Page 10/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
Swaroop by him.
PW-32 Inspector PW-32/A Request letter for Deposed about the
Darshan postmortem of investigation conducted
Lal deceased by him.
PW-32/B Statement u/s 161 Cr.
(Investigat
P.C
ing
Officer) PW-32/C Certified copy of
(COLLY) ossification test report
of accused Ravinder to
ascertain his actual
age
PW-32/D Certified copy of order
dt. 20.01.2017 passed
by Sh. Deepak Dabas
Ld. ACMM
PW-32/E Appliation regarding
submission of FSL
result vide no. FSL-
2017/B-710, Bio no.
0228/17 dt. 15/05/17
PW-32/F Appliation regarding
submission of FSL
result vide no. FSL-
2017/C-0193/4400 J dt.
09.03.2017
7. Statement of Accused
After conclusion of prosecution evidence, statement of the accused Ravinder under Section 313 Cr.P.C was recorded on 15.05.2018 wherein the accused denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he has been falsely implicated in the case. Accused stated "Deepak (since deceased) used to quarrel with many persons and there were cases against him also. The deceased Deepak was much healthier to me and I Sessions Case No.293/2018 Page 11/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC could not have quarrelled with him. I have been falsely implicated in the present case at the instance of his brother and other relatives".
8. The accused did not lead any evidence in his defence.
9. Final Arguments 9.1. Arguments were advanced by Shri Santosh Kumar, learned Additional Public Prosecutor for the State and Shri V.S Aggarwal, learned counsel for accused Ravinder. 9.2. Learned Additional PP submitted that the prosecution has proved that it was the accused only who committed murder of deceased Deepak as the prosecution proved that he was present at the spot where the deceased was found in injured condition, that he had altercation with the deceased just before deceased was found in injured condition at the park, that he also had injuries on his body, that his clothes had blood stains of blood of deceased upon them and that the deceased before his death made dying declaration to his brother that it was accused who hit him. 9.3. Learned defence counsel on the other hand submitted:-
Sessions Case No.293/2018 Page 12/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
a) That there is no eye witness of the alleged incident.
The case is based on circumstantial evidence and the prosecution has failed to prove the circumstances that establish the guilt of accused. Learned counsel relied upon judgment titled Anjan Kumar Sharma Vs. State of Assam 2017 AIAR (Crl.)754.
b) that PCR call was made that a person was lying unconscious in the park and even as per MLC the deceased was admitted in unconscious state, but despite being unconscious throughout, PW-9 Dinesh (brother of deceased), testified that the deceased told him that the accused had hit him with a stone.
c) That in his complaint PW-9 Dinesh stated that accused told him that he had quarrel with the accused, but in his testimony he stated that deceased told him that accused hit him with a stone.
d) That PW-9 Dinesh further stated that he saw the accused at the hospital itself, but he raised no hue and cry at that time, though police was present there and the accused could have been easily apprehended at the hospital itself.
Sessions Case No.293/2018 Page 13/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
e) That PW-9 Dinesh testified that when he tried to lift the head of deceased, his hand went inside the head of deceased, but despite such serious injury to head, alleged dying declaration was made by deceased, which is just not possible. In this regard learned defence counsel relied upon judgment titled Rajesh vs. State (Delhi High Court) dated 19.09.2017 in Crl. L.P. 267/16.
f) That though PW-9 Dinesh claim that he had accompanied the injured to the hospital, but his clothes were not seized. In this regard learned defence counsel relies upon judgment titled S. Subhulaxmi Vs. Kumaraswamy AIR 2017 SC 2322 (Para 25).
g) That HC Mahinder of the PCR Van was not examined though he was an important witness to prove dying declaration and other facts.
h) That even though at the time of medical examination of deceased at the hospital, PW-9 Dinesh was present, but he did not disclose to examining doctor the name of culprit as Ravinder despite the fact that Ravinder was Sessions Case No.293/2018 Page 14/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC also present there and was examined by same doctor (Dr. Prem Kishore) who examined the deceased.
i) That in the MLC of deceased Ex. PW 16/A there is interpolation of time, both on the front and back side, which remains unexplained.
j) That in the statement of Dinesh Ex. PW 9/A the name of accused and witness Rahul is mentioned with parentage and address, whereas PW-9 Dinesh admitted in his cross examination that he never told parentage and address of said persons to the police.
k) That the FIR after being recorded was not sent to area Magistrate, as is required under law. Learned counsel relied upon judgment titled Shyam Sunder Vs. State 1996 JCC 35 (DHC) (Para 19).
l) That the star witness of prosecution PW-6 Rahul turned hostile and specifically stated that the deceased was consuming liquor with some other boys and that he had fight with some other boys.
m) That even PW-12 Suraj stated in his testimony that accused and deceased went in different directions, Sessions Case No.293/2018 Page 15/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC which shows that the accused had left the spot and could not have inflicted injuries upon deceased.
n) That PW-8 Jai Singh and PW-9 Dinesh also did not testify about the presence of each other at the spot in their testimonies.
o) That the prosecution heavily relied upon the presence of blood of deceased on clothes of accused, but the clothes of accused were seized before his arrest at the hospital without any reason for such seizure and also without any application of the IO in this regard and without any mention of said fact in the MLC of accused. Neither the seizure memo bears signature of the doctor nor the said doctor was examined to prove the seizure of clothes. PW-31 ASI Braham Swaroop testified that the clothes seized vide memo Ex. PW 26/A were that of injured / deceased Deepak, whereas the seizure memo says something else.
p) Further the seizure memo does not mention the fact that the clothes seized were blood stained and it mentions at the the top DD No.31-A dated 04.12.2016. PS Anand Parvat,which shows that the seizure was made before Sessions Case No.293/2018 Page 16/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC registration of FIR and also before statement of PW-9 Dinesh was recorded, because, if the clothes had been seized after statement of PW-9 Dinesh, then the accused would have been arrested in the hospital itself and not subsequently on the pointing out of secret informer as alleged.
9.4. In rebuttal learned Additional PP as regards dying declaration relied upon judgment titled Prakash Vs. State of MP AIR 1993 SC65. As regards that seen evidence he relied upon judgment titled Satpal Vs. State of Haryana dated 01.05.2018 in Cr. Appeal 1892/2017 (Apex Court).
JUDICIAL RESOLUTION
10. I have given my thoughtful consideration to the submissions of both the sides and have perused the record. Law - i.e. Sections in which accused is charged
11. In the present case, accused has been charged for commission of offence punishable under Section 302 IPC. The said Section is reproduced as under:
302.Punishment for Murder- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.Sessions Case No.293/2018 Page 17/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC The relevant portion of Section 300 IPC which defines 'Murder' reads as follows:-
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 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 is aforesaid. Further, the relevant portion of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:
299. Culpable homicide- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
Appreciation of evidence
12. In order to connect the accused with the offence of murder and prove the ingredients of the aforementioned Sessions Case No.293/2018 Page 18/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC sections, the prosecution has relied upon and tried to prove the following facts/circumstances in prosecution evidence:-
12.1. Fact 1: The altercation/scuffle between the accused and the deceased prior to the incident on the same day, during which the deceased had slapped the accused, in order to prove motive.
12.2. Fact 2: The dying declaration made by deceased to his brother PW-9 Dinesh Sharma.
12.3. Fact 3: The presence of accused at the spot where deceased was found in injured condition by PW- 9 Dinesh Sharma.
12.4. Fact 4: The conduct of accused Ravinder of running away from the spot on seeing PW-9 Dinesh Sharma.
12.5. Fact 5: The injuries received by accused Ravinder on the date of incident, which he failed to explain.
12.6. Fact 6: The blood stained clothes of accused, seized during his medical examination, which were found to be having blood of deceased upon them. 12.7. Fact 7: The injuries caused to the deceased and medical opinion as regards cause of death.
13. Motive (Fact 1):-
13.1. As per the story of the prosecution the accused and the deceased had fight before the incident took place and this fight during which the deceased slapped the accused, Sessions Case No.293/2018 Page 19/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC is the reason behind the incident or the motive behind the murder.
13.2. In order to prove the said motive, the investigating agency cited three witnesses i.e. Rahul, Deepak s/o Phool Singh and Suraj who have been examined as PW-6, PW-7 and PW-13 respectively.
13.3. PW-7 Rahul as per his statement under Section 161 Cr. P.C. Ex. PW 32/B is star witness of the prosecution, who had seen the quarrel between the accused and the deceased as well as the slapping of accused by deceased. In his testimony before the court, he did not support the prosecution story and stated:-
"In the evening, I alongwith the accused who is present in the court today namely Ravider (correctly identified) and Deepak whose cousin brother was to be married on that day, went to Tikona park in the evening. We saw that the deceased Deepak was consuming liquor alongwith 3-4 other persons. A quarrel was taking place between deceased Deepak and some boys. We ran away from there. I do not know what happened thereafter. I do not know anything else about this case."
13.4. This witness was cross examined at length by the learned Additional Public Prosecutor, in which he denied the suggestions regarding involvement of the accused in Sessions Case No.293/2018 Page 20/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC the offence alleged and regarding the fight between the accused and the deceased. However, he testified regarding his mental and physical condition on 04.12.2016 and 05.12.2016 as under:-
"Police had not recorded my statement in the present case............"
"...................I know accused Ravinder as he lives in the same street in which I live . He is unmarried. I do not know about the family members of accused Ravinder. There are 7-8 houses in between my house and house of accused. I did not visit house of accused Ravinder either prior to the incident or afterwards. It is wrong to suggest that I know the family members of the accused very well and due to being won over from the side of the accused, I am stating falsely that I did not visit the house of accused Ravinder and that I do not know about the family members of accused.
I do not know if on 05.12.2016 police had recorded my statement in this case. Vol. I was under the influence of liquor. I had taken liquor on 04.12.2016 prior to the time when I alongwith accused Ravinder had gone to Tikona Park. I remained under the influence of liquor throughout the day on 05.12.2016. I do not remember if police had recorded my statement on 05.12.2016 as I was heavily drunk. It is correct that on 04.12.2016, I was heavily drunk. Vol. I do not remember what I saw on 04.12.2016 evening.Sessions Case No.293/2018 Page 21/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC ...............I had not sustained any injury on 4.12.2016. It is wrong to suggest that I was got medically examined at LHMC hospital by the I.O who had sent a constable with me to the hospital.
At this stage, the witness is shown MLC number 125497 in the name of Rahul son of Ben Bahadur, aged 24 years, Male, dated 5.12.2016 having thumb impression at point A and B. The MLC is marked as Mark PW-6/B. I cannot say if I had put the said thumb impression on the MLC. Vol. I may have been taken to the hospital by the police. It is wrong to suggest that I am deposing falsely in this regard. It is wrong to suggest that in my statement Mark PW-6/A I had stated to the IO that I was called in the P.S for inquiry and was got medically examined at LHMC Hospital vide MLC No. 125497. It is wrong to suggest that I had stated this fact to the police in my statement Ex.PW-6/A from point F to F where the said fact is recorded but witness denies.
It is wrong to suggest that I am deposing falsely in order to save the accused from punishment being won over by him. It is wrong to suggest that I was not under the influence of liquor on 5.12.2016......"
13.5. From the above reproduced testimony of PW-7 Rahul, following points can be culled out:- Sessions Case No.293/2018 Page 22/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
a) PW-7 Rahul knew accused and they were going together to attend the marriage of cousin brother of Deepak s/o Phool Singh.
b) Accused Ravinder resides in the same street in which this witness resides, at a distance of 7 to 8 houses.
c) PW-7 Rahul was under influence of liquor on 04.12.2016 and 05.12.2016.
d) PW-7 Rahul testified once that his statement was not recorded by police, but thereafter stated that he did not knew whether his statement was recorded by police or not.
e) PW-7 after testifying about what happened on 04.12.2016 in his examination in chief stated in his cross examination that he was heavily drunk on 04.12.2016 and did not remember what he saw on 04.12.2016.
f) PW-7 deposed that he had not sustained any injury on 04.12.2016 and was not taken to Lady Harding Hospital by the police, but immediately thereafter when he was shown the MLC Ex. PW 16/C dated 05.12.2016, he Sessions Case No.293/2018 Page 23/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC testified that he may have been taken to the hospital by the police.
13.6. Though this witness did not support the story of prosecution as far as the quarrel between the deceased and accused is concerned and as regards slapping of accused by the deceased, but the reason for not doing so seems to be the fact that PW-7 and accused Ravinder were known to each other even prior to the incident and the fact that they were going together to attend the marriage shows that they were friends. The denial of PW-7 of having made any statement to police and of having been medically examined at Lady Harding Hospital at the first instance and thereafter vaguely stating that he may have given the statement or may have been medically examined, shows that this witness at the first instance tried to deny whatever was put to him by the prosecution, but, thereafter recovered from the said denial and introduced a new fact that he was heavily drunk on 04.12.2016 as well as on 05.12.2016 and for that reason he did not remember what happened on those days. The statement of PW-6 can not be relied upon as proof of the motive behind the incident, Sessions Case No.293/2018 Page 24/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC because he did not testify regarding any quarrel between the accused and the deceased, but because of the somersautls that he made during his testimony, his testimony can also not be relied upon as evidence of the fact that the deceased was consuming liquor alongwith 3-4 other persons in Tikona Park and the deceased was quarreling with some boys (other than accused). 13.7. PW-11 Deepak testified regarding the quarrel between the accused and the deceased as under:-
"On 04.12.2016, it was marriage of son of my Bua namely Dinesh Kumar. I have invited my friend namely Rahul in order to attend the marriage ceremony. My friend Raul brought with him his friend namely Deepak. At about 7:00-08:00 pm, we were all singing and dancing on the road when accused Ravinder also came there near Ambedkar Park. Accused Ravinder is present in the court today (correctly identified by the witness). Deepak who is now deceased caught hold of accused Ravinder and started slapping him. I intervened and got them separated but in the meantime, both of them started throwing stones on each other. I left from there in order to attend the Barat which had reached up to the Mandir by that time."
13.8. Though the reason / cause of the fight could not come further in his testimony, but he testified about the fact Sessions Case No.293/2018 Page 25/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC that there was a quarrel in which deceased slapped the accused .
13.9. The witness was cross examined by learned Additional PP, with the permission of the court, in which he reiterated that deceased had slapped the accused on some issue, but what was the said issue could not be brought on record even in the said cross examination. 13.10. The relevant portion of cross examination by learned Additional PP is reproduced as under:-
"It is correct that on 06.12.2016, IO had recorded my statement after making inquires from me. It is wrong to suggest that on 04.12.2016, besides my friend Rahul I had also invited deceased Deepak Sharma to attend the marriage. It is wrong to suggest that I had stated this fact to the IO in my statement Ex. PW 11/A. At this stage, witness is confronted with statement Ex. PW 11/A from point A to A where it is so recorded but the witness denies.
It is correct that accused Ravinder had come behind Rahul and Deepak Sharma (deceased). It is correct that accused Ravinder Giri was wearing the factory clothes which he used to wear at his work place and was under influence of liquor and I had also given 1-2 peg of liquor to Rahul and Deepak to celebrate the marriage.Sessions Case No.293/2018 Page 26/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC It is correct that Ravinder Giri was moving here and there and on some issue altercation between him and Deepak Sharma took place in which Deepak slapped accused Ravinder.
It is correct that after that I and Rahul got Ravinder pacified and asked accused Ravinder to leave the said place. It is correct that in my examination in chief, I had stated that after both of them started throwing stones on each other I had left them. I had stated this fact regarding the incident which had taken place at the slope of the road whereas the second incident of slapping had taken place about half km away from the slope of the road. Firstly, I had left accused Ravinder and deceased Deepak when they were throwing stones on each other and went to the Barat procession but when we were at the slope of the road accused Ravinder again came there while we were dancing in the Barat and at that time, Deepak had given a slap to accused Ravinder.
It is correct that later on I came to know from Rahul that a quarrel had taken place again in between deceased Deepak and accused Ravinder near tikona park when I and Rahul had gone to with the Barat at Harijan Basti Sarai Rohella. I also came to know later on that in the Ramleela Park accused Ravinder had hit half brick piece on the head of Deepak Sharma due to which Deepak Sharma had got injured and died during his Sessions Case No.293/2018 Page 27/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC treatment in LHMC hospital (objected to on the ground hear say evidence)."
13.11. In State v. Sonu Panjabi (2014) 146 DRJ 37 , honourable Delhi High Court disapproved the aforesaid manner of recording the cross examination of a hostile prosecution witness by the public prosecutor. The court observed as under:-
"78. Section 142 of the Indian Evidence Act, 1872 (EA) states that leading questions may not be put in examination-in-chief except with permission of the Court. As noted above, the learned APP sought permission of the trial Court under Section 142 of the EA to put leading questions and permission was declined. The learned AAP did not seek permission of the trial Court to declare PW-27 hostile and to cross-examine her. This was an important aspect of the matter since the record in fact showed that the APP maintained at this stage that "the witness has substantially deposed the incident but she is forgetting the details". Therefore, from the point of view of the APP, the witness had not turned hostile and that is why he sought to ask leading questions under Section 142 EA.
79. Section 154 of the EA talks of permission being granted by the court in its discretion to the party who calls a witness, in this case the prosecution, to put questions to such a witness 'which might be put in cross-examination by the adverse party'. In Sat Paul v. Delhi Administration 1976 Cri LJ 295, the Supreme Court observed that the words "hostile" and "adverse" in fact restrict the discretion of the court "and that it is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or the Sessions Case No.293/2018 Page 28/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice." The Supreme Court in Sat Paul drew a distinction between the English law and the Indian law and observed that "faultiness of the memory in the case of such a witness would be another object of cross-examining and contradicting him by a party calling the witness". However, the Supreme Court did not dispense with the requirement of the party having to seek permission of the Court to put leading questions in the cross-examination of such witness. In Sri. Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233, the Supreme Court explained in what circumstances Section 154 EA could be invoked by the prosecution:-
"10..... Thus it is clear that before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witnesses cannot be allowed. In other words a witness should be regarded as adverse and liable to be cross- examined by the party calling him only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a Sessions Case No.293/2018 Page 29/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC most material point with the one which he gave before the previous authorities. The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention."
(emphasis supplied)
81. The above position was reiterated in Gura Singh v. State of Rajasthan (2001) 2 SCC 205 as under:
"Section 142 requires that leading question cannot be put to the witness in examination-in-chief or in reexamination except with the permission of the Court. The Court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the Court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The Courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness."
82. In Varkey Joseph v. State of Kerala 1993 Supp (3) SCC 745 : AIR 1993 SC 1892, in the context of Section 142 EA the Supreme Court held that the prosecution should not allowed to put leading questions so as to lead the witness to say that what the prosecution intends. The Court observed:
"The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise by called to the matter under enquiry, trial or investigation. The discretion of the court must only Sessions Case No.293/2018 Page 30/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act are intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to cross- examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness by answering merely yes or no but he shall be directed to give evidence which he witnessed." (emphasis supplied)
83. Before proceeding to examine the position in the case at hand, the law explained in the above decisions of the Supreme Court may be summarized thus:
(i) Under Section 142 EA, the permission by the Court to a party to put leading questions to its witness has to be Sessions Case No.293/2018 Page 31/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC liberally exercised where the court thinks that the grant of such permission is expedient to extract the truth and to do justice.
(ii) Under Section 142 EA, the Court can permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. However, Section 142 EA does not give power to the prosecutor to put leading questions on the material part of the evidence. The prosecutor shall not be allowed to frame questions in such a manner which the witness can answer merely by stating yes or no but he shall be directed to give evidence which he witnessed.
(iii) Section 154 EA gives discretion to the Court to permit the person calling a witness to put any question to him which might be put in cross-examination by the adverse party. However, such permission for cross-
examination cannot and should not be granted at the mere asking of the party calling the witness.
(iv) For the purposes of Section 154 EA, a witness should be regarded as adverse and liable to be cross- examined by the party calling him "only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth."
13.12. The said judgment was relied upon in judgment titled Umesh Kumar Vs State of NCT of Delhi 2017 SCC Online Del 11490. Para 25 of the said judgment is reproduced as under:-
"25. It may be recalled that the Addl. PP was permitted to cross examine PW9 only because he was, in his examination-in-chief, resiling from the statement given by him previously to the police. The transcript of evidence thereafter had to record the fact that a Sessions Case No.293/2018 Page 32/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC particular sentence in the previous statement (Ex.PW9/B) was shown to the witness and asked whether in fact he had stated so earlier. The answer to such question in the affirmative or negative had to be then recorded. Instead, the transcript shows that PW9 simply agreed to all the suggestions given to him by the Addl. PP and his answers were recorded as his positive statements rather than a response to whether he had said so in his previous statement."
13.13. In light of the aforesaid judgments, the positive statements made by PW-11 Deepak in response to the leading questions put to him by the Public Prosecutor on material facts, cannot be heavily relied upon. 13.14. Coming to the cross examination of this witness by learned defence counsel, in said cross examination he testified as under:-
"My cousin brother namely Dinesh had distributed the marriage invitation card himself. I had not given the invitation card of marriage of Dinesh to deceased Deepak. I had not disclosed to the police that at about 7:00-08:00 m when we all were signing and dancing on the road accused Ravinder also came near Ambedkar Park. I had seen Deepak in the Barat. It is wrong to suggest that I am deposing falsely."
13.15. Nothing material has come forth in his cross examination to doubt his testimony.
Sessions Case No.293/2018 Page 33/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC The testimony of this witness was put to the accused in question No.4 of his statement under Section 313 Cr. P.C. The question and the reply is reproduced herein:-
"Q4. It is appearing in the evidence against you as deposed by Deepak (PW-11) that he had given 1-2 peg of liquor to Rahul and Deepak (deceased) to celebrate the marriage and while you were moving here and there, some altercation between you and Deepak (since decased) took place, during which Deepak (since deceased) slapped you. What you have to say? Ans. Deepak (since deceased) had slapped me and thereafter I had gone to my house."
13.16. The accused admitted in his statement under Section 313 Cr. P.C. that Deepak had slapped him and the said fact stands proved from the testimony of PW-11 Deepak. 13.17. Coming to the last witness of motive, PW-12 Suraj testified about scuffle between the accused and the deceased as under:-
"I worked at a printing press, situated at Anand Parvat. Marriage of my cousin brother namely Dinesh Kumar was performed on 04.12.2016. The Bharat procession had started from the house of my Bua situated in front of ambedkar Park. All the male members had gone in the Barat and only ladies were left there. I was helping the ladies to board cars for taking them to the marriage Sessions Case No.293/2018 Page 34/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC venue, when I saw that the accused present in the court today namely Ravinder and Deepak (now deceased) were scuffling holding clothes of each other came near the ladies. Both of them were raising fill the abuses to each other. I objected as the ladies were there. Both of them stopped the fight on seeing ladies and on my intervention. Both of them went away in different directions."
13.18. This witness was also cross examined by learned Additional PP, but nothing more come forth in the said cross examination.
13.19. This witness was cross examined by learned defence counsel, in which he reiterated that he had seen the accused and the deceased scuffling with each other. His cross examination is reproduced as under:-
"I had told the police that accused Ravinder and Deepak (now deceased) were seen by me when they came near ladies by scuffling and holding clothes of each other and they were raising fill the abuses to each other. I had also stated that I separated them as the ladies were present there. The witness is confronted the statement Ex. PW 12/A where the said facts are not recorded. It is wrong to suggest that I am deposing falsely."
13.20. In his cross examination he was confronted with his statement under Section 161 Cr.P.C. Ex. PW 12/A as Sessions Case No.293/2018 Page 35/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC regards the fact that he did not mention in the said statement that deceased and the accused were abusing each other and that this witness separated them as ladies were present there. However, the omission to mention the said facts in statement under Section 161 Cr.P.C. can not be said to be such an omission which may fall within the ambit of contradiction, in light of judgment titled Tahsildar Singh v. State of U.P., AIR 1959 SC 1012. In the said judgment Honourable Apex Court observed as under:-
"25. From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only"
can be implied i.e. the witness saw A only stabbing B; Sessions Case No.293/2018 Page 36/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
(ii) a negative aspect of a positive recital in a statement :
illustration in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the court cannot stand together: illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i.e. at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false.
26. The aforesaid examples are not intended to be exhaustive but only illustrative. The same instance may fall under one or more heads. It is for the trial Judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness box, to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfies the requirements of law." 13.21. From the testimonies of PW-6 Rahul, PW-11 Deepak s/o Phool Singh and PW-12 Suraj, as well as statement under Section 313 Cr.P.C. of the accused, it can be concluded that the accused and the deceased were present near the spot where the incident took place and just before the incident there had been scuffle between the Sessions Case No.293/2018 Page 37/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC accused and the deceased during which the deceased had slapped the accused.
13.22. Thus, the motive to commit offence of murder stands proved from the testimonies of these witnesses. However, in order to prove whether accused Ravinder in furtherance of the said motive committed the offence alleged or not is a separate fact, which has been discussed separately.
14. Dying declaration, presence of accused at the spot and subsequent conduct of accused (Fact 2, 3 & 4):-
14.1. In order to prove the dying declaration, the presence of the accused at the spot and his conduct of running away from the spot upon seeing the brother of deceased, the prosecution examined brother of deceased namely Dinesh Sharma as PW-9. The said witness, in his testimony, testified that the deceased had left the house on 04.12.2016 alongwith accused Ravinder and his friend Rahul for attending the marriage and at about 10 p.m on that day, he was informed by 3-4 boys that the deceased was lying in injured condition in the park and as soon as he reached the park, he saw Ravinder standing near the boundary wall of the park, who fled away from the spot Sessions Case No.293/2018 Page 38/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC upon seeing the said witness. His examination-in-chief in this regard is reproduced as under:
"On 04.12.2016, accused Ravinder, who is present today in the court (correctly identified) and his friend Rahul came to my house at about 5 p.m and Accused Ravinder and Rahul asked my brother namely, Deepak (since deceased) to come with them for attending the marriage of one common friend, at that time my wife and children were present. On their asking, my brother Deepak left the house with accused Ravinder and his friend Rahul for attending the marriage. On the same day, after taking dinner at around 10 p.m, I was walking outside the Nehru Nagar park. 3-4 boys met me and told that my brother Deepak was lying in injured condition in the park. After knowing the said fact, I went inside the park and saw that accused Ravinder was standing near the grill on the boundary wall of the park. I called accused Ravinder but he fled away from there. I also noticed that the blood stains were on the wearing clothes of accused Ravinder. I further saw that my brother was in the pool of blood and while I was trying to lift his head, all the fingers of my palm entered into his head. Simultaneously, PCR van came there and with the help of the police officials, I shifted my brother in PCR van. I also sat in the PCR van. I shook my brother and asked him as to what had happened. He told me that accused Ravinder had hit him with a stone.Sessions Case No.293/2018 Page 39/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC My brother was taken to Lady Harding hospital where my brother got treatment for sometime. In the meantime, my other relatives including my mother came there. Police recorded my statement Ex.PW-9/A bearing my signatures at point A. In the same night, my brother expired."
14.2. In the afore-said examination in chief, the witness has also stated that when the injured was being shifted to the hospital in PCR van, he also sat in the said van and he shook his brother and asked him as to what had happened upon which his brother / deceased informed him that accused Ravinder had hit him with a stone. 14.3. The said witness therefore, testified as regards the abovesaid three facts in his examination in chief and he was cross-examined at length by the Ld. Defence counsel. Important points which came in cross-examination of this witness and which were highlighted by the Ld. Defence counsel, can be summed up as under:-
a) That the deceased was healthier than accused Ravinder.
b) That the said witness in his complaint Ex.PW-9/A stated that he and his brother/deceased were working in Sessions Case No.293/2018 Page 40/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC Action Shoes Company at Inderlok whereas in his cross-examination he denied that he had stated the said facts to the police and voluntarily testified that the deceased was working in the same area but in some other company situated in front of his company.
c) That this witness never mentioned the parentage and addresses of Rahul and accused Ravinder to the police but in his complaint Ex.PW-9/A, the parentage and addresses of both Rahul and Ravinder have been mentioned.
d) That the said witness in his complaint Ex.PW-9/A mentioned that on 04.12.2016, the deceased had left the house alongwith Rahul and Ravinder to attend a marriage, however, in his cross-examination he categorically denied that he had stated the said fact to the police.
e) That this witness informed about the fact that his brother was lying in the park in injured condition by 3-4 boys but he failed to disclose the name and identity of any of them and none of the said boys was examined during prosecution evidence.Sessions Case No.293/2018 Page 41/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
f) In his examination in chief he stated that when he reached the spot he found Ravinder standing near the grill on the boundary wall of the park, however in his statement Ex.PW-9/A he did not specifically mention that Ravinder was standing near the grill on the boundary wall of the park.
g) That this witness stated that his clothes were also stained with the blood of his brother while he helped in shifting him to the hospital but the said clothes were never seized by the police.
h) That the said witness testified in his examination in chief that when he tried to lift the head of the deceased, all the fingers of his palm entered into his head which means that the brain matter was out and the injuries were so serious that the deceased could not have made a dying declaration as stated by this witness.
i) That in his complaint Ex.PW-9/A, the witness mentioned that in the PCR on the way from the spot to the hospital, the deceased informed the witness about quarrel with Ravinder, whereas in his testimony before the court the Sessions Case No.293/2018 Page 42/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC witness stated that the deceased told him that Ravinder had hit him with a stone.
j) That in this regard when specific question was also put to the witness, he categorically stated that he had told the police that his brother/deceased had told the him that he was hit by Ravinder.
k) That this witness also failed to disclose as to who where the PCR officials who had taken the deceased to the hospital.
l) That witness identified the clothes of accused Ravinder which he was wearing on the date of incident as Ex.P- 9B, but the description of the said clothes was neither given in the complaint Ex.PW-9/A, nor in his examination in chief.
m) Last but not the least, the witness stated in his cross-examination that when he reached the hospital alongwith his injured brother, he saw accused Ravinder in the hospital, but at that stage, he did not raise any alarm and did not point out to the PCR/police officials that the assailant was very much present in the hospital so that he could be apprehended in the hospital itself. Sessions Case No.293/2018 Page 43/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC 14.4. In light of the aforesaid points highlighted by learned defence counsel, this court is to decide whether this witness is reliable and credible witness and that how much of his testimony can be safely relied upon against the accused.
14.5. It may be noted that as a matter of fact the statement of this witness was recorded at about 11:30 PM on 04.12.2016 at Lady Harding Hospital, where his brother / deceased was admitted in very serious condition, having several deep wounds on his head, to the extent that brain matter was coming out. In these circumstances, this witness made statement Ex. PW 9/A and as such minor contradictions as to the place of work of the deceased does not affect the credibility of this witness. 14.6. Even as regards dying declaration, in his complaint Ex. PW 9/A the witness stated that his brother (deceased) told him about his quarrel with the accused in PCR Van, which shows that there was no time and opportunity for this witness to cook up a false story of dying declaration that too in the circumstances, where his brother was on death bed.
Sessions Case No.293/2018 Page 44/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC 14.7. As regards dying declaration in serious medical condition, learned defence counsel relied upon judgment titled Rajesh Vs. State dated 19.09.2017 in Crl. L.P. 267/2016. However, in the said case there were multiple fire wounds and even otherwise the medical condition of the victim is different in each case and in the present case. PW-17 Dr. Sachin Mittal in his cross examination stated that the deceased survived post incident for a period of about two hours. During those two hours the possibility of the deceased regaining consciousness and disclosing the name of culprit to his brother / PW-9 Dinesh can not be absolutely ruled out. It may be noted that in the present case the dying declaration is mentioned in the FIR itself which was recorded at 12:30 AM on 05.12.2016 i.e. just 2.5 hours after the first information was received in Police Control Room. It is quite impossible that in such short duration and during such tense moments, PW-9 Dinesh concocted a false dying declaration so as to implicate Ravinder with whom he had no previous enmity. 14.8. Thus, the dying declaration made by deceased to his brother PW-9 Dinesh can be relied upon, moreso, as the Sessions Case No.293/2018 Page 45/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC said dying declaration corroborates the testimony of PW-11 Deepak and PW-12 Suraj regarding quarrel between accused and deceased and also corroborates the testimony of PW-9 Dinesh, who saw the accused present in the same park where deceased was lying injured. 14.9. It may be noted that it is not the story of the prosecution or of the defence that PW-11 Deepak and PW- 12 Suraj were present in the hospital, and if they were not in the hospital, then unless and until the deceased himself told PW-9 Dinesh about quarrel between him and accused and unless PW-9 Dinesh had himself seen the accused in the park, there was no reason for him (PW-9) to name Ravinder as assailant.
14.10. Thus, the evidence of PW-9 Dinesh, as regards dying declaration, as regards presence of accused at the spot and as regards the conduct of accused of running away from the spot (instead of helping the deceased, if he was not the assailant) is reliable piece of evidence, as proof of the fact that it was accused Ravinder and none else who committed the offence alleged i.e. who hit the Sessions Case No.293/2018 Page 46/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC deceased with brick in his head which resulted into his death.
14.11. The argument, that PW-9 Dinesh should have pointed towards the accused in hospital itself, has been dealt with in the point relating to blood spots found on clothes of accused i.e. Fact No.6.
15. Injuries received by accused Ravinder on 04.12.2016 (Fact 5):-
15.1. The accused went for his treatment to Lady Harding Hospital on 04.12.2016 at 11:30 PM alongwith his brother Arvind and there he was examined by Dr Prem Kishore vide MLC No.61059/2016 Ex. PW 16/B, and he mentioned the particulars of injuries / symptoms as under:-
"Conscious oriented Alcohol smell+ve OE - Swelling and laceration over Lt eye brow Swelling over upper lip Pain over Lt. Side lower chest."
15.2. The same injuries were also reported by Dr. Ankur of Department of Surgery overleaf the MLC as Ex. PW 10/A. Sessions Case No.293/2018 Page 47/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC 15.3. The MLC stands proved from the testimony of PW-16 Dr. Nidhi and PW-10 Dr. Bimlesh Thakur, who identified the writings of examining doctor. Further, when the accused was questioned as regards his medical examination vide MLC Ex. PW 16/B, in his statement under Section 313 Cr. P.C., he admitted the same to be correct and clarified that he was taken to the hospital by his brother Arvind as deceased had given beatings to him on which he had suffered injuries. The said question 26 and answer thereto is reproduced as under:-
"Q.26 It is appearing in the evidence against you that on 04.12.2016 at about 11:30 p.m., you were medically examined at Lady Harding Medical College vide your MLC Ex.PW-16/B. What you have to say?
Ans. It is correct. I was taken to the hospital by my brother Arvind as Deepak (since deceased) had given beatings to me on which I had suffered injuries."
15.4. Thus, it stands proved beyond reasonable doubt that the accused was medically examined on 04.12.2016 at 11:30 PM vide MLC Ex. PW 16/B and that he received the injuries mentioned in MLC (as reproduced above) during fight / quarrel with deceased Deepak. The said medical evidence is consistent with and corroborates the Sessions Case No.293/2018 Page 48/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC testimonies of PW-11 Deepak and PW-12 Suraj, who had also testified regarding quarrel / fight between the accused and the deceased .
15.5. At the same time the said medical evidence also establishes that PW-7 Rahul deposed falsely as he stated that deceased had quarreled with other boys, when he, accused and PW-11 Deepak saw the deceased on 04.12.2016 and that they instead of intervening in the said quarrel, ran away from there. If PW-7 Rahul had run away from the spot alongwith PW-11 Deepak and the accused, then how come there was a quarrel / fight between the deceased and accused in which accused suffered injuries (as mentioned in Ex. PW-16/B).
15.6. The injuries received by accused, the time when he received the said injuries and the fact that he had consumed alcohol at that time, are consistent with the story of prosecution and corroborate other evidence against the accused.
16. Clothes of accused stained with blood of deceased (Fact-6):-
Sessions Case No.293/2018 Page 49/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC 16.1. In order to prove that the clothes that the accused was wearing on 04.12.2016 were stained with blood of deceased, the prosecution examined following witnesses:-
a) PW-9 Dinesh Sharma (brother of deceased).
b) PW-19 ASI Sanjay Kumar MHC (M).
c) PW-20 SI Vidyakar Pathak.
d) PW-21 Constable Naveen Kumar.
e) PW-23 SI Sudesh Kumar.
f) PW-24 HC Sailesh.
g) PW-26 Constable Dhirender.
h) PW-27 Ct. Sandeep.
i) PW-28 Inspector Malkiat Singh.
j) PW-29 L. Babyto Devi, Assistant Director (Biology), FSL, Rohini.
k) PW-31 ASI Braham Swaroop.
16.2. Of the aforesaid 11 witnesses, the star witness of the prosecution is PW-31 ASI Braham Swaroop and PW-26 Constable Dhirender as the clothes and the nail clippings of the accused were seized by the said officials vide memo Sessions Case No.293/2018 Page 50/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC Ex. PW 26/A at Lady Harding Hospital upon the production of the same by Dr. Prem Kishore.
16.3. PW-31 ASI Braham Swaroop upon receiving DD No.31A dated 04.12.2016 left the police station for the spot alongwith PW-26 Constable Dhirender, where they met PW-27 Constable Sandeep. However, as injured had already been removed to hospital by PCR Van, hence, PW- 31 left PW-27 at the spot and went to lady Harding Hospital with PW-26.
16.4. As per PW-2 ASI Jai Chand (Duty Officer), he recorded DD No.3A dated 05.12.2016 at 12:22 AM upon receiving information from Constable Rajesh from Lady Harding Hospital that accused Ravinder was brought to hospital by Arvind after getting injured in a quarrel. The said information was conveyed by PW-2 ASI Jai Chand to PW-31 ASI Braham Swaroop on telephone for necessary action.
However, interestingly PW-31 ASI Braham Swaroop did not testify in his examination in chief that he also received information regarding DD No.3A dated 05.12.2016, regarding admission of Ravinder in Lady Harding Hospital. Sessions Case No.293/2018 Page 51/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC 16.5. PW-31 ASI Braham Swaroop testified as under
regarding his visit to Lady Harding Hospital on 04.12.2016:-
"...........I left him at the spot and went to LHMC alongwith Ct. Dhirender from where I obtained MLC of the injured. The doctor handed over three sealed parcels containing the nails, blood sample and clothes respectively of the injured Deepak alongwith sample seal of CMO LHMC. I took into possession of the same vide seizure memo already Ex. PW 26/A bearing my signature at point B. Dinesh Sharma, brother of injured Deepak met me at the hospital. I recorded his statement, prepared the rukka and handed over the same to Ct. Dhirender for registration of FIR..............."
16.6. He stated that he seized the clothes of injured Deepak vide memo Ex. PW 26/A, whereas as per the contents of memo Ex. PW 26/A, the clothes were that of accused Ravinder and not that of Deepak. No clarification in this regard was sought by the learned Additional PP in the testimony of this witness.
16.7. In his cross examination he stated that he received DD No.31A at the police station, which was regarding the fact that the deceased was lying in injured condition at Nehru Nagar, Near Ram Leela Ground, Anand Pravat. Even in his cross examination the said witness never Sessions Case No.293/2018 Page 52/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC stated that he received DD No.3A dated 05.12.2016 regarding admission of the deceased, but without receiving the said DD and without having recorded the statement of complainant PW-9 Dinesh, the clothes of the accused were seized vide memo Ex. PW 26/A in DD No.31A dated 04.12.2016 and not under DD No.3A dated 05.12.2016. 16.8. This witness failed to explain as to why the nail clippings, blood samples and clothes of the accused were seized under DD No.31 A dated 04.12.2016 vide memo Ex. PW 26/A, when the said police officials at that time of seizure of the clothes were not even aware of the involvement of the accused in the present case. It may be noted that in the endorsement made on the complaint Ex. PW 9/A there is no mention that the accused was found admitted in the hospital and that his clothes were seized in DD No.31A dated 04.12.2016 as PW-9 had mentioned in his complaint Ex. PW 9/A that the accused was the assailant who had injured his brother / deceased. In the said endorsement PW-31 mentioned that from the allegations made in the statement by PW-9 Dinesh Sharma offence under Section 307 IPC is made out and that FIR be Sessions Case No.293/2018 Page 53/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC registered and the complaint was sent through PW-26 Constable Dhirender to the police station for registration of FIR. If PW-26 Constable Dhirender had already left for the registration of FIR, then there was no occasion for the seizure of the clothes vide memo Ex. PW 26/A in DD No. 31A dated 04.12.2016 in his presence AND if the clothes were seized before PW-26 had left the hospital with the rukka, then the said fact should have been mentioned in the rukka itself and then there was no occasion for the arrest of the accused on the pointing out of any secret informer on the next day i.e. 05.12.2016 at 8:00 AM from near Coal Depot, Anand Parvat.
16.9. PW-26 Constable Dhirender in his testimony in chief has categorically stated that the nail clipping, blood sample and clothes of accused were seized before he left for the police station with rukka. The said testimony is reproduced as under:-
"Before going to the police station with rukka, in the hospital accused Ravinder was also present in the hospital and the examining doctor had taken the nail clipping, blood sample and blood stained clothes of Sessions Case No.293/2018 Page 54/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC accused Ravinder. The said articles were given by the said doctor in sealed condition. ASI Braham Swaroop seized the said sealed articles vide seizure memo Ex.
PW 26/A bearing my signature at point A."
16.10. From the testimony of the said witness, it becomes absolutely clear that the statement of complainant PW-9 Dinesh was recorded by ASI Braham Swaroop upon which he made endorsement (rukka) and before the rukka was sent to the police station through this witness (PW-26), the nail clipping, blood sample and blood stained clothes of accused Ravinder were seized vide memo Ex. PW 26/A and the only reason as to why the said exhibits were sealed by the examining doctor and seized by PW-31, in the opinion of the court is the fact that at the time of said seizure vide memo Ex. PW 26/A, PW-26 and PW-31 were aware that the accused Ravinder was the same person whom PW-9 Dinesh has mentioned as the assailant in his complaint Ex. PW 9/A. If in the opinion of the said police officials, accused Ravinder at that point of time had no connection with DD No.31A dated 04.12.2016 (with respect to the injuries to the deceased), then the said police Sessions Case No.293/2018 Page 55/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC officials would not have seized the nail clipping, blood sample and blood stained clothes of accused in DD No.31A dated 04.12.2016 vide memo Ex. PW 26/A. 16.11. From the evidence of PW-26 and PW-31 it seems that the said police officials were aware of the involvement of accused in the offence under Section 307 IPC at the time of seizure of the aforesaid article vide memo Ex. PW 26/A and for reasons best known to the said police officials despite the said knowledge the accused was not arrested in the hospital, rather he shown to have been arrested subsequently on the pointing out of secret informer. 16.12. At this stage, the court would like to refer to question No.27 in the statement under Section 313 Cr. P.C. of the accused, in which the accused has specifically stated "........I was apprehended by the police after my discharge in the hospital". In answer to question No.50, the accused reiterated that "I was taken to the police station Anand Parvat from the hospital by the police officials." 16.13. From the evidence that has come on record it seems that accused is truly stating in his statement under Section 313 Cr. P.C. that he was apprehended upon his discharge Sessions Case No.293/2018 Page 56/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC from the hospital itself and that he was not arrested from near Coal Depot, Anand Parvat, which fact is in line with the seizure memo Ex. PW 26/A. 16.14. However, as the investigating agency has very carelessly seized the nail clippings, blood samples and clothes of the accused vide memo Ex. PW 26/A under DD No. 31A dated 04.12.2016 despite being aware of the involvement of the accused at the time of said seizure, hence, because of the faulty investigation the seizure memo Ex. PW 26/A, which do not bear signature of Doctor Prem Kishore, can not be strongly relied upon. 16.15. In order to prove that the clothes which were seized vide memo Ex. PW 26/A were the same clothes which the accused was wearing at the time of commission of offence, the prosecution relied upon the statement of brother of deceased i.e. PW-9 Dinesh Sharma, who in his statement dated 20.03.2018 identified the clothes of the accused as Ex. P-9B. As regards the said identification, the witness was asked in his cross-examination as to whether he had stated the description of the clothes in his statement dated 04.12.2016 Ex. PW 9/A and he admitted that he had not Sessions Case No.293/2018 Page 57/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC mentioned the description of clothes of accused or even that of the deceased in the said statement. It may be noted that the said identification of clothes by the brother of the deceased is to be seen in light of another fact that the prosecution did not show the said clothes to PW-11 Deepak and PW-12 Suraj who had also seen the accused on the date of incident and who could have easily identified the seized clothes to be that of Ravinder. However, it seems that the said clothes were not shown to PW-11 Deepak and PW-12 Suraj because the prosecution apprehended that the said witnesses may not be able to identify the said clothes, whereas, the possibility of such identification by the brother of deceased, being the aggrieved party in the present matter was comparatively high. Thus, the identification of the clothes of accused Ravinder as Ex. P-9B in his testimony without there being any testimony with respect to description of the said clothes can not be relied of as proof of the fact that the said clothes are of accused Ravinder.
16.16. Lastly coming to the opinion given by PW-29 L. Babyto Devi, Assistant Director (Biology), FSL, Delhi she in Sessions Case No.293/2018 Page 58/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC her report Ex. PW 29/A has categorically mentioned that in Parcel No.3 bearing the seal of LHMC SSK HOSPITAL CMO N.DELHI, one jeans pant and shirt having brown stains found which were exhibited as Ex. 3a and Ex. 3b and from the same mixed DNA profile was generated. The said mixed DNA profile was compared with the DNA profile generated from the blood in gauze of deceased i.e. Exhibit 10 and the same was accounted in the mixed DNA profile generated from the source of Exhibits 3a and 3b. Thus, as per the said report the blood of the deceased was found on the clothes Exhibit 3a and 3b, but there is no opinion as to whether the said clothes Exhibits 3a and 3b were also having the blood of the accused, as found in his nail clipping Exhibit 1 and in the blood sample vile Exhibit 2. It has not been mentioned in the report Ex. PW 29/A that the DNA profile generated from source from Exhibit 3a and 3b is similar with the DNA profile generated from the source of Exhibit 1 and 2. Therefore, from the report Ex. PW 29/A, it can not be said the clothes Exhibit 3a and 3b which were subsequently exhibited as Ex. P9B in the testimony of PW-9 were the clothes of the accused as they Sessions Case No.293/2018 Page 59/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC had blood stains of blood of the accused on the same. Accordingly, Fact No.6 can not be said to have proved beyond reasonable doubt and the reason for the same is primarily the faulty and casual investigation.
17. Injuries caused to deceased and medical opinion (Fact-7):-
17.1. The injured was taken to Lady Harding Medical College Hospital by PCR Van and in the MLC Ex. PW 16/A, the examining doctor Dr. Prem Kishore, mentioned the medical status of injured / deceased as under:-
"Unconscious OE- Severaly lacerated whole scalp with swelling over face and nose with active bleeding difficulty in breathing."
17.2. Even in the death summary Ex. PW 7/B the injuries as mentioned as:-
"Multiple lacerated wounds over head."
17.3. PW-7 Dr. Raj and PW-16 Dr. Nidhi who proved the death summary (Ex. PW 7/B) and MLC (Ex. PW 16/A) of the deceased were not cross examined by learned defence counsel, despite opportunity being given and the injuries as Sessions Case No.293/2018 Page 60/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC mentioned in MLC therefore stands proved. The same is further corroborated by the testimonies of PW-5 Dr. Gaurav Kumar and PW-10 Dr. Bimlesh Thakur, who proved the observations regarding medical conditions of the deceased made on the back side of MLC (Ex. PW 16/A) as Ex. PW 5/A and Ex. PW 10/A respectively.
17.4. The injuries received by the deceased have been mentioned at length in the postmortem report Ex. PW 17/A. Total 14 injuries have been reported in the postmortem report as under:-
"EXTERNAL INJURIES:-
Right temporal parietal and occipital area was shaved off completely.
a) Lacerated wound of size 2.8 cm x 1.2 cm x bone deep present over Right parietal area of scalp, 7cm lateral to midline and 9 cm above the tragus of Right ear. On dissection, underlying soft tissue were ecchymosed, the margins of the wound are found irregular. On exploration, curvilinear fracture of length 9 cm involving right temporal and occipital bone is seen with extravasation of blood in surrounding tissue. On opening of the skull, extra dural haemorrhage is seen over Right Parieto-occipito and temporal regions. The dura mater was found lacerated below the fractured Sessions Case No.293/2018 Page 61/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC bone, thick layer of sub-dural haemorrhage is found over parietal temporal and occipital lobe of Right cerebral hemisphere. This layer of sub-arachnoid haemorrhage is found over both occipital lobe of cerebral hemisphere. On removal of brain matter and dura, the middle cranial fossa of skull shows a linear fracture (Hinge) involving both right and left with extravasation of blood in surrounding tissue
b) Lacerated wound of size 1.0 cm x 0.5 cm x bone deep present over right parietal area 1 cm below the centre of 1st wound as explained above on further dissection, the underlying tissue were found ecchymosed.
c) Lacerated wound of size 2.0 cm x 1.0 cm x bone deep present over right occipital area of scalp 1.5 cm lateral and 0.5 cm below the centre of 1st wound as explained above. On further dissection, the underlying tissue are found ecchymosed.
d) Lacerated wound of size 1 cm x 0.3 cm x muscle deep present over right occipital area of scalp 1.5 cm below the 3rd wound as explained above on further dissection, the underlying tissue are found ecchymosed.
e) Lacerated wound of size 1.5 cm x 1.5 cm x bond deep present over right temporal region of scalp, 5cm below the centre of 1st wound and 2.5 cm above the right mastoid process on further dissection, the underlying tissue are found ecchymosed.
f) Lacerated wound of size 1.5 cm x 1.5 cm x bone deep present over right occipital area of scalp, 5 cm below Sessions Case No.293/2018 Page 62/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC and 2 cm medial to 1st wound and 4.5 cm above the right mastoid process. On further dissection, the underlying tissue are found ecchymosed.
g) Lacerated wound of size 3 cm x 1 cm x bond deep.
Vertically placed is present over occipital area of right side of scalp, 5 cm lateral to occipital protuberance and 9 cm above the right tragus.
h) Contusion, reddish in colour of size 13 cm x 9 cm is found over Right paveto, temporal and occipital area of scalp. 1 cm lateral to midline and 2 cm above the tragues of right ear.
i) Lacerated wound of size 2.5 cm x 1.5 cm x muscle deep, going through and through over medial aspect of middle part of Right pinna.
j) Abraded contusion, reddish in color of size 5.5cmx5.0cm is present over right side of face 9.5cm lateral to midline and 5cm in front of tragues of Right ear.
k) Lacerated wound of size 3 cm x 1.5 cm x skin deep present over left side of forehead, just above the lateral margin of left eyebrow, and 6 cm lateral to midline on left side.
l) Linear scratch abrasion of length 6 cm x 0.3 cm size, reddish in color, obliquely placed over lateral aspect of left side of neith, 6 cm lateral to midline on left side and 8 cm below the left mastoid process.
Sessions Case No.293/2018 Page 63/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
m) Scratch abrassion of size 2.1 cm x 0.4 cm obliquely placed is seen over front of chest, 1 cm lateral to midline on right side and 2cm below the supra-sternal notch."
17.5. After mentioning the injuries in detail, the cause of death is mentioned on page 6 of the report Ex. PW 17/A as under:-
"OPINION Cause of death: Cranio-cerebral damage consequent upon blunt force impact over Head, however routine viscera has been preserved to rule out intoxicants especially alcohol. All injuries described are ante- mortem in origin."
17.6. Subsequent opinion as regards the weapon of offence (brick) and the injuries was also obtained from PW- 17, who gave the said opinion as Ex. PW 17/C and Ex. PW 17/D. PW-17 opined in Ex. PW 17/C that " the injuries described in postmortem report No.756/2016 dated 05.12.2016 could be produced by this or similar type of weapons."
17.7. PW-17 Dr. Sachin Mittal reiterated the opinion given by him in Ex. PW 17/A and Ex. PW 17/C in his examination in chief.
Sessions Case No.293/2018 Page 64/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC 17.8. The said witness was recalled for cross examination on application under Section 311 Cr. P.C. moved on behalf of accused and in his cross examination dated 10.10.2018, he testified as under:-
"Q. I put it to you that the 14 injuries on the person of the deceased can not be caused by a single person, unless the victim is held by one or two more persons? Ans. I can not answer this question specifically, as if a person is intoxicated or has been made unconscious by hitting on head can be overpowered by a single person. It is wrong to suggest that I am deposing falsely in this regard.
Q. Whether the injuries on the face and skull as such, it may cause instant death?
Ans. It could be possible in case of sever damage when a person may die instantaneously if the injury has involved vital centers present in brain. Vol. In this case the deceased has survived post incident for a period of about two hours. He has been brought to emergency department of LHMC and Smt. S.K. Hospital in gasping stage and has been attended by the doctor present in emergency due to which efforts were put by them to save the life. In the absence of such medical intervention, might be possible that the deceased could not have survive even for two hours.Sessions Case No.293/2018 Page 65/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC Q. whether a person after receiving the injuries as reported by you can go into coma?
Ans. Possibility of a person suffering sever damage to cranio cerberal region loosing consciousness and subsequently going into coma can not be ruled out and in this particular case the person was brought unconscious to the emergency department for LHMC & Smt. S.K. Hospital.
I have seen FSL report of VISCERA of the deceased, which is now exhibited as Ex. PW 17/X, as per which on chemical microscopic and TLC examination, metallic poisons, ethyl, methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits.
It is correct that there is no injury on the limbs as per my report."
17.9. In his cross examination there is no suggestion that the injuries mentioned in postmortem report Ex. PW 17/A could not be caused by the brick, with respect to which he gave subsequent opinion Ex. PW 17/C. 17.10. It was suggested to PW-17 that the injuries mentioned in Ex. PW 17/A could not have been caused by a single person, unless the victim is held by one or two more persons. However, as per PW-17 the said injuries could have been caused by single person if the injured was Sessions Case No.293/2018 Page 66/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC intoxicated or had lost consciousness upon being hit on the head.
17.11. Therefore, from the testimonies of PW-5, PW-7, PW- 10, PW-16 and PW-17, the court can conclude without doubt that the deceased expired on 05.12.2016 at 12:15 AM because of the cranio cerebral damage consequent upon blunt force impact over head as a result of the injuries mentioned in the postmortem report Ex. PW 17/A and that the said injuries are consistent with the weapon of offence i.e. the brick Ex. P-27 B.
18. Conclusion 18.1. Before concluding, the court would like to deal with the arguments of learned defence counsel that the FIR of the present case was not sent to the learned Area MM, which is a serious lapse on the part of the investigating agency.
In this regard, the court relies upon Punjab Police Rules and the relevant rule is reproduced as under:
24.5 First Information Report Register.
(1) * * *
Sessions Case No.293/2018 Page 67/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
The original copy shall be a permanent record in the police station. The other three copies shall be submitted as follows:
(a) One to the Superintendent of Police or other gazetted officer nominated by him.
(b) One to the Magistrate empowered to take cognizance of the offence as is required by Section 157, Criminal Procedure Code. In murder cases, the following procedure shall be followed: -
(i) The F.I.R. shall be sent to the Magistrate concerned immediately in his Court during Court hours and at his residence thereafter.
(ii) In case the Magistrate concerned is out of station, the F.I.R. shall be submitted to the Duty Magistrate.
(iii) If the Magistrate is not available after Court hours, the copy of the F.I.R. shall be left at his house by the messenger noting the date and hour of delivery on the cover with the contents.
(iv) If on account of difficulties of communication or other causes the delivery is delayed, the reasons and delay shall be noted on the cover.
(v) As soon as F.I.R. is received by a Magistrate he shall affix his initials therefore and note thereon the date and hour at which the report has been received by him. In the case of a delayed F.I.R. if he disagrees with the reasons given by the Police Officer for such delay, he shall also give his own reason for the same, if any.Sessions Case No.293/2018 Page 68/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC 18.2. As per the aforesaid rule the FIR is to be sent to learned Area MM only in murder cases and as the present case was registered under Section 307 IPC, hence, the fact that the same was not sent to the learned Area MM can not be said to be violation of the aforesaid rule. 18.3. From the aforesaid discussion, in the opinion of the court the prosecution has successfully proved the following circumstantial facts:-
a) The fact that altercation/scuffle took place between the accused and the deceased prior to the incident on the same day, during which the deceased had slapped the accused, which is the motive behind the offence.
b) The fact that dying declaration made by deceased to his brother PW-9 Dinesh Sharma while he was being shifted in PCR to Lady Harding Hospital.
c) The fact that accused was present at the spot where deceased was found in injured condition by PW-9 Dinesh Sharma.
d) The fact that accused Ravinder ran away from the spot on seeing PW-9 Dinesh Sharma.Sessions Case No.293/2018 Page 69/71
State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC
e) The fact that injuries were received by accused Ravinder on the date of incident, which he failed to explain.
f) The fact that the injuries were caused to the deceased, on his head by blunt object that is the brick because of which he expired.
18.4. From the aforesaid proved facts, it can be inferred without doubt that it was the accused and none else who in view of the altercation / quarrel with the deceased and offended by the slap given by the deceased, had murdered the deceased by hitting his head with bricks with the intention of causing sever head injuries which he knew to be likely to cause death and which otherwise is sufficient in the ordinary course of nature to cause death. 18.5. Thus, the prosecution has proved that it was the accused, who committed murder of the deceased and as such all the ingredients to make out offence under Section 302 IPC stand proved and the accused is liable to be convicted for offence under Section 302 IPC.
19. Conviction Order Sessions Case No.293/2018 Page 70/71 State Vs Ravinder FIR No.525/2016 PS Anand Parbat U/s 302 IPC 19.1. In view of the aforesaid discussion, accused Ravinder son of Sh. Chandra Shekhar Giri is held guilty for commission of offence of murder of deceased Deepak son of Sh. Satish Chand, punishable under section 302 IPC and the accused is convicted under Section 302 IPC 19.2. Let the convict be heard on the quantum of sentence.
SAURABH PARTAP Digitally signed by
(Pronounced in the open SINGH LALER
SAURABH PARTAP
SINGH LALER
Court on 05.02.2019) (S.P.S Laler)
Additional Sessions Judge (Pilot Court) West:Court No. 33: Tis Hazari Courts Delhi Sessions Case No.293/2018 Page 71/71