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Delhi District Court

State vs . (1) Manish Sharma on 3 November, 2012

 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­
                II (NORTH­WEST): ROHINI COURTS: DELHI


Session Case No. 73/2011
Unique Case ID No.: 02404R0395612007

State                      Vs.               (1)       Manish Sharma
                                                       S/o Sh. Suresh Chand Sharma
                                                       R/o WZ 1031, Ram Mandir,
                                                       Rani Bagh, Saraswati Vihar,
                                                       Delhi

                                             (2)       Prashant Bhaskar @ Rinku
                                                       S/o Late Suresh Kumar Bhaskar
                                                       R/o WZ 847, Rani Bagh,
                                                       Gali No.2, Delhi
                                                       (Discharged)


FIR No.:                                     765/2006
Police Station:                              Saraswati Vihar
Under Sections:                              302/201/34 Indian Penal Code

Date of committal to Session Court: 14.08.2007

Date on which orders were reserved: 8.10.2012

Date on which judgment pronounced: 17.10.2012


JUDGMENT:

(1) As per the allegations of the prosecution on 5.4.2006 at about 10:15 PM near House No. 1031, Rani Bagh Ram Mandir, Delhi the accused Manish Sharma in furtherance of his common intention with co­accused St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 1 Prashant Bhaskar (discharged) and Mahesh Sharma (since expired) committed the murder of Dayanand S/o Pushkar Raj by beating him with fist and kicks.

BRIEF FACTS/ CASE OF THE PROSECUTION:

(2) The case of the prosecution is that on 6.4.2006 at about 9:30 AM a call was received at Police Station Saraswati Vihar from PCR that Dr. Harish Bhatia went to see a patient at House No. 1827, Rani Bagh, Multani Mohalla and neighbours suspected that the patient had died in a quarrel.

Pursuant to the said information DD No. 16 was recorded which was marked to ASI Rohtash who along with Ct. Resham Singh reached the said house where the deceased Dayanand was lying on the first floor of the house. Inquiries were made from the family members of the deceased during which ASI Rohtash came to know that the deceased Dayanand had gone to discuss about the committee money and a scuffle took place between Dayanand on one side and Pujari of Ram Mandir namely Mahesh and Kalu on the other side after which Dayanand was brought back to the house and medically treated since he was feeling uneasiness and thereafter he came back to his house and slept on the floor of the house and in the next morning he was found dead. Matter was reported to the police and the dead body was sent to Mortuary of BJRM Hospital where its postmortem examination was got conducted.

St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 2 (3) On 10.7.2006 the father of the deceased Dayanand namely Pushkar Raj gave a written complaint to the police where he had alleged that he had put a committee with one Mahesh Sharama who was the Pujari of Ram Mandir, Rani Bagh and on 5.4.2006 at about 7:45 PM he (Pushkar Raj) along with his elder son Dayanand, younger son Vipin and worker of his shop namely Ram Baran went to the house of Mahesh Sharma for taking the payment of the committee. According to Pushkar Raj, Mahesh Sharma asked them to come at 8:30 PM and when they again went to the house of Mahesh Sharma at about 8:30 PM Mahesh Sharma was not found present at his house due to which reason they waited for Mahesh Sharma. At about 10:15 PM Mahesh Sharma came and told them that he had no money on which initially there was a verbal altercation but thereafter Mahesh Sharma started beating Dayanand and when his (Pushkar Raj's) younger son Vipin tried to intervene, then Manish Sharma the brother of Mahesh Sharma along with Rinku came down from the first floor and gave beatings to Vipin and forced him to run away. While Mahesh Sharma kept Pushkar Raj engaged in talking, in the meanwhile Manish Sharma and Rinku gave severe beatings to Dayanand with legs and fists blows after which they came back to their home. After ten minutes of reaching home, Dayanand complained of burning sensation in his chest on which they (Pushkar Raj) took him to nearby Nursing Home where doctors gave an injection and medicines to Dayanand and thereafter Pushkar Raj left Dayanand to his house. On the next day morning at about 8:30 AM the St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 3 wife of Dayanand noticed that there was no movement in the body of Dayanand on which she called up Pushkar Raj over telephone. Pushkar Raj reached the house of Dayanand and called Dr. Harish Bhatia who after examining Dayanand declared him dead. Pushkar Raj had alleged that his son Dayanand had expired on account of the beatings given by Mahesh Sharma, Manish Sharma and Rinku.

(4) On the basis of the said complaint of Pushkar Raj, the present FIR was got registered. After completion of investigations charge sheet was filed against the accused Manish Sharma and Prashant Bhaskar @ Riku. Vide order dated 22.9.2009 the accused Prashant Bhaskar @ Rinku was discharged by Hon'ble Ms. Justice Gita Mittal. Initially the accused Manish Sharma absconded and on 31.8.2007 he was declared Proclaimed Offender but on 7.4.2010 the accused Manish Sharma was arrested and the trial qua him commenced.

CHARGE:

(5) Charges under Sections 302/34 Indian Penal Code were settled against the accused Manish Sharma to which he pleaded not guilty and claimed trial.

EVIDENCE:

(6) In order to prove its case the prosecution has examined as many as Twenty Four witnesses as under:

St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 4

Public/ eye witnesses:

(7) PW1 Pushkar Raj is the father of the deceased and is the eye witness to the incident. He has deposed that in April 2006, he was living at house no.1792, Multani Mohalla, Rani Bagh, Delhi and his son Dayanand and his family were living at H. No.1827, Multani Mohalla, Rani Bagh, Delhi. According to the witness, he had started a committee with Mahesh Sharma, R/o 1031, Ram Mandir, Rani Bagh, Delhi and on 05.04.06, he along with his son Dayanand, Vipin and his employee Ram Baran went to the house of Mahesh Sharma to collect the payment of committee at about 7.45 PM. The witness has further deposed that they were asked by Mahesh Sharma to come at 8.30 PM and accordingly when they went at about 8.30 PM at the house of Mahesh Sharma, he had not met them and they waited for him till 10.15 PM. According to the witness, he came at about 10.15 PM and told them that he had no money for giving them, on which his son Dayanand asked him why he was not having money. He has testified that thereafter Mahesh Sharma started beating his son Dayanand and when his another son Vipin tried to save Dayanand, Manish Sharma son of Mahesh Sharma came downstairs along with Rinku and both of them gave beatings to his son Vipin and forced him to run away. The witness has also deposed that Mahesh Sharma engaged him (Pushkar Raj) in talking and in the meantime, Manish Sharma and Rinku gave beatings to his son Dayanand with leg and fists. Thereafter they returned to their house and his son Dayanand after ten minutes complained to him about burning sensation in St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 5 his chest due to which reason he took him to nearby Nursing Home and Doctor gave him injection and some medicines. The witness has testified that he took the medicines and after taking the same, he left him at his house with his wife and he went to sleep and thereafter, he returned to his house. According to him, in the morning at about 8.30 PM when his (Dayanand's) wife saw there was no movement in the body of Dayanand and she called him from his house. The witness has also deposed that he called a doctor and his son was declared dead by Dr.Harish Bhatia who also informed the police. He has proved that his statement was recorded by the police on 06.04.06 which is Ex.PW1/A but no FIR was registered on his statement. The witness has further deposed that he identified the dead body of his son Dayanand in the mortuary of BJRM Hospital and on 07.04.06, the dead body was handed over to him after the postmortem. He has further deposed that thereafter on 10.07.2006 police again recorded his statement which is Ex.PW1/B. He has also deposed that on 11.07.2006, he pointed out the place of occurrence to the police on which the police prepared the site plan at his instance. He has correctly identified the accused Manish Sharma in the Court.

(8) In his cross examination, the witness has deposed that police recorded his statement on 06.04.2007 at the house of deceased Dayanand at about 10:00 AM but he does not remember the exact time. He has further deposed that he is not aware if police also recorded statements of other persons. According to the witness, he had not told to the police in his St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 6 statement that his employee was also with him, however, when confronted with his statement Ex.PW1/A the said fact was not found recorded. He has deposed that he had not told to the police in his statement that on 01.04.2006 the draw of the committee was announced in his name. The witness has testified that he was asked to collect money on 05.04.2006 at about 8:00 PM and they reached there at about 7:45 PM to collect the money. He has also deposed that he had not visited the house of the accused Manish in between 01.04.2006 upto 7:45 PM of 05.04.2006 nor did he tell to the police in his statement that they reached at about 7:45 PM; that they reached to the house of the accused at 10:30 PM on 05.04.2006 but when confronted with statement Ex.PW1/A the said fact was found recorded. The witness has further deposed that he had not told to the police that Manish and Rinku came there from the stairs and has voluntarily stated that Manish alone came there from the stairs. He does not remember if he stated in his examination in chief that Mahesh and Rinku came there from the stairs. According to the witness, the committee was in his name and not in the name of his son Dayanand but he has no documentary proof regarding the committee membership and has voluntarily added that other members could tell about the committee running by the accused persons. He has also deposed that many public persons gathered when the present incident was going on and has voluntarily stated that he is not aware of their names. He does not remember if he told to the police in his statement that many public persons St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 7 had gathered at the time of incident. However, when confronted with his statement Ex.PW1/A it was not found recorded that public persons had gathered there. The witness has testified that he had not told to the police that a small altercation had taken place "halki hata pai mere ladke Dayanand se Mahesh aur Kalu se rupey lene ke babat hui thi" but when confronted with statement Ex.PW1/A the aforesaid was found so recorded. He has also deposed that he had not told to the police in his statement that he had no suspicion on anybody "muje kisi par koi shak suba nahi hai". However, when confronted with statement Ex.PW1/A where was found so recorded. The witness has testified that they removed his son Dayanand to his house after the incident and when they went to the doctor then again they went to the house of Dayanand, he left him in his house and went to his house and at that time his brother Radhey Shyam was also with him. He has clarified that after the incident he along with Dayanand and Vipin came to his house after which Dayanand was taken to the doctor and was left to his house and in all the way deceased Dayanand was with them on foot. He does not remember if police also recorded his other statements and has explained that he was a patient of paralysis and paralytic attack was still on his person. He has also deposed that after the incident Vipin also accompanied to his house and they started taking dinner and in the meantime Dayanand asked him about the problem on his chest, on which he along with Radhey Shyam and Dayanand went to the doctor whereas Vipin remained at his house and was taking dinner. The witness has St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 8 further deposed that when they reached at about 7:45 PM to the house of the accused, at that time Vipin was not with them and they talked to the Mahesh Sharma who asked them to wait because he was busy in a marriage and thereafter he is unable to tell exactly whether Mahesh came there at about 9:45 PM or 10 PM. He has also deposed that Vipin reached there at about 9:30­9:45 PM and during the time of incident Vipin was also present there and had not run away from the spot. He has denied the suggestion that his son Vipin had run away from the spot. According to the witness, Dayanand was residing at first floor and after taking the medicine Dayanand went to his room on foot through stairs. He has denied the suggestion that he was having dispute with Mahesh and accused Manish and Rinku were not present at the spot and further denied that after the death of Mahesh, he wrongly named accused Manish. He has also denied the suggestion that Manish was planted in this case and that no quarrel took place between Manish and his deceased son Dayanand.

(9) PW2 Smt. Deepika is the wife of the deceased who has deposed that her husband Dayanand, her father in law Pushkar Raj and her devar Vipin were running a sweet shop under the name and style of Prabhu Nath Sweet at Rani Bagh, Delhi in the year 2006. She has further deposed that on 05.04.06, her husband Dayanand along with her devar Vipin and father in law went to Ram Mandir in Rani Bagh for collecting the payment of committee from Pujari Mahesh Sharma where some verbal altercation and quarrel took place and at about 12 night, her husband was left at her house St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 9 by her father in law and Sh. Radhey Shyam maternal uncle of her husband who told her about the verbal altercation and the quarrel at Ram Mandir. The witness has further deposed that her husband removed his shirt and laid down on the floor and at that time she saw marks on his chest and there were also swelling on his cheeks and he was sweating heavily. She has deposed that she asked him the reason but he did not anything to her and she remained with her husband till 1:00 AM after which she went to sleep. According to her, she woke up in the morning at about 7 AM and when she touched her husband, she saw that there was no movement in his body. The witness has also deposed that she raised noise and called her in laws and her father in law called the doctor who declared her husband dead. She has also deposed that on 06.04.2006, police recorded her statement which is Ex.PW2/A and her statement was again recorded on 11.07.2006. The witness has also deposed that she also gave the alleged history to the doctor at the time of postmortem.

(10) During her cross examination, the witness has admitted that she was not a eye witness to the incident and states that her husband was brought to his house after taking the medicine from the doctor by her father in law Pushkar and his brother Radhey Shyam. She has further deposed that her husband was disturbed and told her that he wanted to collect the money of the committee and the persons who arrange the committee had not given the money. She is not aware whether the committee was in the name of her husband or her father in law. According to the witness, her St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 10 family was living separately from her father in law and Vipin, her devar had not visited in her house in between 7:45 PM of 05.04.2006 till the death of her husband. The witness has also deposed that on the day of death of her husband police came to her house and she was disturbed due to death of her husband. PW2 has further deposed that her statement was recorded by the police after many days but she does not remember the date. She has also deposed that she had not told to the police in her statement that her husband was taken to Manna clinic by her father in law and devar Vipin but when confronted with her statement Ex.PW2/A wherein it was so recorded and has voluntarily explained that that since she had not visited the clinic then how she is unable to tell about the name of the clinic and as to who accompanied her husband. The witness has further deposed that she was not a eye witness therefore she had not told to the police in her statement that "mere pati ko Mahesh aur Kalu se rupey lene ke babat kaha suni hui thi aur halki hata pai hui thi". However, when confronted with statement Ex.PW2/A the said fact was found recorded. The witness has also deposed that she is not aware the amount of the committee and has voluntarily stated that her husband had not told about the amount of the committee. She has denied the suggestion that she has deposed at the instance of the Investigating Officer.

(11) PW14 Vipin Mittal is the brother of the deceased Dayanand and has deposed that on 05.04.2006 he along with his father, their karigar Ram Baran and his elder brother Dayanand had gone to take the money of St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 11 committee from Mahesh Sharma at about 8:30 PM at Ram Mandir where Mahesh Sharma was working as priest. According to the witness, at that time Mahesh Sharma was not there and they waited for him and at about 10:15 PM he (Mahesh) along with his friend Rinku had come there on which they asked money of committee from Mahesh Sharma but he refused to give money. He has testified that that when his brother Dayanand asked him as to why he was not having the money, some altercation started and at that time both Mahesh Sharma and Rinku were under the influence of liquor and they both started beating his brother Dayanand. The witness has further deposed that at the same time the brother of Mahesh Sharma namely Manish Sharma @ Kallu reached there from the upper floor. He has voluntarily explained that two brothers i.e accused Mahesh Sharma and Manish were residing in the premises of Mandir. According to him, the accused Mahesh Sharma, Manish and Rinku started beating his brother Dayanand with fist blows and kicks and he (witness) tried to intervene but he was scared due to which he ran towards his house. He has testified that within ten minutes he came back at the spot again and saw that his father was pleading with folding hands before the accused persons by saying "chor do chor do". He has further deposed that some public persons also collected there and all of them requested them to go back and matter would be seen in the morning as both the accused Rinku, Mahesh were under the influence of liquor but has voluntarily stated that St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 12 he was not aware if Manish was having liquor or not. He has also deposed that thereafter they brought his brother Sh. Dayanand to their house and his brother Dayanand was complaining of pain in his chest. The witness has further testified that he was very scared and his father and his chacha Radhey Shyam took his brother to nearby nursing home namely Manna Nursing Home and his father informed him that doctor had given Dayanand one injection and medicine after which his brother was left at his residence i.e. House No. 1827, Multani Mohalla with his wife after giving her the schedule of medicines. The witness has further deposed that on the next morning at about 8:00 AM he opened his sweet shop situated at WZ­1971, Multani Mohalla, Rani Bagh and at about 9:00 AM some person informed him that his brother had expired and when he reached the house of his brother, he found his other family members already present there. He has also deposed that his father informed him that when Deepika Bhabi got up at about 8:30 AM she informed his father about the death and his father called the doctor Harish Bhatia who declared his brother dead. The witness has testified that the death of his brother had occurred due to the incident of beatings given by the accused persons in the last night and his brother was beaten by the accused persons mercilessly. He has also deposed that he ran away from the spot as he became scared because of giving beatings and the name of Rinku was Prashant Bhaskar as per his knowledge. He has further deposed that the accused Prashant Bhaskar @ Rinku was arrested by the police vide memo Ex.PW13/A and his personal St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 13 search was conducted vide memo Ex.PW13/B. He has correctly identified the accused Manish Sharma in the Court.

(12) In his cross examination, the witness has deposed that his statement was recorded by the Investigating Officer once or twice and his first statement was recorded on the next day i.e. on 06.04.2006 but he does not remember the date when his subsequent statement was recorded. He is unable to tell after how many days his subsequent statement was recorded. He has denied the suggestion that his subsequent statement was recorded after about one year or more than one year. The witness has deposed that he does not remember whether the fact that at the time of incident he ran to his house, was mentioned in his statement Ex.PW13/PX1. According to him, they reached the spot at about 8:30 PM and after the incident they came back to their house at about 11:00 PM and they had gone to the spot only once and has voluntarily stated that prior to the day of the incident they had been visiting the residence of the accused regularly for the money of committee and on the day of incident prior to 8:30 PM he had not gone to the residence of accused for the demand of money of committee. He has testified that he had told the Investigating Officer in his statement statement recorded on 06.04.2006 that when he had gone to the residence of accused their karigar (worker) namely Ram Baran also accompanied them. However, when confronted with his statement dated 06.04.2006 which is Ex.PW13/PX2 the said fact was not so recorded. After reading his statement Ex.PW13/PX1 the witness has admitted that the fact that his St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 14 karigar also accompanied him to the residence of accused is mentioned. He has also admitted that this fact is mentioned in the statement recorded on 11.07.2006 and not in the statement recorded on 06.04.2006. He has deposed that he had stated in his statement that public persons also collected at the spot recorded on 06.04.2006 but when confronted with Ex.PW13/PX2 this fact was not mentioned and has voluntarily added that he had stated this fact to the Investigating Officer but he is not aware if the same had been mentioned by the Investigating Officer in his said statement. The witness has also admitted that he had stated in his statement recorded on 06.04.2006 that they reached at the spot at about 8:30 PM but when confronted with his statement Ex.PW13/PX2 where this fact was not mentioned and has voluntarily stated that this fact was mentioned in his statement recorded on 11.07.2006. He has denied the suggestion that he had stated in his statement recorded on 06.04.2006 that they had not suspicion against any person regarding death of his brother. He has denied the suggestion that they had not raised any suspicion against accused Prashant Bhaskar @ Rinku in his statement recorded on 06.04.2006. When confronted with his statement Ex.PW13/PX2 where this fact is not mentioned. He has also deposed that he had told the police that some public persons had also gathered at the spot and has voluntarily stated that they were all neighbours and he does not remember their names. He has further deposed that he had told the police that he had got scared and returned to his house and that his father and chacha had taken his brother to St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 15 Manna Clinic and has voluntarily stated that he is not aware what the Investigating Officer had written in his statement on 06.04.2006 and in fact he had mentioned all these facts but he is not aware why the said facts had not been mentioned. He has also deposed that he does not recollect if he had told the police that the accused had come to the spot in an intoxicated state and has voluntarily stated that he was very perplexed at that time. According to him, he had not told the police that at 10:30 PM the accused Mahesh Kumar came at the residence of Rinku and has voluntarily stated that he had told the police that Mahesh had gone to his own house. However, when confronted with his statement Ex.PW13/PX1 it was found mentioned that "apne ghar apne sathi Rinku ke ghar aya" on which the witness has explained that he had told the Investigating Officer that he had gone to his own house with Rinu " apne ghar apne sathi Rinku ke sath aya". He has further deposed that he had not seen the doctor giving the medicine to his brother since he was not with his brother at that time. According to him, the distance between the place of incident and the doctor clinic is near about 50 meters and at that time when his brother was taken to the doctor his father and chacha were with him and has voluntarily stated that he (deceased) was having a difficulty in walking. He has admitted that his brother had walked from the ground floor till the residence on the first floor and thereafter to the clinic of the doctor and has voluntarily stated that he (Dayanand) was walking with great difficulty. PW14 Vipin has further deposed that when his brother returned from the doctor he was not St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 16 aware if he was speaking or not because it was his father who left him to his room and he was not there at that time. He has denied the suggestion that he had inserted the names of Prashant and accused Manish later on only because of their personal enmity which was done with a malafide intention. The witness has deposed that the police recorded his statement at the house of his brother on 06.04.2006 but he does not recollect in respect of the second statement dated 13.07.2006. He has testified that Manish Sharma was not apprehended in his presence and he does not recollect if any personal search of Manish was done in his presence. He has voluntarily stated that he had signed some papers whose contents he does not remember. The witness has deposed that the police had not recorded any statement of the neighbours or any other persons who had gathered at the spot at the time of the incident in his presence. According to him, the police had taken him to the spot of the incident where the quarrel had taken place on two­three occasions after the date of the incident and first of all they had taken him to the spot on the very next date of the incident. He has also deposed that thereafter within a week/ fifteen days they again took him to the spot on one or two occasions. The witness has further deposed that the police had not prepared any documents during the subsequent visits to the spot and he does not recollect who exactly had recorded his statement but in so far as he remember there was one police official by the name of Rohtash, others he does not recollect. He has denied the suggestion that no proceedings were conducted in his presence St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 17 or that he was not even present at the time of the incident and he had been deliberately shown as a witness by the Investigating Officer. The witness has denied the suggestion that Manish and Rinku were not present at the time of the incident and the quarrel had actually taken place between Mahesh and Daya Ram.

(13) PW15 Monty has deposed that in the month of April, 2006, he was residing with his parents at 1792, Rani Bagh on rent and his brother Dayanand along with his family was residing at house No. 1827, Multani Mohalla, Rani Bagh. According to the witness, in the intervening night of 05/06.04.2006 he was busy in a bhandara and on on 06.04.2006 at about 9:45 AM, he received information on phone that his brother Dayanand expired on which he reached there and made inquiries from his relatives. The witness has also deposed that his brother Dayanand was removed to the hospital and doctor declared him dead. According to him, he also went to the hospital and identified the dead body of his brother vide memo Ex.PW15/A. He has further deposed that after postmortem dead body was received vide memo Ex.PW15/B and police recorded his statement. This witness has not been cross­examined by the Ld. Defence Counsel despite opportunity in this regard.

Medical witnesses:

(14) PW9 Dr. Meenakshi Sidhar has deposed that in the year 2006 she was working as HOD, Pathology in the BSA hospital and the samples St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 18 of this case were received in their office duly sealed. She has proved having examined the samples with regard to deceased Dayanand S/o Pushkar Raj aged about 30 years vide PM report No. 292/06 and has given her detailed report vide Ex.PW9/A. She has produced the Histopathology register of the year 2006 having entries vide serial No. 398­1222 of the year 2006 and the copy of relevant entry No. 803/06 of this register is Ex.PW9/B. (15) In her cross examination, the witness has deposed that she cannot give the date when the samples were received in their office and when she gave the opinion. She has stated that as per record the report was received by the police official on 17.05.2006. She is unable to give the name of the official who took the aforesaid report. She has admitted that her aforesaid report does not bears the date of its preparation. The witness has deposed that she is unable to tell the details of the seal impression by which the samples were sealed when their office received the same nor can she produce any document to show whether the samples were sealed or not.

According to her, the name of technician was Divya who handed over the said report to the police officials and as per record the name of Divya was not mentioned in the report. She has denied the suggestion that she had not examined any sample in this case or that her aforesaid report is a fabricated document.

(16) PW10 Dr. Basant Malhotra has deposed that she is running a clinic in the name of Manna Clinic and Maternity Home at WZ­1367, Rani St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 19 Bagh, Delhi­34. According to her, on 05.04.2006 he examined the patient Dayanand at about 11:30 PM with alleged history of burning in the chest and a small scratch under the neck. She has deposed that the patient was comfortable when they went and he drank Limca and went walking. She has proved the prescription slip of the patient which is Ex.PW10/A bearing his signatures and the seal of his hospital at point A. (17) In her cross examination, the witness has deposed that she give the name of attendant who brought the patient and has voluntarily deposed that it was her neighbour who brought the patient at her nursing home. She has further deposed that the patient was normal at that time and was having some gastric problem and having some scratches near ear on the neck. The witness has also deposed that whatever medicines she had mentioned in the prescription she had given to the patient and the injection she had mentioned in the prescription slip. She has further deposed that the patient remained in his clinic hardly for about five minutes. (18) PW11 Dr. Harish Bhatia has deposed that he was running a clinic in the name of Harish Bhatia and on 06.04.2006 he was called at House No. 1827, Multani Mohalla, Rani Bagh at about 8:30 AM where he found dead body lying and he examined the dead body on the request of some relative of deceased and he found that the person was lying dead. He has proved that his statement was recorded by the Investigating Officer under Section 161 Cr. P.C. He has not been cross­examined by the Ld. Defence Counsel despite opportunity in this regard and his testimony has St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 20 gone uncontroverted.

(19) PW12 Dr. P.C. Dixit and PW13 Dr. N.K. Aggarwal have deposed that pursuant to the request received from Deputy Secretary Home, Govt. of NCT Delhi vide letter No. 10/C­30/2006/HP­II/5971 ds homeII/ 546 dated 08.09.2006 for constituting the medical board, a medical board was constituted to review the postmortem report in respect of deceased Dayanand R/o House No. 1827, Multani Mohalla, Rani Bagh, Delhi. According to the witnesses, Dr. P.C. Dixit was the Chairman of the Board whereas Dr. N.K. Aggarwal Professor & HOD Forensic Medicine UCMS/GTBH and Dr. Mukta Rani, Junior Specialist Forensic Medicine LBSH were the member of the board. They have testified that after examining the postmortem report No.292/06 dated 07.04.2006 of BJRM hospital; FSL report No. 2006/C­1470 dated 26.06.2006; histopathology report of BSA hospital, Rohini and the photographs already Ex.PW6/A­1 to Ex.PW6/A­7 the board has given the observation and the opinion vide detailed report Ex.PW12/A which report was forwarded to the Investigating Officer through proper channel.

(20) In his cross examination Dr. P.C. Dixit has deposed that the Board has given its opinion on the basis of postmortem report and other relevant records. According to the witness, they had not seen the dead body and states that the points on which the medical board differed with the findings on the Postmortem Doctor are mentioned on Ex.PW12/A. Dr. N.K. Aggarwal (PW13) has nor been cross­examined by the Ld. Defence St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 21 Counsel despite opportunity in this regard.

Forensic Witness:

(21) PW20 Sh. Srinarain has deposed that on dated 04.05.2006 one sealed wooden box was received in the office of FSL, Rohini which was marked to him for chemical examination and on opening of the parcel it was found to contain Ex.1A, 1B and 1C and on chemical examination of the abovesaid exhibits he could not find any common poison. He has proved his detailed report in this regard which is Ex.PW20/A. He has not been cross­examined by the Ld. Defence Counsel for the accused and hence his testimony has gone uncontroverted.

Police/ official witnesses:

(22) PW3 ASI Madan Goutam is a formal witness being the Crime Team Incharge who has been examined by way of affidavit Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 6.4.2006 he inspected the scene of crime at House No. 1827 Multani Mohalla, Rani Bagh, Delhi where the dead body of Dayanand was lying. He has further deposed that no chance print was found there. He has not been cross­examined by the Ld. Defence Counsel and his testimony has gone uncontroverted.

(23) PW4 ASI Ashok Kumar is also a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW4/1 (as St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 22 per the provisions of Section 296 Cr.P.C.). He has deposed that on 7.4.2006 ASI Rohtash deposited one Viscera Box with sample seal and one bottle containing brain, lungs, heart, lever spleen and kidney pieces duly sealed with the seal of FMT BJRM HOSPITAL DELHI with sample seal pursuant to which he made entry in Register No.19 copy of which is Ex.PW4/A. According to him, on 18.4.2006 he handed over the aforesaid sealed exhibit sealed with the seal of BJRM HOSPITAL to Ct. Amardeep vide RC No. 74/21/06 copy of which is Ex.PW4/B. The witness has deposed that on 4.5.2006 he handed over the viscera box to ASI Rohtash vide RC No. 92/21/06 dated 4.05.2006 copy of which is Ex.PW4/C. He has proved that when the exhibits remained in his possession the same remained intact. He has not been cross­examined by the Ld. Defence Counsel and his testimony has gone uncontroverted.

(24) PW5 ASI Braham Prakash is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 10.7.2006 at about 11:35 PM he received a rukka from SI Yashpal for registration of case under Section 302/34 IPC pursuant to which he registered the present FIR copy of which is Ex.PW5/A and made his endorsement on the rukka which is Ex.PW5/B. He has proved that the copy of FIR and original rukka were handed over to Inspector Dharamvir Singh for further necessary investigations. He has not been cross­examined St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 23 by the Ld. Defence Counsel and his testimony has gone uncontroverted. (25) PW6 Ct. Dalbir Singh is a formal witness being the Photographer of Crime Team who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 6.4.2006 he took seven photographs of the scene of crime at House No. 1827, Multani Mohalla, Rani Bagh, Delhi which photographs are Ex.PW6/A­1 to Ex.PW6/A­7 and negatives of the same are collectively Ex.PW6/B. He has not been cross­examined by the Ld. Defence Counsel and his testimony has gone uncontroverted.

(26) PW7 SI M. D. Meena is also a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 6.4.2006 he along with ASI Madan Gautam (Finger Print Expert) and Ct. Dalbir Singh (Photographer) inspected the scene of crime between 10:30 AM to 11:15 AM at House No. 1827 First Floor, Multani Mohalla, Rani Bagh. According to the witness, dead body of Dayanand was lying there and there was an injury mark below chin but no other external injury mark was found. He has proved having prepared his detailed report which is Ex.PW7/A. The witness has testified that Ct. Dalbir took the photographs and no change prints were lifted from the spot. (27) In his cross examination, the witness has deposed that he found one injury on the chin only. He has denied the suggestion that he had not St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 24 found any injury on the chin or that he had given the false affidavit regarding injury at the instance of the Investigating Officer. (28) PW8 SI Manohar Lal is also a formal witness being the Droughts Man who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 12.6.2007 he inspected the scene of crime at 1827, Multani Mohalla, Rani Bagh, Delhi on the pointing out of the complainant and noted the dimensions and other details on a paper. He has proved having prepared the scaled site plan in his office which is Ex.PW8/A after which he destroyed the rough papers. He has further deposed that on 12.06.07, he took measurements and rough notes of the place of incident at Shri Ram Mandir, Rani Bagh, Delhi at the instance of complainant Pushkar Raj and prepared the scaled site plan Ex.PW8/B on the basis of the same on 13.06.07 which he handed over to the Investigating Officer and thereafter, he destroyed the rough notes and measurements.

(29) In his cross examination, the witness has deposed that on 12.06.2007, he visited the place of incident Ram Mandir at about 3:00 PM and Investigating Officer Insp. Dharmvir and complainant Pushkar Raj were present with him at that time. He does not remember whether SI Rohtash and Vipin Mittal were with them or not at that time nor does he remember the number of persons with him at that time. He has testified that he took the measurements and rough notes of Mandir and had not entered the Mandir. According to him, he had not noticed whether there St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 25 were residential houses just adjoining the Mandir. He has also deposed that he reached the Mandir on two wheeler scooter with the Investigating Officer but he is not aware about the ownership of that two wheeler. He has also deposed that he remained at the spot for about 1 - 1½ hour but he is not aware whether Mahesh and Manish were present in the Mandir or not. He has denied the suggestion that he had not visited the spot or that he had not taken any rough notes and measurements of the spot. He has further denied the suggestion that he had prepared the scaled site plan at the instance of the Investigating Officer at the police station. (30) PW16 HC Harkesh has deposed that on 10.07.2006 he was posted at police station Saraswati Vihar and on that day duty officer handed over copies of FIR for delivering the same to the Ld. Area magistrate and senior officers of the police. According to the witness, he being the Special Messenger left the police station in the intervening night of 10/11.07.2006 and delivered the same to the residence of Ld. Area magistrate, Joint Commissioner of Police and Deputy Commissioner of Police. He has not been cross­examined by the Ld. Defence Counsel despite opportunity in this regard and his testimony has gone uncontroverted.

(31) PW17 ASI Susheel Kumar has deposed that on 31.08.2007 Ld. MM Sh. A.K. Chaturvedi declared the accused Manish Sharma as Proclaimed Offender and he tried to search the accused. He has further deposed that on 07.04.2010 accused Manish Sharma was arrested on the St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 26 information of the Monty Mittal, brother of the deceased Dayanand from near Britannia chowk and also informed him (witness) about the fact that the accused was already declared Proclaimed Offender. He has further deposed that the accused was arrested vide memo Ex.PW17/A under Section 41.1(c) Cr.P.C. and his personal search was conducted vide memo Ex.PW17/A1. The witness has proved that he got recorded DD No. 33A in this respect copy of which DD is Ex.PW17/B and prepared a kalandra Ex.PW17/C and accused was medically examined from Bhagwan Mahavir Hospital. According to him, accused was produced before the Court and sent in judicial custody. He has correctly identified the accused Manish Sharma in the Court.

(32) In his cross examination, the witness has deposed that prior to arrest of the accused, he was having information about the declaration of proclaimed offender of the accused which information was with him three to four months prior to his arrest. According to him, he was present at Britannia Chowk in uniform and on seeing him being a police official, Monty Mittal came to him and informed him about the presence of the accused. He has also deposed that he was not known to Monty Mittal prior to the date of the arrest of the accused. The witness has testified that Monty Mittal had not shown him any documentary proof regarding the accused as proclaimed offender and he was having information through Proclaimed Offender register kept in the police station. According to the witness, he did writing work at the place of arrest of the accused. He has St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 27 denied the suggestion that accused was lifted from his house and has been falsely shown as arrested U/s 41.1 (c) Cr. P.C. (33) PW18 Ct. Shiv Kant has deposed that on 08.04.2010 accused Manish Sharma (correctly identified by the witness) was in the lock up of police station Saraswati Vihar as already arrested on 07.04.2010 as Proclaimed Offender. He has further deposed that he took the accused out and produced before the SHO who made inquiries from the accused, thereafter the accused was produced before the Hon'ble court and sent to the judicial custody. He has not been cross­examined by the Ld. Defence Counsel for the accused and hence his testimony has gone uncontroverted. (34) PW19 Insp. Yashpal Singh has deposed that on 10.07.2006 he was posted as Sub Inspector/ Incharge Police Post Rani Bagh, Police Station Saraswati Vihar and on that day a complaint was received from Pushkar Raj and investigations in this regard was already under going vide DD No. 16 PP dated 06.04.2006. He has further deposed that he perused all the documents in respect of investigations conducted by ASI Rohtash and prepared rukka Ex.PW19/A and handed over to duty officer with request to depute some senior officer for further investigations. (35) In his cross examination, the witness has deposed that he had seen the postmortem report before making the endorsement for registration of the case. He has denied the suggestion that this case has been wrongly registered and further denied that after seeing the complaint Ex.PW1/B as well as the opinion of the doctor regarding cause of death no case under St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 28 Section 302 IPC was made out.

(36) PW21 HC Suresh has deposed that on 06.04.2006 he was posted at Police Post Rani Bagh of Police Station Saraswati Vihar and was on duty as DD writer from 8.00 AM to 8.00 PM and on that day at about 9.30 AM he received a call from Police Control Room of District North West that Dr. Harish Bhatia went to see a patient at house no. 1827, Rani Bagh, Multani Mohalla and neighbours suspected that patient was died in quarrel. According to the witness, he recorded DD No. 16 which is Ex.PW21/A and handed over to same to ASI Rohtash for further proceedings and also informed Incharge of Police Post about this information. He has also proved the original DD No. 16 photocopy of the same is which is Ex.PW21/B. (37) PW22 SI Rohtash has deposed that on 06.04.2006 he was posted at Police Post Rani Bagh of Police Station Saraswati Vihar and on that day he was on emergency duty and at about 9.15 AM when he received a DD No.16 PP Rani Bagh and thereafter Ct. Resham Singh reached at House No. 1827, Multani Mohalla, Rani Bagh, Delhi where he found the deceased Dayanand lying on the 1st floor of the house. The witness has deposed that he immediately called crime team at the spot and they conducted their proceedings and photographer of crime team took photographs. He has further deposed that he inspected the dead body but he had not found any external injury. He has proved having examined Pushkar Raj, Deepika, Vipin, father, wife and brother of the deceased St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 29 respectively but he had not recorded their statements. He has also deposed that the above said persons informed that the at the evening time on 05.06.2006 deceased Dayanand had gone to discuss about the committee money and a scuffle took place between deceased Dayanand with Pujari of Ram Mandir namely Mahesh and Kalu and thereafter deceased Dayanand was brought at the house and he was feeling uneasiness after which he (Dayanand) was medically treated and was brought to the house and thereafter the deceased Dayanand slept on the floor of the house at 11.00­11.30 PM and on the next morning he was found dead. According to the witness, thereafter the dead body was sent to BJRM Hospital Mortuary for postmortem and he filled the inquest form which is Ex.PW22/A and prepared the brief facts Ex.PW22/B. He has further deposed that he recorded the statement of Monti vide Ex.PW15/A and also recorded statement of Pushkar Raj regarding identification of dead body. He has testified that after postmortem, Doctor handed over viscera and exhibits of the deceased in the sealed condition with the seal of FMT BJRM Hospital and sample seal to him which he seized vide seizure memo Ex.PW22/C and Ex.PW22/D respectively and he deposited the same in malkhana and exhibits lungs etc. of the deceased were sent to the BSA Hospital pathology through Ct. Amarjeet on 18.04.2006. He has also deposed that on 04.05.2006 he took the viscera of the deceased to FSL Rohini and same was deposited there and Pathology result and FSL result were received by him which he handed over to Chowki Incharge SI Yashpal. The witness St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 30 has further deposed that on 11.07.2006 Inspector Dharambir prepared the site plan at his instance and Pushkar Raj was also present at that time and after postmortem dead body was handed over to father of deceased. (38) Leading questions were put to the witness to the witness about the documents prepared by the witness during the proceedings conducted by him. The witness has admitted that he recorded the statements of witnesses Deepika vide Ex.PW2/A; statement of Pushkar Raj which is Ex.PW1/A and the statement of Vipin Mittal which is Ex.PW22/E. He has further deposed that he made an application to Mortuary Incharge BJRM Hospital to preserve the dead body for postmortem vide application Ex.PW22/F. He has also admitted that he had recorded the statement of Radhey Shyam regarding the identification of dead body vide Ex.PW22/G and further admitted that he made a DD No.30 dated 06.04.2006 after his arrival at Police Station copy of which is Ex.PW22/H. The witness has further admitted that on 07.04.2006 he made his arrival DD at Police Station vide DD No.24 which is Ex.PW22/I and further admitted that due to lapse of time he does not recollect these proceedings. (39) In his cross examination, the witness has deposed that the statements Ex.PW2/A, Ex.PW1/A and Ex.PW22/E were not in his handwriting and states that the same was got recorded by him through some police official on his dictations but he does not remember the name of the said police official. He has further deposed that the abovesaid St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 31 statements were recorded by him in the house of the deceased but he does not remember whether crime team officials and the SHO had reached at the spot by that time. According to him, the said statements were recorded at about 12 noon and whatever the aforesaid persons stated to him, he recorded the same. He has admitted that Pushkar Raj had not suspected anyone and he stated so in his statement. The witness has testified that during his proceedings he had not found any public person who had seen the incident and Pushkar Raj had not given any statement to him in which he had stated that the public persons gathered at the spot when the incident took place. He has also deposed that he had not visited the spot when the actual alleged incident took place and Vipin, Deepika and Pushkar Raj had not informed him that any other public person was present at the time of incident. The witness has further deposed that Pushkar Raj had not informed him that his servant Ram Bharan was with him when the actual incident took place at Ram Mandir and the abovesaid persons told him that the deceased had gone to Ram Mandir in the last evening but they had not specified the exact time. According to him, the Investigating Officer had not recorded the statement of any public witness i.e. Pushkar Raj, Vipin and Deepika in his presence on 11.07.2006. He has testified that the family members of the deceased had not moved any application for postmortem. The witness has also deposed that he had no personal knowledge about the alleged quarrel and he came to know about the same only through the above said witnesses and he is not aware how the alleged incident took St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 32 place on 05.04.2006.

(40) PW23 Inspector Dharambir Singh has deposed that on 10.07.2006 he was posted at Police Station Saraswati Vihar as Additional SHO and investigation of this case was marked to him. He has proved having recorded the statement of police officials and also recorded statement of Deepika, Pushkar Raj, Vipin and ASI Rohtash. He has further deposed that on 11.07.2006 he inspected the place of incident at Mandir Rani Bagh where the quarrel took place and prepared the site plan at the instance of Pushkar Raj and ASI Rohtash which site plan is Ex.PW23/A. The witness has proved having inspected the site where the dead body of the deceased was found and prepared the site plan at the instance of Pushkar Raj and ASI Rohtash vide Ex.PW23/B. He has further deposed that on his request medical board was constituted for expert opinion and SHO Police Station Saraswati Vihar moved an application which is Ex.PW23/C bearing the signatures of inspector Giri Raj at point A pursuant to which a Medical Board was constituted who gave their opinion vide Ex.PW12/A. The witness has stated that he arrested the accused Prashant Bhaskar (who is already discharged) and searched for the accused Manish Sharma but he could not be arrested and process under Section 82/83 Cr.P.C. were issued against him after which he was declared as Proclaimed Offender. He has also proved that during investigations he recorded statement of witnesses and after completion of investigation, he submitted the charge­sheet against the accused Prashant Bhaskar. St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 33 (41) In his cross examination, the witness has deposed that he does not remember about the police official who had accompanied with him at the time when he recorded the statement of Vipin, Deepika and Pushkar Raj. According to the witness, he recorded the statements of these witnesses on 11.07.2006 and also recorded the statement of ASI Rohtash on 11.07.2006 separately but ASI Rohtash was not present when he recorded statement of Vipin, Deepika and Puskhar Raj. He has further deposed that he does not remember whether he firstly recorded statement of ASI Rohtash or of these witnesses. The witness has testified that after receiving the file he came to know that ASI Rohtash had also recorded the statement of Deepika, Vipin and Puskhar Raj under Section 161 Cr.P.C. on 06.04.2006 during his proceedings. He has deposed that Deepika, Vipin and Pushkar Raj had not mentioned in their statements about recording of their statements earlier by ASI Rohtash. According to the witness, during his investigation he came to know that two­three persons were also present at Ram Mandir at the time of incident but he could not find the said persons for recording of their statements. He is unable to tell the name of those two­three persons and had not mentioned about these two­three persons in his police report under Section 173 Cr.P.C. The witness has also deposed that he is not aware whether the said two­three persons were nearby residents or just passersby. He has admitted that accused Mahesh (since expired) was residing in the complex of Ram Mandir. He has further deposed that during his investigation he came to know that accused Manish St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 34 was also residing in Ram Mandir complex and during his investigation, he came to know that accused Mahesh (since expired) and accused Manish were present at the spot and during the quarrel accused Parshant (discharged) also reached there. He has testified that the complainant Pushkar Raj and deceased Dayanand had gone to Ram Mandir on 05.06.2006 first time at 5:00 - 6:00 PM and when Mahesh was not found, they returned back and again at about 8.00­9.00 PM both again went to Ram Mandir. The witness has further deposed that he is not aware whether Manish was present at the first time at about 5:00 - 6:00 PM when the complainant and deceased reached at Ram Mandir nor can he tell whether Vipin had reached at Ram Mandir when the quarrel was going on nor if there were other persons apart from Pushkar Raj, Dayanand and Vipin also present at the spot. He has deposed that during the course of the investigation they had not come to know of the presence of any person namely Ram Bharan an employee of Pushkar Raj at the spot. He has denied the suggestion that accused Manish was not present at the place of incident at the time of incident or that he had not conducted the investigation fairly. He has also denied the suggestion that for ulterior motive he forced the complainant to make the statement against the accused persons. (42) PW24 Inspector Parveen Kumar has deposed that on 08.04.2010 he was posted at Police Station Sarswati Vihar and on that day, the further investigation of this case was handed over to him. According to the witness, one accused Manish Sharma who was previously Proclaimed St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 35 Offender had been arrested by HC Susheel. He has testified that he took out the accused from the lockup of police station Saraswati Vihar vide DD No.12A Ex.PW24/A at 8:30 AM and took him to his office where he interrogated the accused in the presence of Ct. Shiv Kant who was having physical custody of the accused and thereafter, he formally arrested Manish Sharma vide memo Ex.PW24/B. The witness has also deposed that he thereafter recorded the disclosure statement of the accused vide Ex.PW24/C after which the accused was produced before the Ld. Illaka Magistrate on the same day. He has proved having recorded the statements of various witnesses and thereafter having prepared the supplementary charge sheet and filed the same in the Court. He has correctly identified the accused Manish Sharma in the Court.

(43) In his cross examination, the witness has deposed that when he interrogated the accused apart from Ct. Shiv Kant a public witness Monty was also present. He has admitted that Monty was the brother of the deceased. He has denied the suggestion that the accused Manish had not made any disclosure statement or that he recorded the disclosure statement of the accused of his own at the instance of the brother of the deceased. He has further denied the suggestion that accused Manish was made to sign blank papers which were converted into memos later on or that the documents of arrest and disclosure were prepared later on where the signatures of Monty were taken.

St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 36 STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:

(44) After completion of the prosecution evidence, the statement of the accused Manish Sharma was recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to the accused which he has denied. According to the accused, he is not aware whether any scuffle took place between the deceased and the Pujari Mahesh Sharma since he was not present at the spot and was residing in a tenanted premises at House No. 75/33, near Bhardwaj Chowk, Village Shakurpur, Delhi. He has stated that the deceased or his family was not having any committee transactions with him. The accused has further stated that from the very beginning Inspector Dharamvir Singh was having ulterior motive against him, his brother and the doctor who had conducted the postmortem of the deceased which was not supporting the prosecution case and hence the Investigating Officer requested for a Medical Board to get a favourable report. He has also stated that he is innocent and has been falsely implicated in this case after lifting him from his house. According to him, the first statements of the witnesses were recorded on 6.4.2006 and the second statements were recorded on 11.7.2006 which are totally contradictory to each other and the witnesses have improved their earlier statements at the instance of the Investigating Officer who was having ulterior motive against him and his family. The accused Manish Sharma has stated that he did not commit any offence and he was not present at the spot nor he was residing at Ram Mandir.

St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 37 (45) However, the accused has preferred not to lead any evidence in his defence.

FINDINGS:

(46) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the evidence on record and the written memorandum of arguments filed by the parties. My findings are as under:

Identity of the accused:

(47) In so far as the identity of the accused Manish Sharma is concerned, there is no dispute to the same. He was previously known to the complainant even prior to the incident. The accused Manish Sharma has been specifically named in the FIR and also identified by the family member of the deceased in the Court. In view of the above, I hereby hold that the identity of the accused Manish Sharma stands established.

Manish Sharma was residing in the same house as that of Mahesh Sharma:

(48) The case of the prosecution is that the accused Manish Sharma is the younger brother of Mahesh Sharma the Priest of Rama Mandir, Rani Bagh and both were residing in the same premises at the time of the incident and hence, it is in this background that when there was an altercation between Mahesh Sharma and the deceased Dayanand, the accused Manish Sharma who was residing in the same premises also joined St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 38 Mahesh Sharma in giving leg and fists blows to the deceased. The accused has denied that he was residing with Mahesh Sharma at the time of the incident. According to him, he was residing separately in House No. 75/33, Near Bhardwaj Chowk, Village Shakurpur, Delhi. (49) The prosecution in support of its case has placed its reliance on the testimony of Pushkar Raj the father of the deceased, Vipin Mittal the brother of the deceased and also the Investigating Officers and other police officers who had joined the investigations of the case. The accused on his part has not led any evidence to prove that he was residing in House No. 75/33, Near Bhardwaj Chowk, Village Shakurpur, Delhi at the time of the incident nor he has placed on record any documents to substantiate his claim.

(50) I have considered the rival submissions and I am not inclined to agree with the version given by the accused. Rather, the version given by the prosecution appears to be more credible and reliable. Had the accused Manish Sharma been residing else where (i.e. House No. 75/33, near Bhardwaj Chowk, Village Shakurpur, Delhi as claimed by him) I am sure he would have provided the details of the landlord of the said premises and examined him in the court or at least placed on record some material in the form of rent agreement, receipts, electricity/ water bills or any other postal communications or if nothing else, some witness from the area would have come to prove this aspect, which is not the case. Rather, on the contrary the testimony of Pushkar Raj and Vipin Mittal is very categorical on this St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 39 aspect and even the police witnesses who had joined the investigations have corroborated their version to the extent that the accused Manish Sharma was a resident of Rama Mandir, Rani Bagh. Assuming for a moment that Manish Sharma was residing separately from Mahesh Sharma, yet there is no dispute with regard to the fact that he is the real brother of Mahesh Sharma and his presence at the spot at the time of the incident cannot be doubted or else there was no reason why he would have been named by Pushkar Raj in his first statement to the police Ex.PW1/A on the same day when the death of deceased took place. It has been explained that Manish Sharma is also known as Kalu and Pushkar Raj in his statement Ex.PW1/A has named both Mahesh Sharma (expired) and Kalu i.e. the accused Manish Sharma whom he has identified in the Court as the person who had given leg and fists blows to his son and there is no reason to doubt his version. In view of the above, I hereby hold that it stands established that at the time of the incident the accused Manish Sharma was residing in the same premises i.e. Rama Mandir, Rani Bagh along with his brother Mahesh Sharma (expired) and was present when the altercation took place.

Medical evidence/ cause of death:

(51) The case of the prosecution is that on 5.4.2006 the complainant Pushkar Raj along with his son Dayanand (deceased), other son Vipin and one worker namely Ram Baran had gone to the house of Mahesh Sharma who was the Priest of Ram Mandir to collect the money of the committee St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 40 where there was an altercation followed by a scuffle. In the meanwhile, the accused Manish Sharma and his friend Rinku (discharged) came downstairs and started beating Dayanand giving him legs and fists blows.

Thereafter the complainant Pushkar Raj along with his son Dayanand returned to their house and within ten minutes Dayanand complained of burning sensation in his chest on which he was taken by Pushkar Raj to a nearby clinic where Dayanand was given an injection and some medicines. Thereafter Dayanand went his house and slept and in the morning he was found having died in sleep.

(52) PW10 Dr. Basant Malhotra has proved having examined Dayanand on 5.4.2006 at about 11:30 PM who had come to her clinic i.e. in Manna Clinic and Maternity Home at Rani Bagh, Delhi with a history of burning of chest and a small scratch under the neck. She has proved that the deceased Dayanand had drank a Limca and went back walking. She has proved her prescription slip which is Ex.PW10/A. She has further explained that one attendant had brought the patient and it was her (doctor's) neighbour who had brought the patient to the Nursing Home and according to her, the patient (deceased) was normal at that time and had scratches near the ear. She has also proved that whatever medicines he had given to the patient/ deceased along with the injection (i.e. Injection Emestat & Rantac; Tab. Ciprofloxacin, Ibubrufene and Rantac) which finds a mention in the prescription slip and has explained that the patient hardly remained in the Nursing Home for five minutes.

St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 41 (53) PW11 Dr. Harish Bhatia has only proved the deceased of the deceased on 6.45.2006. He has deposed that he was called at House No. 1827, Multani Mohalla, Rani Bagh at about 8:30 AM where he found the dead body lying and on examining the dead body on the request of some relative of deceased, he found the person was dead.

(54) The postmortem of the deceased was conducted by Dr. Anil Shandil whose report is also present as an annexure to the report of the Medical Board. Dr. Anil Shandil had given the following opinion (which opinion however did not find favour with the Medical Board):

a) Cause of death is Asphyxia consequent to smothering by other party.

b) Other injuries of head, brain, face, ear are resultant of struggle by the victim.

c) All injuries are antemortem in nature.

d) Smothering is sufficient to cause death in ordinary course of nature.

(55) Not being satisfied by the said report, the Investigating Agency had moved for constitution of the Medical Board for purposes of opinion with regard to the cause of death of the deceased. Pursuant to the said request of the Investigating Agency, the GNCT of Delhi constituted a Medical Board comprising of Dr. N.K. Aggarwal, Professor & HOD, Member UCMS & GTB Hospital and Dr. Mukta Rani, Jr. Specialist, Member, LBS Hospital headed by Dr. P.C. Dixit, Medical Superintendent, St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 42 AAAGH who after examining the postmortem report No. 292/06 dated 7.4.2006 of BJRM Hospital; FSL Report No. 2006/ C­1470 dated 26.6.2006; histopathology report of BSA Hospital and the photographs which are Ex.PW6/A­1 to Ex.PW6/A­7 the Board had given their detail observations vide report Ex.PW12/A which has been duly proved by them in the Court. I may observe that in the said report, the Medical Board has trashed the opinion given by Dr. Anil Shandil in his postmortem report dated 7.4.2006. The Members of the Medical Board have proved their report. The relevant portion of the observations and opinion given by the Members of the Medical Board are reproduced as under:

"...... After going through the PM Report No. 292/06 dated 7.4.2006 of BJRM Hospital; FSL Report No. 2006/ C­1470 dated 26.6.2006 and histopathology report of BSA Hospital, Rohini and photographs no. 1 to 7, the board's observations and opinion is as follows:

i. It is very surprising that the postmortem report is written in both Hindi and English.

ii. Injury No.2 mentioned in the postmortem report does not tally with photographs No. 4,5,6 and 7. iii. The opinion mentioned in the postmortem report 'postmortem findings are consistent with ante mortem inflicted injures over hear and face from St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 43 blunt force impact is already suggestive of cause of death due to head injury.

iv. The injury seen in photograph no. 6 & 7 that is an abrasion over upper front of neck in the middle has not been mentioned anywhere in the postmortem report.

v. Its quite uncommon to smother an adult person unless the victim is under the influence of Alcohol/ Drugs. But the chemical analysis report No. FSL 2006/C­1470 dated 26.6.2006 of FSL Rohini rules out common poisons such as metallic poison, ethyl and methyl alcohol, cyanide, Phosphide, alkaloids, tranquilizers and insecticides, in the viscera and blood sample sent for analysis. In these circumstances there is bound to have some defence wounds over the body which are absent in the present case.

vi. There are no histopathological findings suggestive of Asphyxia and the histopatology report of Dr. Baba Saheb Ambedkar Hospital reported by pathologist also mentions the opinion as 'Findings suggestive some toxic St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 44 injury? Drug toxicity? Poisoning causing acute tubular necrosis. Presence of granulomatous hepatitis is an incidental finding.

vii. Treatment papers in the inquest papers mentions of giving injection. However, postmortem report does not mention any injection marks.

viii. As per the PM Report though there is mention of presence of head injury by blunt force impact still the doctor conducting autopsy did not give the cause of death, but deferred it till the viscera analysis and histopathological examination reports are obtained. However, viscera analysis gave negative tests for common poisonings and the histopathological findings are suggestive of some toxic injury? Drug toxicity? Poisoning. Again the doctor, conducting autopsy gave the final opinion as cause of death is Asphyxia consequent to smothering by other party even though there is no clear cut evidence to that effect. Thus it seems that the cause of death is an after thought.

St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 45 ix. There are clear cut findings of head injury in this case which have already been mentioned by the doctor conducting autopsy.

OPINION: After going through the inquest papers, photographs, PM Report, FSL Report, Histopathology Report, the board is of the opinion that the death is due to head injury consequent upon the blunt force impact......"

(56) Dr. P.C. Dixit and Dr. N.K. Aggarwal (i.e. chairman and member of the Medical Board) have also proved the signatures of Dr. Mukta Rani (Member) and have in their testimony corroborated each other. They have proved their opinion that the death of the deceased was due to head injury consequent upon the blunt force impact and disagreed with the earlier findings of the Autopsy Surgeon (Dr. Anil Shandil) to the effect that the cause of death was Asphyxia consequent to smothering by other party and that the injuries of head, brain, face, ear were resultant of struggle by the victim all of which are antemortem in nature or that smothering was sufficient to cause death in ordinary course of nature. (57) The Medical Board have junked the above report of the Autopsy surgeon (Dr. Anil Shandil) and rightly so. After having gone through the report of the Autopsy Surgeon and the observations and opinion of the Medical Board it is evident that on the one hand the entire report of the Autopsy Surgeon appears to have been swayed by the St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 46 background of quarrel given to him which he has mentioned in the said report whereas on the other hand the opinion of the Medical Board is based upon the specific reports of Histopathology, postmortem and the photographs which findings find independent corroboration not only from the testimony of Dr. Basant Malhotra (PW10) but also from the photographs placed on record by the Crime Team particularly the photographs Ex.PW6/A­4, PW6/A­5 and Ex.PW6/A­7. Dr. Basant Malhotra in her deposition before this Court has specifically testified that when the patient came to her, he hardly stayed for five minutes and had only complained of burning sensation in his chest and she herself noticed a small scratch under his neck. She has explained that the patient walked back from her Nursing Home and she does not state that he had any difficulty in walking or that she noticed any other abnormality with him. Had this been a case of smothering as opined by Dr. Anil Shandil, I am sure that the patient Dayanand would never have reached the Nursing Home of Dr. Basant Malhotra and would have expired at the spot of the incident itself, which is neither the case of the prosecution nor alleged. Rather, it is even admitted by Pushkar Raj (complainant) that the deceased had walked to the Nursing Home of Dr. Basant Malhotra and even returned to his house on foot and thereafter went to sleep in his room. This aspect also finds due corroboration from the testimony of the wife of the deceased namely Deepika (PW2) which is very categorical in this regard. St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 47 (58) Further, the Pathological Report Ex.PW9/A which has been duly proved by Dr. Meenakshi Sidhar (PW9) confirms the findings of the Medical Board which reflect that on microscopic examination of the liver there were confluent areas of necrosis with surrounding paeerchyme showing mono­nuclear cell infiltrate predominantly lymphocytes and presence of epithelocl cell granulomous. Cut Section of the Kidney shows area of hemorrhage and on microscopic examination unidespricod tubular necrosis with preserved vascular and tubular was present and interstitium shows hemorrhage. Further, area of necrosis was seen on microscopic examination of Brain. Dr. Meenakshi Sidhar has stated that the impression suggests some toxic injury? Drug Toxicity?? Poisoning and presence of which according to her was an incidental finding. The Medical Board has accepted her report and agreed with her to the extent that the presence of granulomatous Hepatitis was an incidental finding. (59) It is further evident from the material placed on record that the photographs of the dead body was taken by the Crime Team at the house of the deceased which photographs Ex.PW6/A­4, PW6/A­5 and Ex.PW6/A­7 show the presence of dried blood from the nose and from the side of the mouth. Presence of dried blood on the peripheral surface of nose on the side of lips (right side) confirm an internal hemorrhage to the victim as a result of which the death followed after a few hours. Further, the abrasions on the upper side of the chin as noticed by the Medical Board and also St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 48 evident from the photographs confirm the allegations of the prosecution that a scuffle had taken place in which the deceased Dayanand had received these injuries on account of blunt force impact which blunt force according to Pushkar Raj (father of the deceased) was the fist and the leg blows given by the accused Manish Sharma @ Kalu and his brother Mahesh Sharma (expired). It therefore stands proved that during the scuffle which took place between the deceased and the accused and his brother (Mahesh Sharma ­ expired), the deceased had sustained internal head injury resulting into hemorrhage which was not treated on time and led to his death within a few hours while he was in sleep. This internal hemorrhage of the brain went unnoticed so much so that when the deceased went to Dr. Basant Malhotra, he only claimed that he had burning sensation in his chest as a result of which he was given treatment for acidity bur did not inform her about the quarrel/ scuffle.

Ocular Evidence/ Presence of witness Vipin at the spot ­ Doubtful:

(60) Ocular evidence/ eye witness count is the best evidence in any case. The present case is based upon the testimonies of two witnesses i.e. Pushkar Raj/complainant (PW1) who is the father of the deceased and Vipin Mittal (PW14) brother of the deceased.

(61) At the very outset I may observe that initially the accused Manish Sharma was a Proclaimed Offender and the testimony of Pushkar Raj (PW1) was recorded in his absence. However, after his arrest Pushkar St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 49 Raj was recalled wherein he identified the accused Manish Sharma @ Kalu which identity is otherwise not disputed, the parties being known to each other prior to the incident.

(62) The case of the prosecution is that on 5.4.2006 at about 10:15 PM the complainant Pushkraj Raj along with his son Dayanand (deceased), Vipin and their employee Ram Baran went to the house of Mahesh Sharma (brother of the accused Manish Sharma) at House No. 1031, Rani Bagh Ram Mandir, Delhi for collecting the payment of committee which they were running. According to the prosecution since Mahesh Sharma was unable to pay the amount of the committee there was some altercation between Dayanand (deceased) and Mahesh Sharma (since expired) in which Mahesh Sharma (since expired) and his brother Manish Sharma @ Kalu gave fists and leg blows to Dayanand (deceased). The issue was resolved with the intervention of Pushkar Raj (father of Dayanand).

Thereafter Dayanand returned home when he complained of burning sensation in his chest. On this Pushkar Raj and his brother Radehy Shyam took Dayanand to Manna Clinic where he was given some injection and medicines after which Dayanand returned back to his house and went to sleep. In the morning he did not wake up and was discovered having died in sleep.

(63) Coming first to the statement of Pushkar Raj (PW1), I may at the very outset, observe that for the first time the statement of Pushkar Raj/ complainant was recorded by the Police on 6.4.2006 itself as soon as St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 50 Dayanand was found to have expired in his sleep which statement is Ex.PW1/A. In the said statement the complainant Pushkar Raj (PW1) specifically told the police that there was a small verbal altercation followed a hatha­pai pursuant which was resolved and they went back home but after some time Dayanand started feeling uneasy and was taken to a Doctor and provided treatment after which he went off to sleep and did not get up in the morning. He also specifically told the police that he did not suspect anybody. The said statement is reproduced as under:

"......Bayan kiya ki main pata uprokt par sahpariwar rehta hoon or Raghunath Sweets ke naam se H. No. 1971, Rani Bagh mein apne larkoon va bhai ke saath dukaan karta hoon. Kal dinank 5.4.2006 ko hame apni committee ke rupay Rama Mandir ke pujari Mahesh va Kalu se lene thai. Jo main va mere bete Dayanand va Vipin committee ke rupay lene gaye thai. Jo hum shaam 5.4.2006 ko samay karib 10:30 baje Rama Mandir gaye thai. Jahan par mere larke Dayanand ki mandir ke pujari Mahesh va Kalu se rupay lene ki babat kaha­ suni va hathapai halki si hui thi or main va mera larka Vipin, apne larke Dayanand ko lekar aa rehe thai ki mere larke Dayanand ko ghabrahat mehsoos hui jispar humne use Manna Clinic ke doctor ko dikhaya tha jisne mere larke ko ek injection lagaya va kuch goliyaan di or uske baad hum apne larke Dayanand ko uske ghar H. No. 1827 par chorkar aa gaye thai. Subah karib 9­baje mujhe pata chala ki mere larke ki mrityu ho gai hai, Mujhe kisi par shak nahin hai..."

St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 51

(64) It is writ large from the above that Pushkar Raj (PW1) had categorically named the present accused Manish Sharma @ Kalu as the brother of Mahesh Sharma who was present along with him (Mahesh Sharma) who had a hatha­pai with the deceased Dayanand. (65) Pushkar Raj in his first statement to the police has simply stated that there was a verbal altercation and a little physical altercation (halki hatha­pai), however, later after about three months of the death of his son, he improved upon his earlier statement and made specific allegations not only against Mahesh Sharma, Manish Sharma @ Kalu but also against one Rinku a friend of Manish Sharma. This Rinku has already been discharged from the present case by the order of the Hon'ble Delhi High Court dated 22.9.2009. The case of Manish Sharma @ Kalu would have been at parity with the co­accused Rinku (discharged) but for the fact that Manish Sharma @ Kalu had been specifically named by the complainant Pushkar Raj (PW1) in his first statement Ex.PW1/A which is not the case in so far as Rinku is concerned.

(66) Pushkar Raj (PW1) in this testimony before the Court has corroborated what he had told the police on 10.7.2006 i.e. three months after the incident. The relevant portion of the testimony of Pushkar Raj (PW1) in the Court, is reproduced as under:

"........ On 5.4.2006, I along with my son Daya Nand, Vipin and my employee Ram Baran went to the house of Mahesh Sharma to collect the payment of committee. We were there at about 7:45 am and were asked by him St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 52 to come at 8:30 pm. When we went at about 8:30 pm at his house, he did not meet us. We waited for him till 10:15 pm. He came at about 10:15 pm and told us that he has no money for giving us, on which my son Daya Nand asked him why he was not having money. After that Mahesh Sharma started beating my son, when my another son Vipin tried to save Daya Nand, Manish Sharma son of Mahesh Sharma came downstairs and Rinku also came with him and both of them gave beatings to my son Vipin and forced him to run away. Mahesh Sharma engaged me in talking and in the meantime, Manish Sharma and Rinku gave beatings to my son Daya Nand with leg and fists. Thereafter, we returned to our house and my son Daya Nand after 10 minutes complained to me about burning sensation in his chest, so I took him to nearby Nursing Home.

Doctor gave him injection and some medicines. He took the medicines and after taking the same, I left him at his house with his wife and he went to sleep.

Thereafter, I returned to my house. In the morning at about 8:30 pm when his wife saw, there was no movement in the body of Daya Nand. She called me from my house. I called a doctor and my son was declared dead by him. Dr. Harish Bhatia informed the police......"

(67) It is writ large from the above that for the first time a detail complaint was made to the police by Pushkar Raj after three months of the incident on 10.7.2006 wherein he made material improvements while specifying the role attributed to the accused Manish Sharma @ Kalu. No doubt, the presence of the accused Manish Sharma @ Kalu at the spot of St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 53 the incident cannot be doubted since he has been specifically named in the first statement of Pushkar Raj made to the police at the first instance but in so far as the incident itself is concerned there are material improvements. (68) At the first instance, this very witness (Pushkar Raj), had informed the police that there was a little verbal and physical altercation (kaha suni aur halki hatha pai hui thi) but later made allegations against the accused Manish Sharma of giving legs and fists blows etc. he even claims that a large number of public persons had gathered. Assuming what he has stated is correct, it is strange that not even a single witness from the area/ neighbourhood has either been cited or examined. Who were those persons who had gathered at the spot when the quarrel was taking place? What were their names? No details are forthcoming. What is more strange is the fact that despite Pushkar Raj (PW1) having named his own employee Ram Baran in his statement to the Police Ex.PW1/B as the person who had accompanied them to the house of the accused when the incident took place, this Ram Baran has neither been cited as a witness nor produced in the Court to depose in this regard. Rather, on the other hand the Investigating Officer has totally denied that Pushkar Raj had informed him regarding the presence of Ram Baran at the spot of the incident. (69) I may note that Pushkar Raj (PW1) being the father of the deceased he is clearly aggrieved by the death of his son and is thus an interested witness. His statement is therefore required to be read with due care and caution particularly keeping in view the contradictory stand taken St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 54 by him, first at the time of the death of his son when he told the police vide Ex.PW1/A that he did not suspect anybody and second after three months when he vide statement Ex.PW1/B implicated the accused and made material improvements on the aspect of events which transpired. (70) Coming next to the testimony of Vipin Mittal (PW14) who is the brother of the deceased and also claims himself to be an eye witness to the incident. I may note that in his first statement to the Police on 6.4.2006 which is Ex.PW22/E bearing his signatures at point B he does not implicate anybody. Rather, on the contrary he simply states that he has no suspicion on anybody. It is after three months of the incident that he implicates the accused Manish Sharma @ Kalu in the death of his brother vide his statement made to the police under Section 161 Cr.P.C. dated 11.7.2006 which is Ex.PW13/PX1. In his testimony before the Court he has corroborated his later statement Ex.PW13/PX1. The relevant portion of his testimony is reproduced as under:

"........ On 05.04.2006 I along with my father, our karigar Ram Bharam and my elder brother Sh. Daya Nand had gone to take the money of committee from Mahesh Sharma at about 8:30 PM at Ram Mandir where Mahesh Sharma was working as priest. At that time Mahesh Sharma was not there. We waited for him and at about 10:15 PM he along with his friend Rinku had come there. Thereafter we asked the money of committee from Mahesh Sharma but he had refused to give money. When my brother Sh. Daya Nand asked him as to why he is not having the money. Some altercation started. At that time St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 55 both Mahesh Sharma and Rinku were under the influence of liquor. Thereafter they both started beating my brother Sh. Daya Nand. At the same time the brother of Mahesh Sharma namely Manish Sharma @ Kallu also reached there from the upper floor. Vol. Two brothers i.e accused Mahesh Sharma and Manish were residing in the premises of mandir. The accused Mahesh Sharma, Manish and Rinku started beating my brother Sh. Daya Nand with fist blows and kicks. I tried to intervene but I was scared and due to which I ran towards my house. Within ten minutes I came back at the spot again my father was pleeding with folding hands before the accused persons by saying that "chor do chor do". Some public persons also collected there and all of them requested us to go back now and matter will be seen in the morning as both the accused Rinku, Mahesh were under the influence of liquor. Vol. I was not aware if Manish was having liquor or not. Thereafter we brought my brother Sh.

Daya Nand to our house. My brother Sh. Daya Nand was complaining of pain in his chest and he was very scared. My father and my chacha Sh. Radhey Shyam took my brother to nearby nursing home namely Manna Nursing Home. My father informed me that doctor has given my brother Sh. Daya Nand one injection and medicine and thereafter my brother was left at his residence i.e. House NO. 1827, Multani Mohalla with his wife after giving her the schedule of medicines.

On the next morning at about 8 AM I opened my sweet shop situated at WZ­1971, Multani Mohalla, Rani Bagh. At about 9AM some person informed me that my brother has expired. When I reached the house of my brother, I found my other family members already present there. My father informed me that when Deepika bhabi St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 56 got up at about 8:30 AM she informed my father about the death. My father called the doctor Harish Bhatia who declared my brother dead. The death of my brother had occurred due to the incident of beatings given by the accused persons in the last night. My brother was beaten by the accused persons mercilessly. I ran from the spot as I became scared because of giving the beatings. The name of Rinku is Prashant Bhaskar as per my knowledge. The accused Prashant Bhaskar @ Rinku was arrested by the police vide memo EX PW 13/A bearing my signatures at point A. His personal search was conducted vide memo EX PW 13/B bearing my signatures at point A. I can identify the accused Manish Sharma and other accused persons ( the accused Prashant Bhaskar has been discharged, and the accused Mahesh Sharma has expired).

At this stage witness has correctly identified the accused Manish Sharma who is present in the court today in judicial custody.

(71) It is writ large from the testimony of Vipin Mittal (PW14) that he along with his father (Pushkar Raj), brother (deceased Dayanand) and employee Ram Bran had gone to the temple i.e. Rama Mandir where Mahesh Sharma was residing in order to collect money of the committee from Mahesh Sharma but since he (Mahesh Sharma) was not having the same, hence there was some verbal and also physical altercation between Daya Nand and Mahesh Sharma. According to him, Mahesh Sharma and Rinku (discharged) who were under the influence of liquor also came and started beating his brother Daya Nand and at the same time the brother of Mahesh Sharma namely Manish Sharma @ Kalu also reached there from St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 57 the upper floor and thereafter they all started beating Daya Nand with fists and leg blows, when he tried to intervene. The witness Vipin Mittal has been exhaustively cross­examined.

(72) I may observe that this Vipin Mittal (PW14) the real brother of the deceased is a young boy of 26 years whereas his father Pushkar Raj (PW1) is aged around 55 years. Assuming the testimony of Vipin Mittal as correct, a serious doubt has crept in the mind of this Court with regard to the correctness of the incident as narrated by him. On the one hand he has alleged that four persons i.e. Pushkar Raj (PW1), Dayanand (deceased), Ram Baran and he himself had gone to the house of Mahesh Sharma where there was a verbal altercation. It shows that the initial altercation was between one person on one side and four persons on the other side.

According to Vipin Mittal later it aggravated into a physical altercation in which Manish @ Kalu and Rinku (discharged accused whom he has not named at the first instance) joined meaning thereby that the scuffle was between four persons on one side and three persons on the other side. It appears to be improbable that despite being in majority (four persons) they could have been overtaken by the accused who admittedly according to them were unarmed. Further, it also appears improbable that while his elder brother Dayanand was being badly thrashed and beaten by the accused, Vipin a young boy of 24 years would have run away from the spot leaving his aged father and elder brother at the mercy of the accused. It is further strange that in the said scuffle which took place between two parties St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 58 no injuries were received by any other person except the deceased. Vipin Mittal (PW14) in his testimony also does not claim that after he ran away from the spot leaving his father and elder brother at the mercy of the accused who were beating Dayanand, he raised any alarm in the area or made any efforts to call the police or sought any help. It is strange that he went back home without raising any alarm or seeking any help and then again returned to the spot after ten minutes to inquire what had happened. Any other person under the given circumstances would have immediately made efforts to seek help either by raising an alarm or by making a call to police which Vipin Mittal a young man of 26 years does not do. It is further strange that after he goes back home and finds that his brother is complaining of burning sensation in the chest, he does not accompany him to the doctor, rather it is his aged father Pushkar Raj and his uncle Radhey Shyam who take Dayanand (deceased) to the doctor (wife of the deceased Deepkia - PW2 confirms that it was Pushkar Raj and Radhey Shyam who took the deceased to the hospital). The conduct of Vipin Mittal does not appear to be natural and probable and the possibility of his being a planted witness only to corroborate the version given by Pushkar Raj and to lend support to the prosecution case cannot be ruled out.

(73) I may further note that for the act of the prosecution in withholding Ram Baran from the Court by not citing or examining him as a witness despite being an independent eye witness to the incident, an adverse inference is being drawn. Also, despite the fact that as soon as St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 59 Dayanand (deceased) came back home and started feeling a burning sensation in his chest and was taken to the Nursing Home of Dr. Basant Malhotra neither he nor Pushkar Raj (his father who accompanied him to the clinic) informed Dr. Basant Malhotra about the incident. This indicates that even the family of deceased Dayanand did not take the scuffle/ altercation which took place between the deceased on one side and the accused and his brother Mahesh Sharma (expired) on the other side, very seriously or else they would have informed the doctor and also the police officials of the same at the first instance.

(74) Hence, in view of the aforesaid the entire case of the prosecution now rests upon the testimony of Pushkar Raj (PW1) who admittedly in his first statement to the police made immediately after the incident, does not incriminate anybody and only informs about the altercation which took place between the deceased and the accused Manish Sharma @ Kalu (and his brother Mahesh - expired). It is only later after almost three months of the incident that he gave a detail narration of the events which transpired thereof. No valid explanation is forthcoming for this delay and it is for this reason that the co­accused Rinku has already been discharged by the Hon'ble Delhi High Court. No motive has been alleged and it is writ large that the incident of hatha­pai/ quarrel took place at the spur of the moment. The nature of injuries as mentioned in the postmortem report do not reflect the use of any weapon. Pushkar Raj (PW1) in his testimony does not say that any kind of weapon was used. His St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 60 uniform stand has been that there was an altercation. The only difference being that in his first statement (Ex.PW1/A) he claimed that there was a small scuffle (halki hatha­pai) whereas in his later statements (Ex.PW1/B and also in his testimony before the Court) he claimed that the deceased was given fist and leg blows. The report of the Medical Board confirms the blunt force impact (fist and leg blows) leading to the internal hemorrhage of brain as well as kidneys (fatal injury was internal hemorrhage of brain). Hence, this being the background I hold the testimony of Pushkar Raj (PW1) to the extent of identification of the accused and with regard to the nature of injuries inflicted on the deceased, credible and reliable, strongly pointing out towards the guilt of the accused Manish Sharma @ Kalu.

Absence of premeditation/ planning/ motive/ intention:

(75) It is the case of the prosecution that the the complainant Pushkar Raj who is the father of the deceased was running a committee and he along with his sons Dayanand and Vipin had gone to the house of Mahesh Sharma a priest in the temple where there was a verbal altercation.

In the meanwhile, the accused Manish Sharma and his friend Rinku (discharged) came down stairs and on seeing what was happening joined in and gave a thrashing to the deceased by fists and leg blows as a result of which Dayanand sustained serious injuries on his vital organs and expired in the intervening night. This aspect has gone uncontroverted. Pushkar Raj St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 61 (PW1) and Vipin Mittal (PW14) have not been able to place any documentary material to show that they were running a committee and that Mahesh Sharma owed some money to them but the fact that Mahesh Sharma was a part of the committee has not been controverted by the accused in his defence.

(76) The first statement of Pushkar Raj which is Ex.PW1/A indicates that they had not taken the incident very seriously so much so that when they went to the clinic of Dr. Basant Malhotra at night they did not inform the doctor about any history of assault. The report of the Medical Board which finds due corroboration from the testimony of Pushkar Raj confirms that the fatal injury was on account of blunt force impact (leg and fist blows) and it is an admitted case of the prosecution that no weapon including lathi, danda or deadly weapon like knife were used by the accused. It is also not alleged or indicated that the accused Manish Sharma @ Kalu had acted in a cruel or unusual manner. This being the background and being an admitted case that in the incident took place at the spur of the moment when the deceased Dayanand and his father Pushkar Raj went to the house of Mahesh Sharma for collecting the payment of committee, which verbal altercation was followed by a small scuffle, the facts speak for themselves confirming the absence of any intention, premeditation or planning by the accused. Further there is no history of any prior animosity between the parties thereby confirming the absence of motive on the part of the accused Manish Sharma @ Kalu to cause death of the deceased. St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 62 Whether the provisions of Section 302 or Section 304 IPC would apply:

(77) Now it has to be determine whether on the basis of the evidence on record, the case against the accused Manish Sharma @ Kalu is of murder punishable under Section 302 Indian Penal Code or of culpable homicide nor amounting to murder punishable under Section 304 Indian Penal Code.

(78) The case of the prosecution is that the complainant Pushkar Raj along with his sons Dayanand (deceased), Vipin Mittal (PW21) and their employee Ram Baran had gone to the house of Mahesh Sharma to collect the payment of the committee and there was a verbal altercation between Mahesh Sharma and Dayanand when the accused Manish Sharma came downstairs and gave fists and leg blows to Dayanand with such an intention or knowledge to cause the death of Dayanand.

(79) Ld. Defence Counsel has vehemently argued that even if the occurrence is admitted to have taken place in the manner as claimed by the prosecution, the accused cannot be held guilty for the commission of offence punishable under Section 302 IPC. It is submitted that as the occurrence having taken place without pre­meditation, in a sudden fight in the heat of passion upon a sudden quarrel, the case of the accused would be covered by the Exception to Section 300 of the Indian Penal Code. (80) The Ld. Addl. Public Prosecutor for the State has on the other hand argued that the present case squarely covered within the provisions of Section 302 Indian Penal Code whereas the plea of the Ld. Addl. Public St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 63 Prosecutor is that the manner in which the fists and leg blows had been given to the deceased with such a force which resulted into his death, is indicative of the intent of the accused.

(81) In this regard, I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. There are five exceptions provided to the above. Firstly culpable homicide is not murder if the offender, whilst deprived of the power of self­ control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. I may observe that this exception is also subject to the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 64 public servant in the lawful exercise of the powers of such public servant;

the provocation is not given by anything done in the lawful exercise of the right of private defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill­will towards the person whose death is caused. Fourthly 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 and it is immaterial in such cases which party offers the provocation or commits the first assault. Lastly Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. [Reference in this regard may be made to the case of Kundaswamy Vs. State of Tamil Nadu reported St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 65 in 2008 (11) SCC 97].

(82) The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 Indian Penal Code. (Ref.: Daya Nand Vs. State of Haryana reported in AIR 2008 SC 1823).

(83) The Hon'ble Supreme Court when confronted with this issue in the case of Virsa Singh Vs. The State of Punjab, reported in 1958 AIR 465 observed that:

"...... The intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If be can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 66 consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.­ But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not One of law but one of fact......"

(84) It is settled principle of law that whenever a court is confronted with the question as to whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 67 be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Indian Penal Code. Note: All murders are culpable homicide but not vice­a­versa. (Ref.: State of A.P. Vs. Rayavarapu Punnayya reported in AIR 1977 SC 45). (85) For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The Fourth St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 68 Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. While in the case of Exception 1 there is total deprivation of self­control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 69 Exception 4 can be invoked if death is caused (a) without premeditation,

(b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage.

(86) Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. [Ref.: Golla Yelugu Govindu Vs. St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 70 State of Andhra Pradesh reported in 16 (2008) SCC 769] (87) To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self­ control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by courts that a fight is not per­se palliating circumstance and only unpre­meditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception. [Ref.: Sukhbir Singh Vs. State of Haryana reported in 2000 (3) SCC 327: AIR 2002 SC 1168 followed by our own High Court in the case of Manoj Kumar & Ors. Vs. The State in Criminal Appeal No. 638/2009 decided on 27.3.2012]. (88) Applying the settled principles of law to the facts and circumstances of the present case, it is evident that there was no previous history of animosity between the parties nor there are any allegations that St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 71 the incident was preplanned. Rather, on the other hand it is case of the complainant Pushkar Raj (PW1) himself that the incident of quarrel/ altercation had taken place when he along with his son Dayanand (deceased) had gone to the house of Mahesh Sharma to collect the payment of the committee. He has explained that Mahesh Sharma did not have the money to pay when they (Pushkar Raj and deceased Dayanand) insisted on payment resulting into an altercation at the spur of the moment. He has also proved that initially there was a verbal altercation between Dayanand (deceased) and Mahesh Sharma (since expired) followed by a physical altercation (halki hatha­pai). According to Pushkar Raj the accused Manish Sharma @ Kalu who is the brother of Mahesh Sharma (since expired) came down from the first floor while the altercation was taking place and started giving fist and leg blows to Dayanand (deceased) when he had to intervene and plead with them. It is also the case of Pushkar Raj and thereafter they all came back from the spot and in fact the deceased Dayanand himself walked back to his house and it was much later that he started complaining of burning sensation in the chest and was taken to the nearby Nursing Home by him. It is further the case of Pushkar Raj (PW1) that the deceased himself walked to the Nursing Home and also returned on foot. Hence, it is writ large that the injury received by the deceased was internal and went unnoticed so much so that they did not even inform Dr. Basant Malhotra about the incident of hatha­pai and the only treatment given to the deceased was relating to hyper­acidity etc. The medical St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 72 evidence confirms that the death of the deceased was on account of internal hemorrhage. It is writ large that the deceased expired many hours after the incident while he was sleeping. Whether the fatal fist and leg blows were given by the accused Manish Sharma @ Kalu or by Mahesh Sharma (since expired) is immaterial since the evidence on record shows that both of them together had given him the blows. The prosecution however has miserably failed to bring on record material to show that the intention of the accused was to cause death of the deceased Dayanand. Rather, on the contrary the material on record indicates that when Manish Sharma @ Kalu came down from the first floor the altercation was already taking place between Dayanand and Mahesh Sharma and he intervened in the same to give leg and fist blows to Dayanand and after Pushkar Raj intervened they withdrew and the deceased Dayanand along with his family members went back to their home. There is also nothing on record to show that the accused Manish Sharma @ Kalu had acted in a cruel or unusual manner since in the first statement Ex.PW1/A the allegations made by Pushkar Raj was only of a small altercation. However, in so far as the aspect of knowledge is concerned, the accused is deemed to be aware of the consequences of his act of inflicting fist and leg blows on the vital organ (i.e. head) of a person. In this background, I hereby hold that the prosecution has not been able to prove the requisite intent but the the aspect of knowledge however stands established. I further hold that Under the given circumstances the present case squarely falls within the provisions of Exception 4 to Section 300 St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 73 Indian Penal Code (not under Section 302 Indian Penal Code) and the accused Manish Sharma is hereby held guilty of the offence under Section 304 (Part II) Indian Penal Code.

FINAL CONCLUSION:

(89) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(90) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 74 in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. From the testimonies of the various prosecution witnesses, medical and other circumstantial evidence on record, the following facts stand established:

➢ That there was some monetary dealings between the complainant Pushkar Raj in connection with business of Committee and Mahesh Sharma (the brother of accused Manish Sharma) was a part of the said committee.

➢ That the accused Manish Sharma (brother of Mahesh Sharma) was residing with him in the same premises in the Temple i.e. Rama Mandir, Rani Bagh and was previously known to the family of the deceased.

➢ That on 5.4.2006 the complainant Pushkar Raj along with his elder son Dayanand, his worker Ram Baran went to the house of Mahesh Sharma for taking the payment of the committee.

         ➢         That Mahesh Sharma asked them to come at 8:30 PM.

         ➢         That when they again went to the house of Mahesh Sharma at 

about 8:30 PM Mahesh Sharma was not found present at his house due to which reason they waited for him.

➢ That at about 10:15 PM Mahesh Sharma came and told them that he had no money; that initially there was a verbal altercation but thereafter Mahesh Sharma started beating Dayanand.

St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 75 ➢ That the accused Manish Sharma (the brother of Mahesh Sharma) came down from the first floor and gave beatings to Dayanand with legs and fists blows but with the intervention of Pushkar Raj the issue was resolved and they returned to their home.

➢ That after ten minutes of reaching home Dayanand complained of burning sensation in his chest on which Pushkar Raj and his brother Radhey Shyam took him to Manna Nursing Home where he was provided medical treatment by Dr. Basant Malhotra for burning sensation in the chest.

➢ That thereafter Pushkar Raj left Dayanand to his house after which Dayanand slept.

➢ That on the next day morning at about 8:30 AM the wife of Dayanand noticed that there was no movement in the body of Dayanand on which she called up Pushkar Raj.

➢ That Pushkar Raj reached the house of Dayanand and called Dr. Harish Bhatia who after examining Dayanand declared him dead.

➢ That the cause of death was head injury (hemorrhage) consequent to the blunt force impact.

(91) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 76 investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (92) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. (93) However, the prosecution however has miserably failed to bring on record material to show that the intention of the accused was to cause death of the deceased Dayanand. Rather, on the contrary the material on record indicates that when Manish Sharma @ Kalu came down from the first floor the altercation was already taking place between Dayanand and Mahesh Sharma and he intervened in the same to give leg and fist blows to Dayanand and after Pushkar Raj intervened they withdrew and the St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 77 deceased Dayanand along with his family members went back to their home. There is also nothing on record to show that the accused Manish Sharma @ Kalu had acted in a cruel or unusual manner since in the first statement Ex.PW1/A the allegations made by Pushkar Raj was only of a small altercation. However, in so far as the aspect of knowledge is concerned, the accused is deemed to be aware of the consequences of his act of inflicting fist and leg blows on the vital organ (i.e. head) of a person. In this background, I hereby hold that the prosecution has not been able to prove the requisite intent but the the aspect of knowledge however stands established. I further hold that Under the given circumstances the present case squarely falls within the provisions of Exception 4 to Section 300 Indian Penal Code (not under Section 302 Indian Penal Code) and the accused Manish Sharma is hereby held guilty of the offence under Section 304 (Part II) Indian Penal Code.

(94) Case be listed for arguments on sentence on 26.10.2012.

Announced in the open Court                                         (Dr. KAMINI LAU)
Dated: 17.10.2012                                                   ASJ­II(NW)/ ROHINI




St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar                        Page No. 78

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­ II (NORTH­WEST): ROHINI COURTS: DELHI Session Case No. 73/2011 Unique Case ID No.: 02404R0395612007 State Vs. (1) Manish Sharma S/o Sh. Suresh Chand Sharma R/o WZ 1031, Ram Mandir, Rani Bagh, Saraswati Vihar, Delhi (Convicted) (2) Prashant Bhaskar @ Rinku S/o Late Suresh Kumar Bhaskar R/o WZ 847, Rani Bagh, Gali No.2, Delhi (Discharged) FIR No.: 765/2006 Police Station: Saraswati Vihar Under Sections: 302/201/34 Indian Penal Code Date of judgment: 17.10.2012 Arguments concluded on: 26.10.2012 Date of sentence: 3.11.2012 APPEARANCE:

Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.

Convict Manish Sharma in judicial custody with Sh. R.S. Deshwal Advocate.

St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 79 ORDER ON SENTENCE:

Vide a detailed judgment dated 17.10.2012, this Court has held the accused Manish Kumar guilty of the offence under Section 304 (Part II) Indian Penal Code.

As per the allegations of the prosecution, on 5.4.2006 at about 10:15 PM the complainant Pushkraj Raj along with his son Dayanand (deceased), Vipin and their employee Ram Baran went to the house of Mahesh Sharma (brother of the accused Manish Sharma) at House No. 1031, Rani Bagh Ram Mandir, Delhi for collecting the payment of committee. Since Mahesh Sharma was unable to pay the amount of the committee there was some altercation between Dayanand (deceased) and Mahesh Sharma (since expired) in which Mahesh Sharma (since expired) and his brother Manish Sharma gave fists and leg blows to Dayanand (deceased). The issue was resolved with the intervention of Pushkar Raj (father of Dayanand). Thereafter Dayanand returned home where he complained of burning sensation in his chest. On this he was taken to Manna Clinic where he was given some injection and medicines. Dayanand returned back to his house and slept. In the morning he did not wake up and was discovered having died in sleep.

On the basis of the testimonies of the various witnesses examined by the prosecution particularly Pushkar Raj (complainant/ father of the deceased Dayanand), Smt. Deepika (wife of the deceased), Vipin Mittal (brother of the deceased Dayanand); medical; forensic and other St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 80 circumstantial evidence on record, this Court vide a detailed judgment dated 17.10.2012 this Court has observed that it stood established that there was some dealing between the complainant Pushkar Raj in connection with business of Committee and Mahesh Sharma (the brother of accused Manish Sharma) was a part of the said committee; that the accused Manish Sharma (brother of Mahesh Sharma) was residing with him in the same premises in the Temple i.e. Rama Mandir, Rani Bagh and was previously known to the family of the deceased; that on 5.4.2006 the complainant Pushkar Raj along with his elder son Dayanand, his worker Ram Baran went to the house of Mahesh Sharma for taking the payment of the committee; that Mahesh Sharma asked them to come at 8:30 PM; that when they again went to the house of Mahesh Sharma at about 8:30 PM Mahesh Sharma was not found present at his house due to which reason they waited for him; that at about 10:15 PM Mahesh Sharma came and told them that he had no money; that initially there was a verbal altercation but thereafter Mahesh Sharma started beating Dayanand; that the accused Manish Sharma (the brother of Mahesh Sharma) came down from the first floor and gave beatings to Dayanand with legs and fists blows but with the intervention of Pushkar Raj the issue was resolved and they returned to their home; that after ten minutes of reaching home Dayanand complained of burning sensation in his chest on which Pushkar Raj and his brother Radhey Shyam took him to Manna Nursing Home where he was provided medical treatment by Dr. Basant Malhotra for burning sensation in the St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 81 chest; that thereafter Pushkar Raj left Dayanand to his house after which Dayanand slept; that on the next day morning at about 8:30 AM the wife of Dayanand noticed that there was no movement in the body of Dayanand on which she called up Pushkar Raj; that Pushkar Raj reached the house of Dayanand and called Dr. Harish Bhatia who after examining Dayanand declared him dead.

The medical evidence has established that the cause of death was head injury consequent to the blunt force impact.

It has also been observed by this Court that there was no previous enmity between the parties and that the quarrel took place at the spur of the moment without any premeditation and without the accused having acted in any cruel or unusual manner. It also stood established that in fact the incident in question was so innocuous that even the deceased and his family did not even inform the doctor (i.e. Dr. Basant Malhotra) of the same when they went for treatment and the only complaint made to the doctor was of burning sensation in the chest. Further, the fact that even in the first statement which the complainant (Pushkar Raj the father of the deceased) made to the police on the same day of the death of the deceased, he only informed them that there was a verbal altercation and a small incident of Hatha­Pai (physical altercation), which indicates the absence of any intent so attributed to the accused.

In view of the above, the case falls within the Exception (4) to Section 300 Indian Penal Code. Further, there being no intention attributed St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 82 or proved, the accused Manish Sharma has been held guilty of the offence under Section 304 (Part II) Indian Penal Code and accordingly convicted.

Heard arguments on the point of sentence. The convict Manish Sharma aged about 33 years is reported to be a Driver by profession. He is 5th class pass and is having a family comprising of father, mother, one married brother, one elder married sister and wife (who has now left him). He has remained in judicial custody for two years, six months and twenty five days. Ld. Counsel appearing on behalf of the convict has vehemently argued that the convict Manish Sharma is a first time offender and is not involved in any other case. He has prayed that a lenient view be taken against the convict.

On the other hand the Ld. Addl. Public Prosecutor for the State has argued that the convict deserves no mercy keeping in view the nature of allegations involved and a stern view be taken against him.

I have considered the rival contentions. The convict is a first time offender and has no previous background. The unfortunate incident was a result of a sudden quarrel and the convict did not act in any cruel manner and hence under the given circumstances, the convict Manish Sharma is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.1,00,000/­ (Rs. One Lac) for the offence under Section 304 (Part II) Indian Penal Code. In default of payment of St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar Page No. 83 fine the convict shall undergo Simple Imprisonment for a period of Six Months. The entire fine amount of Rs.1,00,000/­, if recovered, shall be given to the widow of the deceased Dayanand as compensation under Section 357 Code of Criminal Procedure.

Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them during the trial, as per rules.

The convict is informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

Copy of the judgment and order of sentence be given to the convict free of costs and one copy of sentence be attached with his jail warrants.

File be consigned to Record Room.

Announced in the open court                                                (Dr. KAMINI LAU)
Dated: 3.11.2012                                                          ASJ­II(NW)/ ROHINI

 




St. Vs. Manish Sharma, FIR No. 765/06, PS Saraswati Vihar                             Page No. 84