Delhi District Court
St. vs . Mukesh Singh Etc. on 6 June, 2009
1
IN THE COURT OF MS. REENA SINGH NAG
ADDL.SESSIONS JUDGE-2 (EAST), KKD, DELHI
SC No.169/04
FIR No. 337/03
PS. Mandawali
U/s.302/34 IPC
St. Vs. Mukesh Singh etc.
State.
Versus
1. Mukesh Singh@ Lichi
S/o. Jaspal Singh
R/o. A-158, Shiv Mandir Ke Piche Wali Gali,
Mandawali, Delhi-92.
2. Jaspal Singh
S/o. Jaswant Singh
R/o. A-158, Shiv Mandir Ke Piche Wali Gali,
Mandawali, Delhi-92.
Date of Institution: 22.01.04
Date of Argument: 02.06.09
Date of Judgment: 03/06/09
JUDGMENT
1. As per prosecution version on 14.09.03 wireless operator came at 2.20 pm in DO room and informed that a quarrel has taken place behind the Shiv Mandir near house no. 8158 Mandawali and there has been a lathi charge and a number of persons have sustained injuries. The information Page 1 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 2 was reduced to DD No. 14 A and ASI Prakash Chand alongwith Ct. Jitender proceeded to the spot. In the meanwhile on being informed to SHO and Addl. SHO about the incident, SHO alongwith Operator Ct. Gurmeet went to the spot in Govt. vehicle with Driver Yogesh where it was learnt that injured persons have already been removed to LBS hospital. At the spot no person was met who could tell the circumstances of the quarrel. As such, Addl SHO alongwith accompanying staff reached at the LBS Hospital where ASI Prakash Chand alongwith Const. Prempal met Addl SHO and produced the MLC of Satish Kumar son of Bahori Lal and MLC of Bahori Lal son of Nanak Chand. Satish Kumar was declared brought dead in the MLC whereas Bahori Lal was declared as conscious with history of assault and result of injury under observation as blunt. Statement of Bahori Lal was recorded by Addl SHO which is inter alia to the effect that he had come 8/10 days back from his village to the house of his son Satish Chand Gupta who was residing with his sister in law (sali) at A-147, Shiv Mandir gali, Mandawali. His son Satish was a three wheeler (Vikram) driver. On that day (14.09.03), Satish had gone on his duty at about 09.00 am in his Vikram bearing no. HR 38 C 7388. During the day time at about 01.45 pm, he brought the vehicle back with the load of maida and parked the vehicle near the house in the gali and was in the process of unloading the maida for chowmin factory at A-192 in the gali and he was being watched by Bahori Lal and Sonu son of Suresh Chand Gupta (son of his sister-in-law/sali) while standing on the door of the house no. A-147. Thereafter they proceeded towards Satish. In the meanwhile, one TSR driver came driving from back the TSR No DL 1RE Page 2 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 3 0181 and stopped the same at the back of the Vikram. That driver hurled abuses at Satish by remarking "Sale gali tere baap ki hai", he asked Satish to remove the vehicle from the gali whereupon Satish requested him that he is in the process of removing the Vikram as material has been unloaded. Notwithstanding the TSR driver got down from his TSR and caught hold of the neck of Satish and pushed him into drain (nali) and made him fall and simultaneously remarked that he would settle the matter for all time as it has become the practice of Vikram driver to obstruct the gali by parking the vehicle daily (sale aaj tujhe nipta kar hi dam lunga, gali me gadi khadi karke raasta rokna tera roj ka kaam ho gaya hai). Saying so he moved to his house (His name was subsequently learnt as Mukesh son of Jaspal, R/o A-158, Shiv Mandir Gali, Mandawali) and returned to the spot carrying a knife in his hand alongwith his brother-in-law( jija) whose name was learnt as Jaspal. The moment they came, Jaspal caught hold of Satish and gave slaps and fist blows to him and he exhorted "Mukesh dekh kya raha hai, maar sale ko chaku" whereupon Mukesh immediately gave knife blow on the chest of Satish as a result, Satish fell on the ground and when Bahori Lal and Sonu resisted, Mukesh gave fist blow on mouth of Bahori Lal, Jaspal also belaboured Bahori Lal with fist blows. A number of persons gathered who saw the incident. Satish was removed to the hospital where doctor declared Satish brought dead. On this statement, FIR was registered u/s. 302/34 IPC.
2. During investigation, both the vehicles were seized. Accused persons were arrested and their disclosure statements were recorded.
Page 3 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 4Accused Mukesh also got recovered weapon of offence from inside his house. After completion of investigation, challan was filed u/s. 302/34 IPC against both the accused persons.
3. After committal, charge was framed on 04.02.04 by the then predecessor Sh. B. R. Kedia against both the accused persons u/s. 302/34 IPC for murder of Satish and u/s 323/34 IPC for causing simple injury on the person of Bahori Lal. Both the accused persons pleaded not guilty and claimed trial.
4. In support of its case, prosecution has examined the following witnesses :
5. PW-1 is Bahori Lal Gupta, complainant who has endevoured to support he prosecution version and identified both the accused persons correctly. He also proved his statement on the basis of which FIR was registered, vide Ex. PW-1/A . He proved the personal search memo of accused Mukesh and Jaspal vide Ex. PW-1/B and Ex PW-1/C and their arrest memos vide Ex. PW-1/D and Ex. PW-1/E and identification statement of dead body of his son as Ex PW-1/F. He also identified the weapon of offence with which knife blow was inflicted on the chest of Satish as Ex P-1. He also identified the clothes worn by Satish at the time of incident, collectively as EX P-3. As per him, police has also seized the Vikram and TSR. His examination-in-chief was recorded on 18.05.04 and he was cross-examined on 02.06.05, 02.07.05, 06.08.05, 19.09.05.
Page 4 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 56. PW-2 is another eye-witness Sonu who is cousin brother of deceased Satish in whose house Satish was residing. He has also endevoured to support the prosecution version and corroborated PW-1. He also added that Mukesh was known to him because he was residing in the same gali where PW-2 was residing. He has also identifed the case property i.e. Knife and the clothes of Satish. His examination-in-chief was concluded on 18.05.04 and he was cross-examined on 19.04.06 and 29.05.06.
7. PW-3 is Const. Om Pal Singh, a member of Crime Team as a photographer who had visited the scene of crime on 14.09.03 and had taken six photographs from different angles as suggested by the SHO and he proved the photographs as Ex. PW-3/7 to 12 and negatives thereof as Ex. PW-3/1 to 6.
8. PW-4 is Dr. Rakesh Singh who had prepared the MLC of Satish Kumar brought by Bahori Lal with alleged history of assault on 14.09.03 and he proved the MLC as Ex PW-4/A . As per him Satish Kumar was declared brought dead.
On that day he also prepared the MLC of Bahori Lal who had himself come to the hospital. PW-4 proved his MLC as Ex. PW-4/B. Bahori Lal was referred to Sr. Resident Surgery and Dental OPD.
Page 5 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 69. PW-5 is Dr. Kavaita Dhalla from Dental Department, LBS hospital who proved the nature of injury on the MLC of Bohary Lal as simple vide Ex. PW5/A.
10. PW-6 is Ct. Prem Pal who remained associated with the investigation of the case. He had accompanied ASI Prakash Singh to the spot on the day of the incident. He also reached LBS hospital and got the FIR registered when the SHO gave him rukka for the same. As per him, both the accused persons were arrested by the IO and their disclosure statements were recorded which were proved as Ex. PW6/A and Ex. PW6/B wherein he signed at point-A. He also proved the pointing out of the place of occurrence by the accused persons vide Ex. PW6/C with his signatures at point-A. He also stood witness to the recovery of weapon of offence i.e. Knife got recovered by accused Mukesh, which was seized vide memo Ex. PW6/E. The knife was sealed in the parcel and seal after use was given to the witness. Knife was identified in the court as Ex. P-1, he also identified both the accused persons. He also referred to the seizure of TSR bearing no. DL-1RE-0181 from the place of occurrence vide memo Ex. PW6/F and seizure of Vikram bearing no. HR-38C-7388 from the place of occurrence vide memo Ex. PW6/G. He identified the vehicles referred above from the photographs Ex. PW3/11 and Ex. PW3/12. He was examined in chief on 25.08.06 and was cross examined at length on 28.11.07 and 10.01.08.
11. PW-7 is ASI Prakash Chand who has also endeavoured to support Page 6 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 7 the prosecution version and corroborated PW-6. As per him, the knife was sealed with the seal of RBS. He was examined on 06.02.07 and further examined on 23.04.07.
12. PW-8 is retired SI Jagpal Singh who had accompanied the IO/ Inspector Rajvir Sharma to Subji mandi mortuary where inquest proceedings were conducted and dead body was also got identified by Sonu and Bahori Lal and their identification statements were recorded. The body was handed over to the doctor for postmortem and after postmortem, the pullandas alongwith sample seal of hospital were given to the IO which were seized by memo Ex. PW8/A wherein he identified the signature at point-X. He also stated that the pullandas contained clothes of the deceased and blood sample. He proved the receipt of the dead body by legal hears vide Ex. PW8/B.
13. PW-9 is HC Giri Raj Singh MHC(M) who has proved the relevant entries in register no. 19 vide Ex. PW9/A collectively with regard to deposit with and taking out of the exhibits from, Malkhana.
14. PW-10 is SI Mahesh Kumar, Draftsman who has prepared the scaled site plan vide Ex. PW10/A on 14.11.03. Site was inspected on 17.10.03 and rough notes and measurements were taken at the instance of Sonu.
15. PW-11 is HC Tej Pal Singh who has recorded the FIR vide Ex.
Page 7 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 8PW11/A and he proved the endorsement on the rukka brought by Ct. Prem Pal, vide Ex. PW11/B.
16. PW-12 is Ct. Kiran Pal who had taken the exhibits from the Malkhana on 18.11.03 vide RC No. 64/21 and deposited the same in the FSL office, Malviya Nagar. He handed over the receipt of the deposit to the MHC(M). As per him, so long as the exhibits remained in his possession, same was not tampered with.
17. PW-13 is Dr. LC Gupta, who has conducted the autopsy on the dead body and proved report with regard thereto as Ex. PW13/A. He proved the subsequent opinion as Ex. PW13/B when the weapon of offence was produced before him and he opined that the injury no. 3 mentioned in the postmortem report, present over the chest was possible by use of the weapon shown to him. It is noted that advertently the name of the deceased has been mentioned as Jagdish Chand Gupta while testifying in the court whereas in the postmortem report Ex. PW13/A his name is correctly mentioned as Satish Chand Gupta. In Ex. PW13/A following anti mortem i njuries were mentioned:
(i) Abreaded bruise of 1.5 cm. x 0.5 cm. at right side forehead. It was red in colour.
(ii) Multiple bruise of size between 3 cm. x 2 cm. to 1 cm. x 2 cm.
irregular in shape were present at both side chests at its back and right hip and right arm. These were red in colour.
(iii) Incised stab wound of size 1.5 cm. x 0.75 cm x chest cavity deep was Page 8 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 9 present at left side chest, at paricardial area in between 4th and 5th intercostal space in mid claviclaur line, with margines clean cut well defined and regular. One end countused and elepical in shape on dissection left side ventrical of heart found cut with same characteristic with collection of blood in pericardium in chest. It was 300 ml.
18. As per PW-13 cause of death was shock, which was resulted to the victim because of cardiac temponade resulted subsequent to stab injury to the heart which was sufficient to cause death in ordinary course of nature. He further mentioned that it was a case of homicidal death where involvement of more than one person could not be ruled out and that all the injuries were anti mortem and fresh in duration prior to death and that injury no. 1 and 2 were caused by blunt force whereas injury no. 3 was caused by sharp edged weapon. It was also opined that time of death was about 24 hours prior to postmortem examination.
19. PW14 is Inspector Rajvir Sharma who has also endeavoured to support the prosecution version and corroborated other PWs mutatis mutandis and referred to the exhibits mentioned the earlier PWs. He proved the endorsement on the rukka as Ex. PW14/A, inquest proceedings as Ex. PW14/B, application for conducting postmortem as Ex. PW14/C, brief facts as Ex. PW14/D, identification statement of dead body by Bohari Lal Gupta and Sonu vide Ex. PW1/F and Ex. PW14/E. He also proved the FSL report vide Ex. PW14/F and Ex. PW14/G. He identified both the accused persons in the court correctly besides identifying weapon of Page 9 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 10 offence i.e., knife as Ex. P-1. He has been cross examined at length on certain dates.
20. After closure of prosecution evidence, all the incriminating evidence adduced on record was confronted with the accused persons individually u/s 313 Cr.P.C., to which they both denied and claimed innocence. In his statement u/s 313 Cr.P.C. In response to question no. 3 accused Mukesh answered that to his knowledge there was a chowmin factory in his gali and he was resident of A-158, Shiv Mandir ke pichhe wali gali, Manawali. In response to question no. 16, he answered that it is a matter of record that TSR No. DL-1RE-0181 (Ex. X-1) was seized vide memo Ex. PW6/F. He claimed that he was arrested on 14.09.03 and police had obtained his signatures on some documents without disclosing him the contents thereof. He also admitted that he was medically examined from LBS hospital in the case. He denied the recovery of knife at his instance. He admitted his relationship with co-accused Jaspal, latter being his Jeeja (brother-in-law). He did not opt to lead any evidence in his defence despite opportunity.
21. In his such statement, accused Jaspal Singh admitted his relationship with co-accused Mukesh but denied the incident and claimed that he was lifted from his house at Karolbag. He also said that Mukesh had no concern with TSR NO. DL-1RE-0181 (Ex. X-1). He however admitted in response to question no. 5 that Mukesh was residing during those days at house no. A-158, Shiv Mandir ke pichhe wali gali, Page 10 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 11 Mandawali. He also did not opt to lead evidence in his defence despite opportunity.
22. I have heard the arguments at length from Ld. APP Sh. Masood Ahmad representing the state and Ld. Defence Counsel Sh. Rakesh Kochar for both the accused persons and gone through the record in the light of relevant provisions of law. Respective rival submissions have been dealt with hereunder while appreciating the evidence adduced on record.
23. As per prosecution this is a murder case having eye witnesses, albeit such witnesses are relatives of deceased Satish. It is also the case of prosecution that accused persons lived in the gali of deceased and eye witness's version is corroborated by medical evidence, seizure of vehicles of deceased as well as of accused Mukesh from the spot and recovery of weapon of offence i.e kitchen knife at the instance of accused Mukesh from his house. Besides, as per prosecution, FSL report confirms presence of victims blood on knife as blood group thereon and blood group of victim is "B". It has been asserted by the prosecution that eye witnesses are wholly reliable. On the other hand defence claims that testimony of eye witnesses when kept in juxtaposition with testimony of official PWs and documents on record reveals that they both are procured PWs and are unreliable and cannot be believed.
24. In Criminal jurisprudence, witnesses can be categorised in three categories, wholly reliable, partly reliable and unreliable. While Page 11 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 12 appreciating the testimony of witnesses, court is required to see whether a witness is found reliable or not and in this regard court has to consider whether witness's statement is inherently improbable or contrary to the course of nature; whether his deposition contains mutually contradictory or inconsistent statements; whether he is found to be bitter enemy of the opposite party; whether his veracity appears doubtful; whether he is found to have been bribed or he has accepted any corrupt inducement to give evidence and court is also required to observe his demeanor in the court, if the same is abnormal and unsatisfactory. It has also been held in catena of cases that even a hostile witness is not liable to be rejected entirely and he can be believed in certain circumstances. Relied Bhagwan Singh AIR 1976 SC 202; Satpal AIR 1976 SC 294; Khujji @ Surender Tiwari 1991 CRLJ 2653 SC, wherein it has been held that cross-examination of a witness by a party who call him would not efface his testimony altogether and it is open to the court to consider the evidence of such a witness. In Ravinder Kumar Dey AIR 1977 SC 170 it has been held that evidence of such a witness can also be used by either party if it stands corroborated by some other piece of evidence, direct of circumstantial. Creditworthiness of a witness is questionable where he speaks untruth on major points but not so, if such untruth touches the minor points. In such case, the testimony may be disregarded but not that it must be discarded. (Relied Balkshan-AIR 160 Kerala 149, Vishwa Nath Gosain AIR 1965 Patna 481, Rama AIR 1969 Goa 116, Sohrab AIR 1972 SC 2020)
25. Keeping in mind, the above principles, let us see, if PW-1 Bohri Page 12 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 13 Lal and PW-2 Sonu are reliable/partly reliable or unreliable Pws. Much emphasis has been laid by defence on prosecution version as to the time of occurrence as mentioned in the statement of Bohri Lal on the basis of which, FIR has been recorded, which mentions the time of incident as 2 pm. In this context defence has pointed out the discrepant versions of the official PWs and the record. Ex.PW6/A is DD No. 14 A, which is its true handwritten copy, that has been filed with the challan. It would be apt to reproduce the same as under:
DD No. 14 A dt. 14/09/03, PS Mandawali, DO arrival information PCR and departure. At 12.20 hours wireless operator of the PS informed that behind Shiv Mandir, Mandawali at H.No. A/18 there has been a quarrel and lathi charge and several persons sustained injury.
PCR lady constable Asha conveyed this information received from Ph.no. 5553175, upon which a copy of DD No. 14 A was handed over to Ct. Jitender and sent to ASI Prakash Chand and SHO and Addl. SHO were also informed on mobile telephone.
26. However, photocopy of relevant extracts of DD No. 14 A from the original register reflects that time mentioned therein is 14.20 hours and not 12.20 hours as has been mentioned in the handwritten copy. The DD No.13 is recorded at 12.20 hours whereas DD No. 15 is recorded at 15.00 Page 13 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 14 hours. DD No.16 is at 16.00 hours & DD No. 17 is at 16.30 hours. There appears to be some overwriting in DD No. 13 to 15. DD No. 17 pertain to bringing of rukka by Ct. Prempal from LBS Hospital containing statement of Bohri Lal on the basis of which FIR was registered. Defence pleads that overwriting in DD entries negates the very basis of prosecution version regarding the exact time of occurrence and in fact there was incident of lathi charge at the spot. Original DD No. 14A dt. 14/09/03 was physically seen while appreciating the evidence adduced on record. DD entries refer to a quarrel at the spot i.e A-158 behind Shiv Mandir. It also mentions about the lathi charge. As per defence PW-2 Sonu claimed at one point that he had made a telephone call to the police from his neighbour's house but at other point he stated that he did not make this telephone call, so he could not be believed. Defence has also referred to claim of PW-1, who stated that he sent his another son Boby to inform the police. It is noted that IO has not conducted any investigation to ascertain as to whom this telephone number belonged and who was the caller but does that mean that no such call was received at all at the PS or if the same was fabricated by manipulating the time then on that count benefit should go to the accused persons as it refers to quarrel and lathi charge only and not to stab injury. It is noted that PW-2 has been examined on different dates viz. 18.05.04, 19.04.06 and 25.05.06, whereas incident took place on 14.09.03. With the passage of time human memory fades on minute details of the case, but it remembers the main incident. In normal course of human nature when any incident in a particular manner takes place, different persons observing the same may react in different manner. The Page 14 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 15 incident lasted for few minutes only, as per affirmative suggestion given by the defence to PW-1& 2. It can thus be inferred that defence has at least admitted the occurrence of some quarrel at the spot, which lasted for few minutes, albeit their version is that the quarrel took place between deceased and some other person, which suggestion has been categorically denied by PW-1 & 2.
27. It can be appreciated that when any such incident occurs all of a sudden involving one's near and dear, such relative witness gets puzzled and confused and information to PCR through mouth of such witness is generally with intent to immediately call the police at the spot. Such a witness may or may not narrate the entire episode on phone at 100 number. His efforts would be to give particulars of place of quarrel, so as to guide the police to come over there without losing any time. It is noted that place of occurrence is rightly mentioned in DD No. 14 A. No specific suggestion regarding lathi charge has been given to PW-1 & PW-2 to assist in arriving at the truth. Now the question is that there is still discrepancy in timing as DD No. 14 A mentions the occurrence at 02.20 pm but as per complainant incident occurred at 2 pm. It is noted that PW- 1 is a rustic villager and is vegetable vendor by profession. As such, it can be presumed that he has no idea of precision in time. For such a witness and for that matter even for a city dweller, who is illiterate and from weak economic strata, difference of one or two hours is not of much importance as they refers to 1 or 2 pm as the one and the same thing and wider latitude needs to be given while appreciating their evidence. In the cross-
Page 15 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 16examination of PW-1this inference is writ large as at one point of time he had stated that he had gone to PS on 14.09.03 at about 3/3.30pm. The time of preparing site plan on 14.09.03 was also mentioned as 8/9 pm. Similarly signing of documents regarding arrest and personal search of accused at PS has been mentioned as 1 or 2 pm on 15.09.03. The MLC of deceased Satish Ex.PW4/A mentions arrival of Satish in the hospital at 2.45 pm on 14.09.03 and in the column brought by name of Bohri Lal is mentioned. Defence has sought to impeach the Bohri Lal's presence at the hospital by mentioning that no signature or thumb impression of Bohri Lal has been taken on record on the MLC of Satish Kumar, and even on his own MLC in the casualty, his signature has not been taken. MLC No. 5887/03 Ex.PW5/A of Bohri Lal reflects that he was examined by doctor at 3.20 pm. His identification mark has been mentioned as scar mark on forehead and black mole on sternum. It is mentioned that brought by self and there is lacerated wound at left angle of mouth, then there is also mention of injury near lower lip 1.5 cm x 5 cm skin deep and oozing blood and there is pain and bleeding from teeth. He was even referred to SR surgery and dental OPD but there is an endorsement by doctor Kavita that patient was advised to attend dental OPD for nature of injury but he did not attend the same, as such it (nature of injury) could not be given and on the basis of MLC, nature of injury was given simple. No question has been put by the defence to impeach the presence of this witness in the hospital, by challenging these identification marks. The absence of PW-1 from the Dental OPD of hospital may be due to the incident, in which his own son expired, so he must be in a state of shock and all the rituals after Page 16 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 17 the death were also required to be performed. His version before the court is that he was also given fist blows by both the accused persons, so there is medical corroboration and suggestion that the quarrel had taken place between Satish and somebody else and on hearing this news, he immediately rushed to the spot and in the process fell and sustained injuries, has been categorically denied by PW-1. Defence has sought to impeach PW-1 & PW-2 as they did not give any explanation as to where Satish was in between occurrence and arrival at the hospital since their claim is that LBS Hospital is at 15 minutes motorable distance from the house of deceased. Although, it is the version of PWs that within 5-10 minutes deceased was removed from the spot to the hospital in a hired taxi but it can again be appreciated in the light of discussion above with regard to the awareness of precision of time on the part of the witnesses. It is also common knowledge that even transport like hired taxi are not easily available in such like situation and 5-10 minutes are whiled away without even taken note of it and it is also difficult at the govt-hospitals to arrange a strature for the disabled and bringing him to emergency room but no question has been specifically put in this regard, so no benefit can be extended to the defence on this count. The discrepancies in the testimony of PW-1 & 2 on the aspect of arrival time at the hospital vis-a-vis the claim of official PWs has been highlighted by the defence to dislodge prosecution version. This leads to the question as to where there are two sets of PWs, one to be eye witnesses and other official witnesses then should the testimony of eye witnesses be allowed to be viewed with grave suspicion due to discrepancies in the two categories of PWs inter-se or Page 17 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 18 intra-se on the aspect of arrival at particular place or doing the writing work and the circumstances attendant thereto and other such proceedings.
28. In this case officials PWs have sought to give the impression of their complying with rules while drawing out the proceedings such as arrest of accused persons on 14.09.03, recovery on that day of vehicle and their seizure and recovery of weapon of offence, whereas PW-1 & PW-2 have sought to project that writing work with regard to all these happenings was done by the police on 15.09.03 at the PS, which is in deviation from the prosecution version. PW1 & PW-2 are not conversant with legal procedure, rules and regulations. They seem to have testified as per the events taking place whether it be occurrence, writing work by the police or the recovery. They have no interest in coming out with a version in deviation from prosecution since if such deviation is construed strictly, they should know that it would damage their case. On the other hand police officials are certainly interested to show before the court the compliance of procedural aspects. Should such breach of rules by police officials if, PW-1 & 2 are believed in that regard, in the matter of obtaining the signature of PWs on 15.09.03 instead of on 14.09.03, on memos of arrest of accused etc., be allowed to outweigh the testimony of ocular PWs. To my mind answer is no.
29. In catena of cases, it has been held that any irregularity committed in the investigation by the police should not be allowed to wash off the core of the prosecution version,if the material eye witnesses are reliable Page 18 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 19 and other circumstances of the case corroborate them. In authority reported in AIR 2000 SC 185 titled State of Karnataka Vs. K. Yarappa Reddy, it was inter-alia held that it is well nigh settled that even if, the investigation is illegal or even suspicious, the rest of evidence must be scrutinized independently of the impact of it. Otherwise, criminal trial will plummet to the level of investigating officer ruling the roost. The court must have pre-dominance and pre-eminence in criminal trials over the action taken by the investigating officers. Criminal justice should not be made the casualties for the wrong committed by the Investigating Officers in the case. In other words, if the court is convinced that the testimony of the witnesses to the occurrence is true, the court is free to act on it. Albeit, Investigating Officer has suspicious role in the case.
30. In the above context, I would also agree with the submissions of Ld. APP to the effect that in criminal complaint case the testimony of ocular/material PWs is appreciated in isolation by the court without seeking corroboration from state agency there being no police investigation in the absence of the FIR and verdict is announced after due trial, either way believing or disbelieving the version of the complainant and the witnesses produced by him. On the same analogy, if we scrutinise the testimony of eye witnesses PW-1 & 2 here they have emerged as reliable PWs, who have corroborated each other on the aspect of place of occurrence and time of occurrence, involvement of vehicles of accused Mukesh and of deceased, existence of Chowmin Factory at the spot, arrival of PW-1 to the house of deceased few days back, about their Page 19 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 20 knowledge regarding few neighbourers whose house numbers are mentioned in the site plan. Identification mark of PW-1 is mentioned in his MLC and it cannot be said that this MLC was fabricated by the hospital authorities at the instance of the IO and if any such plea is raised by the accused, the onus is on them to prove the same. The objection of defence regarding absence of blood marks at the spot on occurrence can be met by testimony of PW-1, who admitted the suggestion given by the defence that it was a rainy day. Why this suggestion was given has not been explained but this suggestion goes against the accused himself since it is quite natural that rain washes the stain marks.
31. As regards the non-joining of public witnesses in the proceedings, in criminal trial it is the quality and not the quantity of evidence that is material and conviction can be made even on the testimony of the sole witness, if he is found reliable and unimpeachable. As such, non citing of persons from chowmin factory or from neighbourhood or the persons who took Satish to hospital, is of no consequence as it does not wash off the core of the prosecution version.
32. Both the accused persons are known to PW-2 being from the same mohalla. Accused Mukesh has admitted in his statement U/s. 313 Cr.P.C that he was residing at A-158, Mandawali at the relevant time. Even accused Jaspal has fortified vide his statement U/s. 313 Cr.P.C, this claim of accused Mukesh. It is the admitted case of the defence that Mukesh and Jaspal were related to each other as Jaspal was Jija (brother Page 20 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 21 in-law) of Mukesh. In these circumstances, even if the claim of accused Jaspal for a moment is believed that he was resident of Karol Bag( He did not produce any defence to support his claim), he had all the opportunity to remain present at house of his in-laws, where Mukesh was residing. Both PW-1 & 2 are categorical in implicating both the accused by name and by indicating their individual role. A suggestion has been given to PW-1 regarding the previous enmity and sudden quarrel. In this context PW-1 has stated in his cross-examination by defence that " it is correct that we have no earlier enmity with the accused persons" ; that " it is correct that the quarrel had taken place all of a sudden on the issue of removing the vehicle from the gali". In Criminal Jurisprudence accused can raise his probable defence by putting appropriate suggestions to PWs during their cross-examination or by leading defence evidence. It can be seen from the highlighted cross-examination of the PW above that accused persons wanted to bring on record that it is a case of sudden quarrel and the case is covered under exception-4 of section 300 IPC. If we view the entire evidence of all the ocular PWs and the officials witnesses, the only inference that can be deduced therefrom is that the incident took place at the spur of the moment on the issue of removal of the vehicle as narrated by the ocular PWs as also obliquely admitted by the accused persons through the highlighted suggestions thereby admitting the occurrence at the given spot on the issue of removing of the vehicle from the gali. As such, the discrepancies on the procedural aspect with regard to the events taking place after the occurrence cannot be given out of proportion importance so as to wash off the core of the prosecution case from its Page 21 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 22 substratum. Both the PW 1 & 2 are held to be reliable witnesses.
33. Ld. Defence counsel has vehemently pleaded that case of accused Mukesh, who as per prosecution version inflicted the fatal injury, is covered U/s. 304 IPC. In this context let us advert to relevant provisions to appreciate, if the case of accused Mukesh falls U/s. 304 IPC or not.
Section 299 Culpable Homicide reads as under:-
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide".
Explanation:-1 -
A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation:-2 -
Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation:-3 The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death or Page 22 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 23 a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
Section 304 mentions as under: Punishment for culpable homicide not amounting to murder:-
"Whoever commits culpable homicide not amounting to murder shall be punished with (imprisonment of life), or imprisonment of either description for a term which may extend to ten years, and shall be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death".
In case any of the exceptions is applied in the facts and circumstances of the case as mentioned in section 300 IPC then also offence converts into culpable homicide not amounting to murder.
Section 300 Murder mentions as under.
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to Page 23 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 24 whom the harm is caused, or-
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly- If the person committing the acts 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.
Exception:-1 When culpable homicide is not murder:-
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. The above exception is subject to the following provisos:-
First:-
That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly:-
That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly:-
That the provocation is not given by anything done in the lawful exercise or the right of private defence.
Explanation:-
Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.Page 24 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 25
Exception:-2 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.
Exception-3 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 ill-will towards the person whose death is caused.
Exception-4 Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation:
It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception:-5 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.Page 25 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 26
34. The contention of the defence is that admittedly the incident took place all of a sudden in a spur of moment on the question of removal of vehicle. In support of his contention Ld. Defence Counsel has relied on the following authorities, which are on the point of sudden quarrel and where more than one accused persons are there and role of one of accused is minor than the other.
1. 2009 (2) JCC 1257 titled Sripathi & Ors. Vs. State of Karnataka.
2. 1991 III AD (Cr.) S.C.561 titled Ramashish Yadav & Ors. Vs. State of Bihar.
3. 2001 II AD (Cr.) S.C. 593 titled Manubhai Chimanlal Senma (Senwa) and Ors. Vs. State of Gujrat.
4. 1982 CRI.L.J. 1253 titled Ram Karan & Others Vs. State of U.P.
5. 2002 I AD (Cr.) S.C. 501 titled Sukhbir Singh Vs. State of Haryana.
6. 2001 (1) JCC (SC) 235 titled Mithu Singh Vs. The State of Punjab.
7. 1998 (2) JCC (SC) 238 titled Badruddin Vs. State of Uttar Pradesh.
8. 204 (3) RCR (Criminal) titled Mool Chand Vs. State of Rajasthan.
9. 1991 SCC (Cri) 421 titled Nain Singh & Another Vs. State of U.P. On the other hand Ld. APP has also given authorities on the same point, which are reported in:-
1. 2009 I AD(Cr.) (S.C.) 295 titled Inder Pal Singh & Anr. Vs. State of U.P.
2. 2009 II AD (Cr.) (S.C.) 462 titled Baskar @ Kannan Vs. State of Tamil Nadu.Page 26 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 27
3. 2009 II AD (Cr.)(S.R) 289 titled Satvir Vs. State of Uttar Pradesh.
4. 2009 II AD (Cr.)(S.R) 225 titled Mukhtiar Singh & Anr. Vs. State of Punjab.
5. 2009 II AD (Cr.)(S.R) 248 titled Ashok Kumar Chaudhary & Ors. Vs. State of Bihar.
6. 2009 II AD (Cr.)(S.R) 254 titled Mukul Mahto & Ors. Vs. State of Jharkhand and Anr.
35. With due deference, there cannot be any dispute with regard to proposition of law relied by both sides but each case has its own peculiar facts and circumstances & there cannot be application of any straight jacket formula as no such formula exists to meet all the possible circumstances. As such, each case is required to be appreciated in the backdrop of its own peculiar facts and circumstances.
36. In this case it can be concluded that there was no premeditation before the commission of the offence and that the incident took place all of a sudden since deceased happened to be present in gali, in his Vikram and accused Mukesh incidentally came there in his TSR but can it be said that it was a fight? Fight implies mutual assault. It implies combat or contest, in which both parties participate, irrespective of how they fare in it. One-
sided attack cannot constitute a fight. In a sudden fight there is no previous deliberation or determination to fight and it implies mutual provocation and blows on each side. No exchange of blows took place in this case and victim was in the process of unloading bags of Maida as per Page 27 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 28 PW-1 when Mukesh duly armed with kitchen knife returned to the spot alongwith accused Jaspal and caught the victim unaware and inflicted knife blow on the asking of accused Jaspal on the vital part of his body.
37. In a decided case of sudden quarrel between the accused and the deceased, blows were exchanged and they were separated by people and thereafter, accused ran to his house, brought a deadly weapon and gave a blow on the vital part of the body of the deceased, who was standing unguardedly. The first part of the affair was held as sudden fight but the subsequent part of the affair, after the disengagement of the two parties, was held not to be a sudden fight. (Relied Lal Singh Vs. Crown 48 Cr. L.J 786; Sarjug Prasad Vs. State AIR 1959 Pat 66, 69, State of Madhya Pradesh Vs. Mangu Kisan AIR 1967 MP 167, 1966 Jab LT 1047, 1051). In another case titled Ashok Babu Mali Vs. State of Maharashtra AIR 1995 SC 944 when the accused suddenly came out of the house and stabbed deceased first on the back and when the deceased who was repairing the puncture actually in his bicycle turned, the accused stabbed him again in his chest, it was held that it could not be said that the fight was on when the injuries were caused because at that time the deceased was actually repairing the puncture in his bicycle,so Exception 4 to Section 300 IPC, was held as inapplicable.
38. The facts and circumstances of the present case also gives no hesitation in coming to the inference that the Exception 4 is inapplicable since deceased was unarmed and he even did not enter into any verbal Page 28 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 29 fight with the accused persons and he simply replied that he would remove his three wheeler after unloading but accused Mukesh pushed victim Satish in the nali by holding his neck and remarked that daily he parked the vehicle like this, saying so he went into his own house and returned to the spot carrying a knife with co-accused. So, accused had also acted in a cruel and unusual manner whereas victim was unguarded & unarmed. As per PW-1 only one or two maida bags were left for unloading , so it was in the knowledge of the accused that till the unloading is completely done victim would be available there, so within that short span of time, he immediately took the decision to do the act intended by him. Every man is in law deemed to know and to intend the natural and probable consequences of his act. In this case accused Mukesh is a major and sensible person, who caused injury with Kitchen Knife on the vital part of the victim i.e chest. In a case coming U/s. 300 IPC, the degree of probability of death is very great and certainly so, where death is the inevitable result of the intended injury whether the culprit intended death or not or even if he did not know that death would result, since clause 3rdly of section 300 IPC postulates 1st Part as subjective one, which indicates that injury must be an intentional one and not an accidental one and the 2nd part is objective in the sense that while looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death and these two parts are disjunctive and separate.
39. In this case accused Mukesh intended to inflict kitchen knife blow Page 29 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 30 on the vital part of the victim i.e his chest and the injury has been opined by the doctor as sufficient in the ordinary course of nature to cause death. Thus, plea of the defence that case of Mukesh comes U/s. 304 IPC is not tenable, if the case is viewed in its entirety. No other exception U/s. 300 IPC has been pleaded by defence. The recovered knife at the instance of accused Mukesh had blood stains of "B" group, as per FSL report and this blood group is the blood group of deceased, which is also reflected in the FSL report. It is unexpected that to fabricate the evidence to falsely implicate the accused persons, police will put the victim's blood on the recovered knife. Blood sample of deceased was taken and kept in sealed pullanda, in the hospital and was handed over to the police. At that time knife was not recovered whereas knife was got recovered by accused Mukesh subsequently, which was also sealed. Under these circumstances, the question of fabricating the evidence by introducing the knife with blood stains does not arise moreso, when a suggestion has been given to PW-1 whether there was any enmity or not between the parties, which has been categorically denied. In case titled 2000 (III) AD(Cr.) SC 477 Supreme Court titled State of Govt. of NCT Vs. Sunil & Anr., it was inter-alia observed in para 21 that " We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post- independent years but is is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that police records are untrustworthy.
Page 30 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 31As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But is is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettision such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions". In view of the discussion above, accused Mukesh is liable to be held guilty being prime offender for committing offence U/s. 302 IPC. Accused Mukesh is held guilty Us. 302 IPC.
40. As regards co-accused Jaspal, the prosecution version is that he came with accused from his house, at the spot and he exhorted Mukesh by saying " Mukesh Dekh Kya Raha Hai, Maar Sale Ko Chaku". Co-accused Mukesh accordingly inflicted injury to the victim with the help of kitchen knife. Now question to be determined is whether co-accused Jaspal was Page 31 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 32 aware that accused Mukesh will inflict the injury on the vital part of the body of victim since he did not say that Chaku Se Jaan Se Maar De. It might be that accused Jaspal helped accused Mukesh in settling score, so as to teach victim a lesson by not obstructing gali daily as deceased was required to keep his vehicle stationary there for quite some time for unloading maida for chowmin factory but that by itself does not ipso-facto implies that co-accused Jaspal shared common intention with accused Mukesh to kill Satish or any of the four clauses of Section 300 IPC is attracted due to his such act of inciting the accused or in catching hold of the victim. However, by asking accused Mukesh to give knife injury, at least accused Jaspal was having knowledge that with the use of knife on any vital part of the body of the victim, he would sustain injury, which may likely to cause his death, so his case falls U/s. 304 part II instead of section 302/34 IPC. Both accused persons are also convicted U/s. 323/34 IPC as PW Bohri Lal was given beatings by both the accused.
41. I therefore, convict accused persons as under. Accused Mukesh is convicted U/s. 302 IPC and U/s. 323/34 IPC. Accused Jaspal is acquitted U/s. 302/34 IPC instead convicted U/s. 304 part II IPC and U/s. 323/34 IPC.
Announced in open Court ( REENA SINGH NAG)
Dt: 03.06.09 ASJ-2(EAST)KKD
Delhi.
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IN THE COURT OF MS. REENA SINGH NAG
ADDL.SESSIONS JUDGE-2 (EAST), KKD, DELHI
SC No.169/04
FIR No. 337/03
PS. Mandawali
U/s.302/34 IPC
St. Vs. Mukesh Singh
etc.
ORDER ON SENTENCE
1. I have heard Ld. APP, Ld. Counsel Sh. Rakesh Kochar and both the convicts individually on the quantum of sentence.
2. Convict Mukesh is aged 30 years. He has studied up to 10th.
He is unmarried and in his family he is having two younger brothers and one elder brother, who is aged about 32 years. He was a salesman and earning Rs.3,000 to 3,500/- pm before being sent to JC. There is no previous conviction against him. He is presently taking treatment from IHBAS for his headache.
3. Convict Jaspal is aged 30 years and is married. He is having in his family homely wife, three children aged 13 years, 12 years and 6 years & widow mother. His wife and children are presently being looked after by his mother in-law whereas his Page 35 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 36 mother is living with his uncle (chacha) since there is no male family member to look after them. He is 5th pass. He was doing private job with distributor of Britania Company and thereby earning Rs. 3,000/- pm before being sent to JC. He is in JC since 15.09.03. There is no previous conviction against him.
4. Ld. Counsel Sh. Rakesh Kochar has moved an application for releasing convict Jaspal on probation, however I do not find any mitigating circumstances for releasing the convict Jaspal on probation, as such prayer is declined.
5. In view of the authority reported in 2008 III AD (Cr.) 50 titled Prajeet Kumar Singh Vs. State of Bihar, wherein reference was made to judgments of Hon'ble Apex Courts in Bachan Singh Vs. State of Punjab (1980) 2 SCC 684( a Constitution Bench decision) and in Machhi Singh and Ors. Vs. State of Punjab (1983) 3 SCC 470 (a three Judges Bench decision), in my considered view this case does not fall in the category of rarest of rare cases. In the obtaining facts and circumstances, I sentence both the convicts as under.
U/s. 302 IPC convict Mukesh is sentenced to undergo rigorous imprisonment for life and sentenced to pay a fine of Rs. 1,000/-. In default of payment of fine he will further Page 36 of 38 FIR No. 337/03, PS Mandawali, St. Vs. Mukesh Singh etc. 37 undergo SI for 1 month.
U/s. 304 part II convict Jaspal is sentenced to undergo 6 years rigorous imprisonment and fine of Rs. 50,000/-. Out of Rs. 50,000/- Rs.
40,000/- shall go to the legal heirs of the deceased after period of appeal is expired. In default of payment of fine he will further undergo SI for 3 month.
U/s. 323/34 IPC both the convicts are sentenced to rigorous imprisonment of 1 year.
6. Benefit of section 428 Cr.P.C shall be given to the convicts as per law. All the sentences shall run concurrently. Copy of Judgment and this order be given to the convicts free of cost. The file be consigned to record room.
Announced in open Court ( REENA SINGH NAG)
Dt: 06.06.09 ASJ-2(EAST) KKD,
Delhi
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