Delhi District Court
Whether Jitender S/O Shri Bhure Singh vs Govinda (1877) Ilr 1 Bom on 30 November, 2017
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE (PILOT COURT)
WEST: TIS HAZARI COURTS: DELHI
SC No.84/17
FIR No. 453/2016
U/s. 302 IPC
P.S Nangloi
In the matter of :
State
versus
Ashok Kumar
S/o Shri Rambir Singh
R/o H.No.A-192, Jat Chowk,
Nangloi, Delhi.
Permanent Address:
Village Khaspur, Tehsil &
Police Station Sikandrarau,
District Hathras, U.P.
Date of Institution : 06-02-2017
Date of reserving Judgment : 14-11-2017
Date of pronouncement : 30-11-2017
Appearances
For the State : Ms. Reeta Sharma,
Additional Public Prosecutor.
For the Accused : Shri V.S. Baghel, Advocate.
Sessions Case No.84/2017 Page 1/48
JUDGMENT
1. Accused namely Ashok Kumar son of Shri Rambir Singh, aged about 19 years, was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) i.e Charge-sheet, submitted on 24-01-2017 upon conclusion of investigation into First Information Report (FIR) no. 453/2016 of police station (PS) Nangloi for the offence punishable under Section 302 of the Indian Panel Code, 1860 (IPC). Prosecution Version
2. In brief, the case of the prosecution is that on 26.10.2016, a quarrel took place between accused and Jitender (deceased) during which accused gave repeated fist blows to the deceased, who fell down on the road and expired due to consequent injury to his lungs.
3. According to the chargesheet, on 26.10.2016, on receiving DD No. 57A regarding quarrel infront of Satyabhama hospital, Sub Inspector (SI) Prem Yadav alongwith Head Constable (HC) Kapil Dev reached at the spot near Agrawal Sweets, Jat Sessions Case No.84/2017 Page 2/48 Chowk Wali Gali. On inquiry, they came to know that the injured has been removed to Sanjay Gandhi Memorial (SGM) hospital through ambulance and the person who had beaten the injured was present at the spot whose name was revealed as Ashok Kumar S/o Rambir Singh. SI Prem Yadav left for the hospital leaving accused Ashok Kumar in the custody of HC Kapil Dev. On reaching the hospital, SI Prem Yadav came to know the name of the injured as Jitender who was declared 'brought dead' by the doctor. SI Prem Yadav collected the MLC of Jitender (deceased) and got the dead body preserved in the mortuary. Thereafter, SI Prem Yadav returned to the place of occurrence where he met with eye-witness to the incident namely Rajesh Son of Sh. Chattarpal and recorded his statement.
4. Complainant Rajesh stated in his statement that he would sell golgappe (waterballs) on rehri (handcart) at Nangloi and Jitender (deceased) also had his rehri (handcart) for selling golgappe (waterballs) near him at Krishna Mandir. Complainant further stated that on 26.10.2016 at about 11 p.m, one boy who used to sell coconuts on rehri (handcart) was coming from Agrawal Sweets Sessions Case No.84/2017 Page 3/48 shop side where the complainant was filling up water. At the same time, Jitender (deceased) who was going to dump garbage carrying a garbage tin box (canister), came in front of the rehri (handcart) of the accused on which an altercation took place between both of them. Accused caught Jitender (deceased) by his collar and started giving him fists blows. Jitender (deceased), in order to save him, hit the accused with garbage tin box (canister) which enraged the accused who stated that he would kill him (Jitender) and started giving him fists blows on his stomach due to which Jitender (accused) fell down and died due to the beatings given by the accused. Thereafter, one ambulance came at the spot and took Jitender (deceased) to SGM hospital.
5. Having recorded the statement of Rajesh, SI Prem Yadav made endorsement thereon, prepared Tehrir and sent the same through HC Kapil Dev to the police station for registration of the FIR. SI Prem Yadav prepared the rough site plan and seized the rehri as well as the garbage tin box (canister).
6. After registration of the FIR, the investigation of the case was handed over by the Sessions Case No.84/2017 Page 4/48 SHO to SI Prem Yadav, the Investigation Officer (I.O). Initially, SI Prem Yadav apprehended Ashok Kumar in the presence of his brother Vinod Kumar as he stated his age to be 17 years. Crime team also reached at the spot which inspected the spot and took photographs of the place of occurrence from different angles. Juvenile in Conflict with Law (JCL) Ashok Kumar was produced before the Juvenile Justice Board (JJB) and was sent to OHB remand. Latter, I.O verified the age of the JCL and procured his age verification documents from the Principal of the school attended by him, according to which, date of birth of the JCL was 05.08.1997 and therefore, he was found to be major on the date of offence. Accordingly, JCL was directed to be produced before the courts at Tis Hazari.
7. During the investigation, I.O recorded the statement of the witnesses and collected the postmortem examination report according to which cause of death was opined to be "death due to shock as a result of lung injury due to blunt force/object impact", the viscera was preserved to rule out any intoxication.
Sessions Case No.84/2017 Page 5/488. After concluding the investigation, the I.O came to a conclusion that sufficient evidence were collected against the accused Ashok Kumar qua commission of offence under Section 302 IPC and thereafter, he prepared chargesheet and filed in the court on 24.01.2017.
9. On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate (West), Tis Hazari Courts took cognizance of offence under Section 302 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 02-02-2017 committed the case to the Court of Session for 06-02-2017.
Charge
10. On 06.02.2017, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused, charge was framed against the accused for commission of offence punishable under Section 302 IPC. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial.
Sessions Case No.84/2017 Page 6/48Prosecution Witnesses
11. To bring home the afore-mentioned charge to the accused, the prosecution got examined Shri Rajesh (PW-1), Shri Satpal (PW-2), Shri Mukesh, (PW-3), constable Krishan Kumar (PW-4), Dr. Anurag Thapar (PW-5), ASI Matadin (PW-6), H.C Kapil Dev (PW-7), ASI Bhagwati Prasad (PW-8), Constable Satish (PW-9), and SI Prem Yadav (PW-10).
12. During the course of trial, vide order dated 26.05.2017, learned Counsel for the accused made statement under Section 294 Cr.P.C thereby admitting the genuineness of documents i.e dead body identification statement (Ex.PX-1) of Sh.Bhure S/o Sh. Shyam Lal, Scene of Crime Report (Ex.PX-2), MLC (Ex.PX-3), Certificate as well as affidavit (Ex.PX-4) collectively, both dated 23.11.2016, issued by Principal MC Primary Boys School, Nangloi and Scaled Site Plan (Ex.PX-5). Accordingly, prosecution witnesses namely Shri Bhure S/o Shyam Lal, SI Devender of Crime Team, Dr. Ankesh Singh and Dr. Vipin Dabas, CMO, Sanjay Gandhi Memorial Hospital, Ms. Ajender Kaur, Principal, MC Primary School Boys School, Sessions Case No.84/2017 Page 7/48 Nangloi and Om Prakash, Assistant Draftsman were dropped from the list of witnesses. Documentary Evidence
13. The prosecution also relied on following documents tendered into evidence i.e statement of Rajesh (Ex.PW-1/A), Site Plan (without scale) (Ex.PW-1/B), seizure memo of garbage tin box (Ex.PW-1/C), seizure memo of Rehri (handcart) (Ex.P-1), Garbage (Ex.P-2), statement of Mukesh (Mark PW-3/A) inquest papers to perform the autopsy on the body of the deceased (PW-5/A), postmortem examination report (Ex.PW-5/B), FIR (Ex.PW-6/B), endorsement on Rukka (Ex.PW-6/B), certificate under Section 65-B of Indian Evidence Act (Ex.PW-6/C), apprehension memo (Ex.PW- 7/A), personal search memo (Ex.PW-7/B), disclosure statement (Ex.PW-7/C), seizure memo of viscera (Ex.PW-8/A), photographs (Ex.PW-9/A-1 to Ex.PW-9/A-6), negatives (Ex.PW-9/B1 to Ex.PW-9/B-6), DD Entry No.57A (Ex.PW-10/A), Rukka (Ex.PW-10/B), social background report (Ex.PW-10/C), dead body identification statement (Ex.PW-10/D), death report (Ex.PW-10/E), handing over memo of dead body (Ex.PW-10/F), report Sessions Case No.84/2017 Page 8/48 regarding age verification of JCL Ashok Kumar (Ex.PW-10/G), copy of order dated 24.11.2016 of learned Principal Magistrate, JJB-I (Ex.PW-10/H), request for 14 days J.C remand (Ex.PW-10/I), DD Entry No. 58-A (Ex.PW-10/J), DD Entry No.9-A (Ex.PW-10/K), application for submitting FSL report (Ex.PW-10/L), FSL report (Ex.PW-10/M), forwarding letter (Ex.PW-10/M1), dead body identification (PX-1), scene of crime report (PX-2), MLC (PX-3), certificate and manual affidavit (Ex.PX-4 collectively) and site plan (PX-5). Statement of Accused
14. After conclusion of prosecution evidence, on 15.09.2017, statement of the accused Ashok Kumar under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he was falsely implicated in the present case.
Accused Ashok Kumar stated that no quarrel took place between him and Jitender (deceased), rather the quarrel took place between Rajesh and Jitender (deceased) who forcibly pushed Jitender (deceased) towards his Rehri (handcart) who Sessions Case No.84/2017 Page 9/48 collided with his Rehri (handcart) and fell down. Accused further stated that he called his brother namely Vinod to help Jitender (deceased) and also got him admitted in Satyabhama Hospital.
15. The accused Ashok Kumar also led evidence in his defence and got his brother Vinod Kumar examined as DW-1 and his cousin brother Manish as DW-3. He also got examined Danveer Singh (DW-2), Record Clerk of Satyabhama Hospital.
Final Arguments
16. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State and Shri V.S Baghel, learned Counsel for accused. I also perused the entire material available on record.
17. During the course of arguments, learned Additional Public Prosecutor submitted that the case of the prosecution is based on the eye-witness testimony of Rajesh (PW-1), who witnessed the quarrel between the accused and the deceased. Mukesh (PW-3) had also witnessed the occurrence who did not support the case of the prosecution while deposing in the court in its entirety, but his Sessions Case No.84/2017 Page 10/48 testimony can also be looked into to corroborate the prosecution version. She further argued that the presence of the accused as well as the eye- witnesses at the spot on the relevant date and time has not been disputed. The factum of quarrel taking place at the spot wherein the deceased had suffered injuries resulting into his death is also not in dispute. Further, as per the postmortem examination report, seventh rib of the deceased was fractured which also contused the lower lobe of left lung and Dr. Anurag Thaper (PW-5) who conducted the postmortem examination on the body of the deceased, opined the cause of death to be shock as a result of lung injury consequent upon blunt force/object impact. The lung injury was found to be sufficient to cause the death in ordinary course of nature. She further argued that PW-5 was cross- examined in one line only wherein he did not say if the said injury was not possible by fist blows. Learned Prosecutor further argued that the defence put forward by the accused is contradictory in nature and cannot be believed. There are no material contradictions in the testimonies of all the prosecution witnesses and therefore, the Sessions Case No.84/2017 Page 11/48 prosecution established its case beyond all reasonable doubts against the accused.
18. Per contra, learned Counsel for the accused argued that the testimony of Rajesh (PW-1) is not believable as he improved upon his earlier version while deposing in the court. Further, one of the proposed eye-witness namely Mukesh (PW-3) turned hostile and did not support the prosecution case. The testimonies of prosecution witnesses are full of contradictions and H.C Madan who was also present on the spot, was not made a witness in the present case which raises doubt. He further argued that the prosecution could not establish that the deceased expired on the spot due to the injuries inflicted by the accused as the prosecution witnesses referred the deceased to be injured while being taken to the hospital. In view of the contradictory statements of the prosecution witnesses and defective investigation conducted by the I.O., it can be said that the prosecution failed to discharge the onus placed on it for proving the case beyond reasonable doubts, entitling the accused to be acquitted.
Sessions Case No.84/2017 Page 12/4819. I have given my thoughtful consideration to the submissions advanced on both sides. Statutory Provisions
20. The substantive offence i.e. Section 302 IPC, which the accused has been charged with is referred as under:
302. Punishment for Murder- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
21. The relevant part of Section 300 IPC which defines 'Murder' reads as follows:
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or - Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.
Sessions Case No.84/2017 Page 13/4822. Further, the relevant part of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:
299. Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
Points for Determination:
23. In view of the above-mentioned provision of law and the submissions advanced on both sides, following points for determination are emerging in the present case :-
1. Whether Jitender S/o Shri Bhure Singh R/o Village Monpura P.S Ramghat Tehsil Dibai District Bulandsahar died on 26.10.2016?
2. Whether Jitender (deceased) sustained injuries on his person which resulted in his death ?
3. Whether the accused was responsible for causing injuries to Jitender (deceased)?
4. Whether the accused committed any offence? If so, what offence?Sessions Case No.84/2017 Page 14/48
Testimonies of prosecution witnesses:
24. To prove the afore-mentioned charge against the accused, the prosecution got examined 10 witnesses in all. The testimonies of the prosecution witnesses are referred as under :
25. Shri Rajesh (PW-1) deposed that Jitender (deceased) was his nephew who had come to reside with his uncle (Fufaji) namely Satpal and used to help his uncle in selling golgappe (waterballs) on rehri (handcart) in front of Krishna Mandir, Nangloi. Accused Ashok Kumar used to sell coconuts at Nangloi crossing. PW-1 further deposed that on 26-10-2016, at about 11 p.m, accused was taking his rehri (handcart) from Nangloi crossing, when Jitender (deceased) who was carrying garbage tin box (canister) came infront of him, due to which, an altercation ensued between them and accused started giving him fists blows on his rib area. PW-1 deposed that due to the beatings, Jitender (deceased) fell down on the road. PW-1 further deposed that the police was informed and Jitender (deceased) was taken to SGM hospital. PW-1 further stated that his statement Ex.PW-1/A Sessions Case No.84/2017 Page 15/48 was recorded by the police. PW-1 also stated that accused was apprehended at the spot by the police. PW-1 correctly identified the accused in the court and his rehri (handcart) Ex.P-1 and garbage tin box Ex.P-2.
26. Shri Satpal (PW-2) deposed that he used to sell golgappe (waterballs) on a rehri (handcart) near Krishna Mandir, situated at Najafgarh road. On 26-10-2016, at about 11 a.m, when PW-2 was present at his house, he received a telephonic call from Mukesh who worked at his rehri (handcart) alongwith the son of his brother-in-law (saala) namely Jitender that a quarrel had taken place between accused Ashok and Jitender, and accused Ashok had given him beatings due to which Jitender had become unconscious. PW-2 immediately reached at the spot where Jitender was lying unconscious. PW-2 made a call on 100 number. Ambulance took Jitender to the SGM Hospital where he was declared 'brought dead'. PW-2 correctly identified the accused Ashok Kumar in the court.
27. Shri Mukesh (PW-3) deposed that he used to reside in Delhi with Satpal who was his brother as Sessions Case No.84/2017 Page 16/48 per village relations. He alongwith Jitender (deceased) used to run rehri (handcart) of golgappe (waterballs), near Krishna Mandir. PW-3 further deposed that on 26.10.2016, he and Jitender (deceased) were present at the rehri (handcart) and at about 11/11.30 p.m, Jitender (deceased)had gone to throw garbage at some distance. PW-3 heard some noise and Rajesh called him in loud voice. He saw Jitender (deceased) was lying on the ground and accused Ashok was pressing his body. PW-3 made a call and informed Satpal. He alongwith Satpal took Jitender (deceased) to Satyabhama Hospital where the doctors refused to admit him. PW-3 further deposed that thereafter, he went to his house. PW-3 correctly identified accused Ashok Kumar, rehri (handcart) Ex.P-1 and garbage tin box Ex.P-2.
28. As Mukesh (PW-3) resiled from his previous statement given to the IO, learned Additional Public Prosecutor cross-examined PW-3 after taking permission from the court. In his cross- examination by the learned Prosecutor, PW-3 stated that accused Ashok was not known to him prior to the date of incident. He denied the suggestion that Sessions Case No.84/2017 Page 17/48 he was inquired by the police during investigation or his statement was recorded wherein he had described the incident witnessed by him. PW-3 was confronted with his statement Mark PW-3/A from point A to A which he denied. On further cross-examination by the learned Prosecutor, PW-3 admitted that from the place of occurrence Jitender (deceased) was taken to Sanjay Gandhi Hospital through ambulance where he was declared 'brought dead'. PW-3 also stated that his statement recorded in his examination-in-chief that he had taken Jitender (deceased) to Satyabhama Hospital alongwith other persons and from there he had gone to his house, was correct.
29. Learned Defence Counsel also cross- examined PW-3 wherein he stated that when he reached near Jitender, Rajesh, accused and brother of the accused were present. Accused and his brother had accompanied them when Jitender was taken to Satyabhama Hospital. PW-3 further stated that Jitender remained in Satyabhama Hospital for 10 to 15 minutes. However, he could not state if Jitender was alive when he was taken to Satyabhama Hospital.
Sessions Case No.84/2017 Page 18/4830. Constable Krishna (PW-4) deposed that on 27.10.2016, he was posted at police station Nangloi. On that day, at about 3 a.m., Duty Officer ASI Matadin gave him copies of FIR for their transmission to senior officers as well as Area M.M.. PW-4 accordingly went to the house of ACP, DCP, Joint C.P and learned M.M and submitted the copies of the FIR.
31. Dr. Anurag Thapar (PW-5), Senior Resident, deposed that on 27.10.2016, at about 12.45 p.m, he conducted the postmortem examination on the dead body of one Jitender S/o Sh. Bhure Singh, Male, aged 16 years. The dead body was duly identified and was sent with inquest papers Ex.PW-5/A. PW- 5 stated that after internal and external examination of the dead body, he prepared postmortem examination report Ex.PW-5/B. PW-5 further stated that there was no external injury, but there were fracture in seventh left rib with blood extravasation in the surrounding tissues alongwith 0.5 litre of fluid and clotted blood in pleural cavity and left lung lower lobe was found contused. PW-5 further stated that as per his opinion, the death was due to shock as a result of lung injury caused by Sessions Case No.84/2017 Page 19/48 blunt force/object impact. The lung injury was sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem. Viscera was preserved to rule out any intoxication which was sealed and handed over to the I.O alongwith inquest papers Ex.PW-5/A, sample seal, sealed clothes of the accused, sealed blood samples of the deceased on gauze piece and nail clipping.
32. ASI Matadin (PW-6) deposed that on 27.10.2016 at about 2 a.m., he had received rukka brought by H.C Kapil for registration of FIR. PW-6 further deposed that he registered the FIR No.453/2016 Ex.PW-6/A and made endorsement Ex.PW-6/B on rukka. He also produced certificate under Section 65-B of the Indian Evidence Act Ex.PW-6/C.
33. H.C Kapil Dev (PW-7) deposed that on 26- 10-2016, he was on emergency duty from 8 p.m to 8 a.m at police station Nangloi and at about 11 p.m on receiving DD No.57 A, he accompanied SI Prem Yadav to the place of occurrence situated near Agarwal Sweets, Jat Chowk Wali Gali. PW-7 further deposed that they came to know that the injured had already been removed to SGM hospital Sessions Case No.84/2017 Page 20/48 through an ambulance. PW-7 remained at the spot as per the directions of SI Prem Yadav where accused Ashok Kumar and his brother Vinod Kumar were present. PW-7 deposed that at about 1/1:30 a.m, SI Prem Yadav returned at the spot and took the accused Ashok Kumar in custody as injured Jitender had died. IO/SI Prem Yadav recorded the statement of eye-witness Rajesh on the spot and prepared rukka and handed over the same to him for registration of the FIR. PW-7 took the rukka to Police Station Nangloi to get the FIR registered and returned to the spot with original rukka and copy of the FIR. SI Prem Yadav prepared the site plan Ex.PW-1/B, seized the rehri of the accused vide seizure memo Ex.PW-1/D and garbage container vide memo Ex.PW-1/C. PW-7 further deposed that accused stated himself to be 17 years old. SI Prem Yadav prepared apprehension memo Ex.PW-7/A and personal search memo Ex.PW-7/B. PW-7 further deposed that SI Prem Yadav recorded the disclosure statement Ex.PW- 7/C of JCL in his presence. PW-7 correctly identified the accused in the court and also identified the garbage tin box as Ex.P-2.
Sessions Case No.84/2017 Page 21/4834. ASI Bhagwati Prasad (PW-8) deposed that he alongwith constable Satyawan had gone to the mortuary of SGM hospital on 27.10.2016 on the directions of SHO and made application Ex.PW- 5/A for performing autopsy on the dead body of Jitender Son of Bhure Singh. PW-8 further deposed that after the postmortem examination, viscera and the clothes of the deceased etc. were handed over to him in sealed condition alongwith sample seal of the mortuary which he took to police station Nangloi and gave the same to SI Prem Yadav who seized the same vide seizure memo Ex.PW-8/A.
35. Constable Satish (PW-9) deposed that he was posted as photographer with Mobile Crime Team of West District on 27.10.2017 and had gone alongwith the incharge to the place of occurrence Agarwal Sweets, Jat Chowk Wali Gali, Mangolpuri. PW-9 took 6 photographs Ex.PW-9/A1 to Ex.PW- 9/A6 and also produced the negatives Ex.PW-9/B1 to Ex.PW-9/B6.
36. SI Prem Yadav (PW-10), the I.O of the case, deposed that on 26.10.2016, at about 11.30 p.m on receiving DD No.57-A regarding a quarrel in front of Satyabhama Hospital, he alongwith HC Kapil Sessions Case No.84/2017 Page 22/48 proceeded to the spot. On reaching at the spot, PW-10 came to know that the injured had already been taken to SGM hospital through ambulance. PW-10 stated that accused Ashok Kumar was present on the spot and he handed over the custody of the accused to HC Kapil and proceeded to SGM hospital, where he obtained the MLC of Jitender who was declared 'brought dead'. PW-10 got persevered the dead body in the mortuary. PW-10 returned to the spot where he recorded statement Ex.PW-1/A of one eye-witness namely Rajesh. PW-10 prepared the Tehrir Ex.PW-10/B and gave the same to HC Kapil for registration of the FIR. PW-10 also seized the empty canister (pipa) vide seizure memo Ex.PW-1/C and rehri belonging to the accused vide seizure memo Ex.PW-1/D. PW-10 also prepared the site plan Ex.PW-1/B at the instance of complainant. PW-10 further deposed that on interrogation, accused Ashok told him that he was minor, hence, he apprehended the accused vide apprehension memo Ex.PW-7/A. His personal search was conducted vide memo Ex.PW-7/B. PW-10 also proved social background report of JCL Ex.PW-10/C. Further, PW-10 called the crime team Sessions Case No.84/2017 Page 23/48 on the spot. He witnessed the inspection report Ex.PX2 photographs Ex.PW-9/A-1 to Ex.PW-9/A6 of the place of occurrence were taken. PW-10 also recorded statement of the witnesses and deposited the exhibits in the Malkhana of police station Nangloi. PW-10 further proved dead body identification statement Ex.PW-10/D (PX-1), Form No.25.35 (1) (B) Ex.PW-10/E and receipt of dead body Ex.PW-10/F.
37. PW-10 further deposed that he took JCL Ashok Kumar to Juvenile Justice Board (JJB) from where he was sent to observation home. During the investigation, PW-10 got verified the age of the JCL in which he was found to be of more than 18 years of age on the date of incident. PW-10 submitted the said verification report Ex.PW-10/G before the JJB which passed order Ex.PW-10/H whereby custody of the accused was transferred from JJB to concerned learned Metropolitan Magistrate at Tis Hazari Courts. PW-10 got exhibited photocopies of school record of the accused as Ex.P-X-4 collectively. PW-10 got J.C remand of the accused Ex.PW-10/I. Sessions Case No.84/2017 Page 24/48
38. PW-10 further deposed that he sent the exhibits to FSL, collected the postmortem examination report Ex.PW-5/B and got the site plan Ex.P-X-5 prepared through Draftsman. PW-10 further deposed about DD No.58 A dated 26.10.2016 Ex.PW-10/J, DD No.9A dated 27.10.2017 Ex.PW-10/K, the application for filing FSL report Ex.PW-10/L, FSL report Ex.PW-10/M and forwarding letter Ex.PW-10/M1. PW-10 correctly identified the accused in the court, garbage tin box (pipa) Ex.P-2 and rehri (handcart) Ex.P-1.
39. The testimonies of defence witnesses are also referred as under:
40. Vinod Pal (DW-1) deposed that he and Manish,the son of his maternal uncle and accused were having rehris for selling fruits. On 26.10.2016 at about 10.30 p.m, when they were returning to their house, they saw a quarrel between Rajesh and Jitender (deceased). DW-1 stated that he did not intervene in the beginning and proceeded further. DW.1 stated that Manish called his name and told that the boy has fallen unconscious. DW-1 immediately went there and saw Jitender lying in Sessions Case No.84/2017 Page 25/48 unconscious state and Ashok (accused) was rubbing his chest. DW-1 also rubbed the foot of Jitender after removing his slippers. Jitender regained consciousness and Rajesh sprinkled water on his face. DW-1 further deposed that Rajesh put some water into the mouth of Jitender who became unconscious thereafter. DW-1 stated that he and Ashok (accused) carried Jitender upto the distance of 100 metres and thereafter with the help of rider of two wheeler scooter, they took him to Satyabhama Hospital. DW-1 further deposed that relatives of Jitender also came to Satyabhama Hospital. They could not deposit a sum of Rs.40,000/- demanded by the hospital. DW-1 called an ambulance at Satyabhama Hospital and accompanied Jitender to SGM hospital where he was admitted. DW-1 further deposed that the police came at the hospital and made enquiries from him. DW-1 further deposed that he went to police station Nangloi on 27.10.2016 to meet Ashok (accused), but he was not allowed to meet him. In the morning, DW-1 was directed to produce his rehri which was seized by the police.
Sessions Case No.84/2017 Page 26/48DW-1 also stated that police officials had detained Rajesh and Ashok in Satyabhama Hospital.
41. Shri Danveer Singh (DW-2), Medical Record Clerk, Satyabhama Hospital deposed that as per the hospital record, no patient by the name of Jitender S/o Bhure Lal was admitted in the hospital on 26.10.2016.
42. Shri Manish (DW-3) deposed that accused Ashok is his cousin brother who is the son of his Bua (father's sister). Vinod Kumar is the real brother of Ashok. DW-3 stated that they used to sell fruits on rehri at crossing situated near police station Nangloi. On 26.10.2016, DW-3 alongwith Vinod and Ashok (accused) with their rehri were going to their house after finishing their work from Nangloi Chowk. When they were at the turn of Nangloi hospital, a quarrel was going on between Rajesh and Jitender. Rajesh pushed Jitender who fell on the road after hitting the rehri. Accused Ashok opened the buttons of shirt of Jitender. DW- 3 called Vinod who came there and gave massage on the feet of Jitender after removing his slippers. Jitender regained consciousness at that time and Rajesh put water in his mouth. Thereafter, Vinod Sessions Case No.84/2017 Page 27/48 and Ashok took Jitender to the hospital. DW-3 left the place and took the rehri of the accused to the house. DW-3 further deposed that at about 3 a.m., Vinod came to the house from hospital and told him that accused Ashok was taken by the police from the hospital. At about 8:00 a.m., police officials made a call to Vinod and asked him to bring rehri of accused Ashok to the police station. Vinod took the rehri of accused Ashok to the police station.
Analysis Points for determination nos. 1 and 2 :
43. In view of the oral as well as documentary evidence led by the prosecution as mentioned above, it is established that Jitender Son of Bhure Singh R/o village Monpura PS Ramghat Tehsil Dibai District Bulandsahar, U.P expired on 26.10.2016. His dead body was identified by his father Sh. Bhure vide identification statement Ex.PX-1. As per the postmortem examination report Ex.PW-5/B which was proved by Dr. Anurag Thapar (PW-5), there was no external injuries on the body of the deceased. However, his 7th left rib was fractured and his left lung lower lobe was Sessions Case No.84/2017 Page 28/48 contused. PW-5 opined the cause of death to be due to shock as a result of lung injury which was due to blunt force/object impact. The lung injury was found sufficient to cause the death in ordinary course of nature. The injury was also found to be ante-mortem in nature. Both points for determination nos. 1 and 2 are decided accordingly.
Point for determination no.3:
44. The case of the prosecution is predicated upon the eye-witness account of Rajesh (PW-1). As per the testimony of Rajesh (PW-1) on 26.10.2016, at about 11 p.m, when the accused was taking his rehri (handcart) from Nangloi crossing towards his house, Jitender (deceased) was going to dump the garbage while carrying a garbage tin box (canister). PW-1 further deposed that a quarrel started between the accused and the deceased when he passed from in front of rehri (handcart) of the accused. PW-1 further deposed that during the said quarrel, accused caught hold of Jitender and gave repeated fist blows on his ribs area due to which Jitender had fallen down on the road. Further, PW- 1 reached there and caught hold of the accused. He Sessions Case No.84/2017 Page 29/48 also made a call to Satpal who arrived at the spot and called the police at 100 number.
45. In his cross-examination, PW-1 stated to know Jitender (deceased) who also belonged to his village. PW-1 was filling water from a water tap situated near the garbage dump, when Jitender (deceased) had come to throw the garbage. He also deposed about the distance between his rehri (handcart) and the rehri (handcart) of Jitender (deceased) to be about 50 meters. The accused had also put his rehri (handcart) on that day. PW-1 further stated about the shop in the name and style of Agarwal Sweets which was situated at the opposite side of the garbage dump.
46. On perusal of the entire testimony of Rajesh (PW-1), there is no doubt that both the accused and Jitender (deceased) were present on the scene of occurrence on 26-10-2016, at about 11 p.m. It is also established that a quarrel had taken place between the accused and Jitender (deceased) (testimonies of Defence Witnesses in this regard would be discussed a bit later). Rajesh (PW-1) was acquainted with Jitender (deceased) as both belonged to the same village. There was not much Sessions Case No.84/2017 Page 30/48 distance between the spot where Rajesh (PW-1) was present and the spot where the quarrel took place between the accused and Jitender (deceased).
There was no obstruction in between and the place of occurrence was within sight of Rajesh (PW-1). The deposition of Rajesh (PW-1) with regard to there being a quarrel between the accused and the deceased and the accused giving repeated fist blows on the person of Jitender (deceased), could not be controverted in his cross-examination. PW-1 also duly identified rehri (handcart) Ex.P-1 belonging to the accused and garbage tin box Ex.P-2 which was being carried by Jitender (deceased). PW-1 had also witnessed the seizure memo of garbage tin box Ex.PW-1/C and seizure memo of rehri (handcart) Ex.PW-1/D besides witnessing the site plan Ex.PW-1/B.
47. As far as the testimony of Mukesh (PW-3) is concerned, though he did not support the prosecution case in its entirety, he admitted that Jitender was taken to Satyabhama Hospital from the place of occurrence. PW-3 also deposed about the presence of Jitender (deceased), Rajesh (PW-1), accused and his brother at the spot at that time.
Sessions Case No.84/2017 Page 31/4848. Now, coming to consider the defence taken by the accused in the present case, it is noticed that initially, the accused took a defence that near the place of occurrence there was a garbage dump (kuda khatta). A water tap was also situated near it. When Jitender (deceased) had gone to throw the garbage at the said garbage dump, carrying the garbage in a tin canister (Pipa), Rajesh (PW-1) who was filling water from the said tap, threw some water on Jitender, in a lighter vein and to avoid the water, Jitender (deceased) suddenly came infront of the rehri (handcart) of the accused and hit against it. Consequently, Jitender fell down on the road and suffered an epileptic attack. This line of defence was put to Rajesh (PW-1) during his cross- examination. However, subsequently, accused did a volte-face in proposing a defence to SI Prem Yadav (PW-10) that there was a quarrel going on between the Jitender (deceased) and Rajesh (PW-1) and Rajesh pushed Jitender with force whereby Jitender struck against the rehri of the accused and in order to save Rajesh (PW-1), IO falsely implicated accused for extraneous consideration. In his statement recorded under Section 313 Cr.P.C Sessions Case No.84/2017 Page 32/48 also, the accused stated that there was no quarrel between him and Jitender but it was Rajesh who had quarrelled with Jitender and pushed him due to which Jitender collided with his rehri and had fallen down.
49. The accused got examined his real brother Vinod Pal (DW-1) and cousin brother Manish (DW-
3) in his defence alongwith one Shri Dan Veer Singh (DW-2) Medical Record Clerk from Satyabhama Hospital.
50. As is clear from the testimony of Rajesh PW- 1, any such quarrel between him (Rajesh) and Jitender (deceased) was not suggested to him during his cross-examination. In fact, the purported defence was not put to any other prosecution witnesses except SI Prem Yadav (PW-10), IO of the case. There is no explanation furnished by the accused in his statement recorded under Section 313 Cr.P.C why the fact of there being no quarrel between him and Jitender was not brought on record earlier or why the said fact was not even suggested to Rajesh (PW-1) at the time of his cross- examination.
Sessions Case No.84/2017 Page 33/4851. From a perusal of the testimony of Vinod Pal (DW-1), who is the real brother of the accused and Manish (DW-3), who is cousin brother of accused, it is clear that none of them had made any complaint regarding false implication of the accused to any of the police authorities or to any court. In fact, none of them raised any objection when the accused was apprehended in the present case. Furthermore, Vinod Pal (DW-1) claimed that he and the accused got Jitender admitted in Satyabhama hospital. However, as per the testimony of Dan Veer Singh (DW-2), as per hospital records, no patient in the name of Jitender S/o Bhure Lal, brought by one Vinod Pal was admitted. It is also clear from the testimonies of Rajesh (PW-1), HC Kapil Dev (PW-7) and SI Prem Yadav (PW-10) that Vinod (DW-1) arrived at the spot subsequently after Jitender was removed to hospital. In the afore-discussed circumstances, the testimonies of both Vinod Pal (DW-1) and Manish (DW-3) do not inspire confidence and are not worth believing.
52. As far as, the contradictions pointed out by the learned Defence counsel in the testimony of Sessions Case No.84/2017 Page 34/48 Satpal (PW-2) wherein he deposed that it was Mukesh who had made telephonic call to him about the quarrel between the accused and Jitender whereas Rajesh (PW-1) deposed that he had called Satpal, is concerned, the same is not a material contradiction going to the root of the case. Similarly, another contradiction pointed out in the testimony of SI Prem Yadav (PW-10) wherein he stated that he had used his own car in reaching to the spot with HC Kapil whereas HC Kapil (PW-7) deposed that both of them had gone to the spot on motorcycle make Pulsar, cannot be termed a material contradiction so as to disbelieve their respective testimonies.
53. The testimony of HC Kapil Dev (PW-7), who had taken the rukka (Ex.PW-6/B) to the police station for registration of FIR and the testimony of ASI Mata Din (PW-6), who got the FIR (Ex.PW- 6/A) registered on the basis of said rukka remained uncontroverted and no doubt could be created by the learned defence counsel in timing of preparation of rukka (Ex.PW-6/B) or in registration of FIR (Ex.PW-6/A).
Sessions Case No.84/2017 Page 35/4854. From the entire evidence - ocular as well as documentary - led by the prosecution, there is no doubt that on 26.10.2016 at around 11 p.m , a quarrel had occurred between the accused and Jitender (deceased). During the said quarrel, the accused had given fist blows on the stomach and ribs area of Jitender (deceased). Jitender (deceased) had also struck tin canister (Pipa) upon the accused in the said quarrel. Due to the blows suffered, Jitender (deceased) had fallen down on the road and was later on declared brought dead at the hospital. The points for determination no.3 is decided accordingly.
Point for determination no.4:
55. In the given facts and circumstances of the present case, the question whether the accused committed the offence of 'murder' or the offence of 'culpable homicide not amounting to murder', becomes necessary to be adverted to. In this regard, long back in Reg V. Govinda (1877) ILR 1 Bom. 342, Hon'ble Justice Melvill compared and distinguished the provisions of Section 299 and 300 of IPC. Later on, the Hon'ble Supreme Court in its Sessions Case No.84/2017 Page 36/48 landmark judgment titled as State of Andhra Pradesh v. R - Punnayya & Anr - 1977 AIR 45 elaborately dealt with the distinction between Section 299 and Section 300 of IPC. The relevant paragraphs of the said judgment are extracted as under:
The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused, if courts loosing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in various clauses of ss. 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:
Section 299 IPC Section 300 IPC A person commits Subject to certain culpable homicide if the exceptions, culpable
act by which the death is homicide is murder if the caused is done - act by which the death is caused is done -Sessions Case No.84/2017 Page 37/48
Intention
(a) with the intention of (1) with the intention of causing death; causing death;
or or
(b) with the intention of (2) with the intention of causing such bodily causing bodily injury as injury as is likely to the offender knows to be cause death; likely to cause the death of or person to whom the harm is caused;
or (3) 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 Knowledge
(c)with the knowledge (4) with the knowledge that the act is likely to that the act is so eminently cause death dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of using death or such injury as is mentioned above.
Clause (b) of s. 299 corresponds with clause (2) and (3) of s 300. The distinguishing feature of the mens rea requisite under cl. (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the Sessions Case No.84/2017 Page 38/48 intentional harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health and condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of cl. (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of cl. (2) is borne out by illustration (b) appended to s. 300.
Clause (b) of s. 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under cl.(2) of s. 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of rupture of the liver or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
In clause (3) of s. 300, instead of the words 'likely to cause death' occurring in the corresponding cl.(b) of s.299, the words 'sufficient in the ordinary course of nature' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in Sessions Case No.84/2017 Page 39/48 miscarriage of justice. The difference between cl.
(b) of s.299 and cl.(3) of s.300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in cl.(b) of s.299 conveys the sense of 'probable' as distinguished from a mere possibility. The words 'bodily injury sufficient in the ordinary course of nature to cause death' mean that death will be the 'most probable' result of the injury having regard to the ordinary course of nature.
For cases to fall within cl.(3), it is not necessary that the offender intended to cause death, so long as death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant & Anr v. State of Kerala AIR 1966 SC 1874 is an apt illustration of this point. In Virsa Singh v. The State of Punjab - (1958) SCR 1495, Vivian Bose, J. speaking for this court, explained the meaning and scope of clause (3) thus;
"The prosecution must prove the following facts before it can bring a case under s. 300 3rdly. First, it must establish, quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigation. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be proved that the injury of the type just described made up Sessions Case No.84/2017 Page 40/48 of the three elements set out above, was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender".
Thus, according to the rule laid down in Virsa Singh's case (supra) even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to s. 300 clearly brings out this point.
Clause (c) of s.299 and cl. (4) of s.300 both require knowledge of the probability of the causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that cl. (4) of s.300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as distinguished from a particular person or persons - being caused from his eminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as afore- said.
From the above conspectus, it emerges that whenever a court is confronted with the question 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 be considered at the first stage would Sessions Case No.84/2017 Page 41/48 be, whether the accused had 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 s.299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of s.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 s.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 second part of s.304, depending respectively on whether the second or the third clause of s.299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in s.300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of s.304 Penal Code.
56. Applying the above-mentioned exposition of law on the subject to the facts of the present case, in the light of testimonies of prosecution witnesses and the documentary evidence led by the prosecution, it is established that the accused inflicted injury to the deceased by repeated fist blows, therefore, it can be said that the accused had Sessions Case No.84/2017 Page 42/48 no intention to cause death of the deceased within the contemplation of cl.(a) of section 299 IPC or cl. (1) of section 300 IPC.
57. The intention of the accused in causing the said bodily injury to the deceased was not coupled with his knowledge of the likelihood of such injury causing the death of the deceased so as to bring it within the ambit of clause Secondly of section 300 IPC or cl. (c) of section 299 IPC.
58. The accused gave fist blows to the deceased in the quarrel which cannot be taken to mean that the intention of the accused was to inflict an injury to cause the death of the deceased. The accused gave fist blows which are a common phenomena in a free fight. It is also clear that there was no intention on the part of the accused to give fist blows on some vital part of the body of the deceased so as to infer the intention of the accused to inflict a particular injury to cause the death. The subsequent conduct of the accused of rubbing the chest and feet of the deceased after he fell down on the road, in order to revive him, also demonstrate that the accused did not intend to cause injury in order to cause the death of the deceased. In the Sessions Case No.84/2017 Page 43/48 given facts and circumstances, it is clear that some other kind of injury was intended by the accused i.e. to cause pain to the deceased and therefore, the present case cannot be covered within clause Thirdly of section 300 or cl.(b) of section 299 IPC.
59. As is clear, the case of the prosecution does not fall within cl. (4) of section 300 IPC.
60. From the above-mentioned application of settled principles of law to the facts of the present case, the end result is that the offence committed by the accused was neither 'murder' as defined under section 300 IPC nor 'culpable homicide not amounting to murder' as defined under Section 299 IPC.
61. Now, the question arises what offence, if not offence punishable under section 299 or section 300 IPC, was committed by the accused.
62. In the present case, from the forgoing discussion, it is established that there was a sudden fight between the accused and the deceased without there being any time for premeditation as the deceased had come infront of rehri (hand cart) of the accused and some hot exchange of words took place. It is also established that a quarrel ensued Sessions Case No.84/2017 Page 44/48 between the accused and the deceased in a heat of passion and there was mutual conduct and exchange of blows. The accused gave repeated fist blows and the deceased also retaliated by hitting empty tin canister (pipa) upon the accused. It is also clear that the accused was not armed with any weapon and certainly had not acted in a cruel and unusual manner which is clear from the subsequent conduct of the accused in rubbing the chest and legs of the deceased after he fell down on the road, in order to revive him. However, the deceased suffered fracture of his seventh rib due to fist blows.
63. In the entire set of circumstances as discussed above, in my considered opinion, the case of the prosecution is covered under clause Seventhly of section 320 IPC, punishable under section 325 IPC which is reproduced as under:-
320. Grievous hurt - the following kinds of hurt only are designated as "grievous":-
First - Emasculation.
Secondly - Permanent privation of the sight of either eye.
Thirdly - Permanent privation of the hearing of either ear.
Fourthly - privation of any member or joint.Sessions Case No.84/2017 Page 45/48
Fifthly - Destruction or permanent impairing of the powers of any member or joint. Sixthly - Permanent disfiguration of the heard or face.
Seventhly - Fracture or dislocation of a bone or tooth.
Eightly - Any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain, or unable to follow his ordinary pursuits.
322. Voluntarily causing grievous hurt -
whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt."
64. As discussed above, the accused inflicted repeated fist blows on the person of the deceased which resulted in fracture of his seventh left rib and, therefore, the facts of the case are squarely covered within clause seventhly of section 320 IPC.
65. In reaching this conclusion, I am fortified with judgment titled Emperor v. Bai Jiba - (1917) 19 Bom LR 823 wherein Beaman, J. after scrutinizing sections dealing with hurt, grevious hurt and culpable homicide not amounting to murder, laid down thus:-
"2............it is to be observed that the phrases such as hurt which endangers life, in the grievous hurt section and hurt which is likely Sessions Case No.84/2017 Page 46/48 to cause death in the section of culpable homicide not amounting to murder, must be applied with reference to normal conditions and it then becomes obvious that any hurt which endangers human life must also be likely to cause death.............but where death is caused as the result of an injury which is not intended to cause death and was not in normal conditions likely to cause death or, to use the other phrase, which in normal conditions did not endanger life, it becomes clear that the offence can neither be grievous hurt nor culpable homicide not amounting to murder."
66. Later, the Hon'ble Supreme Court in M/s Formina Sebastian Azardeo v. State of Goa, Daman and Diu - AIR 1992 SC 133, where there were as many as 55 injuries on the body of the deceased many of which were abrasions and bruises, laid down that in the absence of any definite evidence attributing specific overt act to any of the appellants in the backdrop of the circumstances appearing in the case, it would not be safe to draw such an allegation that the appellants have intended to cause the death of the deceased and did commit the offence of murder. The Apex Court held the offence to be one punishable under section 326 IPC. In Chowa Mandal & Anr v. State of Bihar Sessions Case No.84/2017 Page 47/48 passed by the Apex Court on 04.02.2004 in appeal (crl.) no. 411 of 1997, it was held that the incident in question occurred on the spur of the moment without there being any intention of causing death or of causing such injury as the accused persons knew was likely to cause death, and was an act arising out of the enmity the accused persons had with the nephew of the deceased and aggravated by the unwanted questioning by the deceased. The Apex Court held that from the evidence, it was clear that the act of the appellant could not be construed as an act other than causing grievous hurt and accordingly held the accused liable for an offence under section 326 r/w section 34 IPC.
67. Accordingly, in view of above-discussed propositions of law, facts and circumstances, the accused Ashok Kumar S/o Rambir Singh is held guilty and stands convicted for the offence punishable under Section 325 IPC.
68. Let the convict be heard on the point of sentence.
(Pronounced in the open (Kuldeep Narayan) Court on 30.11.2017). Addl. Sessions Judge (Pilot Court) West : Court No. 33: Tis Hazari Courts Delhi Sessions Case No.84/2017 Page 48/48