Delhi District Court
State vs Fulena Yadav on 19 September, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No.DLCT01-000006-2007
SC No. 27174/2016
FIR No. 295/2007
U/s 304/34 IPC
P. S. Anand Parbat
STATE VERSUS FULENA YADAV AND ORS.
(i) SC Number of the case : 27174/2016
(ii) Date of commission of offence : 29.10.2007
(iii) Name, parentage and address : 1. Fulena Yadav
S/o Sh. Jai Pal Yadav
R/o J-87,Gali No.10,
Taliwala Dera, Anand
Parbat, Delhi
2.Vijay Mal Yadav
(PROCEEDINGS ABATED)
S/o Sh. Ram Ji Yadav
R/o H. No. B-189, Prem
Nagar, Nangloi, Delhi
3. Subhawati
W/o Sh. Fulena Yadav
R/o J-87,Gali No.10,
Taliwala Dera, Anand
Parbat, Delhi
(iv) Offence complained of : 304/34 IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : CONVICTED
SC No. 27174/2016
FIR No. 295/2007
State Vs. Fulena & Ors. Page 1 of 71
Date of Institution : 08.02.2008
Date of Judgment reserved on : 11.09.2025
Date of Judgment : 19.09.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. The present case was registered on the complaint of HC Mahesh Kumar who on receipt of DD No.35A dated 29.10.2007 departed regarding a fight for the spot of incident which is H.No.1098, Gali No.10, near Police Booth, Anand Parbat regarding a fight. The information was received from HC Yusuf Khan from PCR and the further action was assigned to HC Mahesh Kumar. The information of dispute was near Jhuggi Taliwala Dera. The injured/ Nand Lal was already taken in PCR van to DDU Hospital who was unfit for statement at the hospital. He had received injuries on his head.
Initially the case was registered under Section 308 IPC. In the FIR the time of incident was recorded as 9:08 PM in front of Durga Mandir, Taliwala Dera, near Police Booth, Anand Parbat, Delhi. HC Mahesh Kumar has given the tehrir at PS on 30.10.2007 when FIR Ex.PW5/A was registered in the matter and the same was proved by ASI Juleta/ PW-5. The original rukka was also proved by him and the copy of endorsement is Ex.PW5/B. DD No.11A was recorded regarding registration of FIR which is in the handwriting of PW-5 copy of which is Ex.PW5/C. Investigation of the case was assigned to IO /SI Santosh Pabri. PW-1 Sanjay the son of the deceased was found eye witness in SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 2 of 71 the case. The case was investigated and the chargesheet was filed against three accused. Accused Vijay Mal had expired on 28.06.2022 and on verification of death by SHO concerned the case against him stood abated vide order dated 19.05.2023.
2. Charge was given under Section 304/34 IPC to accused No.1 and 2 on 10.09.2008 and accused No.3 Subhawati Yadav on 13.02.2012 who had pleaded not guilty and claimed trial. Accused Subhawati Yadav was brought to trial later on after her subsequent arrest vide supplementary chargesheet.
3. Prosecution has examined PW-1 to PW-17 as entire prosecution evidence against all the accused. Statement under Section 313 Cr. P. C. of all the accused was recorded on 02.07.2016. All the accused had sought to produce evidence in defence. The only witness produced in defence is DW-1 Sh. Ashwani Gupta, Ahlmad who had produced the record of session case No.279/48/2016 titled State vs. Sanjay in FIR No.296/2007 of PS Anand Parbat. He had also produced the original record of complaint No.2567/2007 titled Jasmita Devi vs. Fulena Yadav and Ors. The complaint case was tagged with the State case. The evidence in defence was closed on behalf of all the accused vide separate statement of learned Counsel for the accused recorded without oath on 14.02.2017.
4. Final arguments are heard from both the parties and record perused.
SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 3 of 715. The necessary ingredients of Section 304 IPC are reproduced hereinasunder:
Hon'ble High Court of Calcutta (Appellete Side) in case titled Bodha @ Ramesh Turi & Ors vs The State Of West Bengal & Anr on 6 February, 2023 in CRR 989 of 2019 has laid down as under:
26. Before Section 304 can be invoked, the following ingredients must be satisfied;
(i) the death of the person must have been caused;
(ii) such death must have been caused by the act of the accused by causing bodily injuries;
(iii) there must be an intention on the part of the accused
(a) to cause death; or
(b) to cause such bodily injuries which is likely to cause death; (Part I) or
(iv) there must be knowledge on the part of the accused that the bodily injuries is such that it is likely to cause death (Part II).
27. Section 304A was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of 1870) and reads thus;
304A. Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
28. The section deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without `intention' or `knowledge'. The words "not amounting to culpable homicide" in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the cause of death of another person.
29. There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the `motivating force' of the act complained of, SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 4 of 71 Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.
30. In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the following pertinent observations which have been quoted with approval by various Courts including this Court;
"Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injuries, but without intention to cause injuries, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injuries either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted".
6. The first ingredient the prosecution has to prove is that death of a person has been caused. PW-1 has deposed on 03.05.2011 that the accused person had murdered his father. During his examination in chief dated 31.05.2011 PW-1 has deposed that he will state about the occurrence where his father was killed before learned MM where he had filed the complaint case. However after such deposition the witness was recalled on 08.07.2011 and who continued to remain adamant to the effect that he will depose about the culprits who had killed his father before the Court of learned MM. The certified copy of the complaint before learned MM dated 15.12.2007 running in 6 pages is Ex.PW1/A (in the complaint case). PW-1 in his examination in chief dated 15.03.2012 has deposed that on 29.10.2007 at about 9:00 PM in front of Durga Mandir accused Fulena Yadav, Subhawati Devi, Lorik Yadav, Vijay Mal, wife of Lorik Yadav, Dinanath Shah, Shanti Devi, Dharmender Pandey, Chandrika Prasad, Dhoop Chand @ Chaudhary SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 5 of 71 and his wife, two another men and one another lady who used to reside at the room of Fulena Yadav, 5 other unknown person had used force against PW-1 and his father Nand Lal and confined them wrongfully with intention to kill them. The above person assaulted brutally his father with iron rod, brick pieces, Lathi and Danda. PW-1 had managed to escape to save his life, however the accused person continued to beat his father. In between his mother / PW-10 Ms. Jasmita Devi had reached there to save Sh. Nand Lal. However accused person also gave beating to PW-10. Sh. Nand Lal, father of PW-1 and husband of PW-10 had fallen unconscious due to the said beating and he was bleeding profusely. Someone had called at 100 number. Sh. Nand Lal was removed to DDU Hospital with whom PW- 10 accompanied. From DDU Hospital Sh. Nand Lal was referred to Safdarjung Hospital and he did not regain consciousnesses. On 30.10.2007 Doctor at Safdarjung Hospital had declared that the medical condition of Sh. Nand Lal was serious and around 7:00 PM/8:00 PM Sh. Nand Lal had succumbed to his injuries. PW-1 had identified the dead-body of his father at the mortuary and received the body vide receipt Ex.PW1/A (since Ex.PW1/A is already numbered for document which is certified copy of complaint dated 15.12.2007 and this exhibit number is repeated in the above deposition. Therefore the receipt of dead-body is re-numbered herein as Ex.PW1/A2 and hereinafter be referred accordingly.) PW-1 has therefore proved that death of his father Nand Lal had occurred dead-body of whom was received by him.
7. PW-2 ASI Sultan Singh in the intervening night of 30- SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 6 of 71 31.10.2007 was posted as DO at PS Anand Parbat. At about 12:55 AM he had received information from DDU Hospital through Ct. Arvind the duty constable that Sh. Nand Lal S/o Ram Bodh had died in the casualty of Safdarjung Hospital who was referred from DDU Hospital. This information was recorded in Register No.19 vide DD No.4/A, true copy of which is Ex.PW2/A (OSR). PW-2 handed over the DD No.4/A to IO. PW-2 ASI Sultan Singh has similarly deposed in evidence during his examination dated 18.04.2012. Though the above deposition of PW-2 was tried to be controverted in cross examination by merely a suggestion that not such information was received or it was manipulated however the suggestion was found without any basis and hence the same is not sustained.
8. PW-3 Sunder Lal who is running a Kirana Shop was going around 8:30 PM towards his residence from the shop on 29.10.2007. He had seen accused Fulena Yadav and Vijay Malik started abusing deceased Nand Lal on the pretext of the quarrel earlier taken place between children of Nand Lal and Fulena Yadav which was patched up at that time with the intervention of beat officer. Lorik Yadav who is brother of Fulena Yadav and his wife Subhawati also reached there. Exchange of hot words started. Sanjay/PW-1 son of Nand Lal alongwith PW-10 had also reached at the spot. Vijay Mal and Fulena Yadav hit Nand Lal on his head with Saria/ iron rod and Subhawati threw bricks on Nand Lal and his son Sanjay. Lorik Yadav had caught hold of hands of Nand Lal. PW-3 intervened alongwith Mohalla people and police was informed at 100 number. Nand Lal had sustained injuries on his head. Fulena Yadav also sustained injuries on SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 7 of 71 head. PW-3 has further deposed in his cross examination dated 01.06.2010 that he had seen the deceased Nand Lal and accused Fulena Yadav after the receipt of injuries when he was lying on the road. It is deposed by PW-3 that he was the eye witness of the incident at that time when on 29.10.2007 at about 12:00 PM a quarrel had taken place between accused Vijay Mal and Sanjay. Police also came at the spot and both of them were taken to PS. In the evening at around 8:30 PM when he was sitting in the booth alongwith HC Mahesh Kumar a call was received on which he alongwith HC Mahesh Kumar reached in front of Durga Mandir on a motorcycle where he saw Nand Lal was lying unconscious. When PW-3 reached there then Fulena Yadav the accused had started abusing PW-3. PW-3 was removed from the spot by his mother and aunt (Mami). PW-3 had turned hostile by learned Addl. P. P. for the State and Mark-PW-3/A was put to him which is statement under Section 161 Cr.PC where it is stated by PW-3 that on 29.10.2007 at about 7:30 PM when he was sitting in his shop then from the main roadside deceased Nand Lal came who was going towards his Jhuggi. It is also written in the statement that immediately from the Gali accused Fulena Yadav and Vijay Mal came there who obstructed the way of Nand Lal. They started abusing Nand Lal while asking him about the quarrel occurred earlier in the day. Hence the entire statement was put to PW-3 by learned Addl. PP for the State and PW-3 had denied that police had recorded his statement.
9. PW-4 HC Ghansi Lal on 31.10.2007 alongwith SI Santosh Kumar went to Safdarjung Hospital for post-mortem on the body of the Nand Lal. The body was identified by son of Nand Lal and his brother SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 8 of 71 in law Ram Bachana. The son had received the body. Sample of the blood of the deceased was taken.
10. PW-5 ASI Juleta has proved the copy of FIR as Ex.PW5/A and he had made endorsement regarding registration of FIR. He had got original rukka and endorsement / Ex.PW5/B. DD No.11A was recorded regarding registration of FIR in his handwriting which is proved as Ex.PW5/C.
11. PW-6 ASI Rohtash Singh on receipt of information from Control Room regarding quarrel had recorded DD No.35A at 9:08 PM. He had proved original DD register and the relevant entry in his handwriting as Ex.PW6/A which was handed over to HC Mahesh Kumar for further investigation/PW-7.
12. PW-7 HC Mahesh Kumar on receipt of DD No.35A Ex.PW6/A went with HC Bhagat Ram/ PW-12 to Taliwala Dera where the injured was already taken to DDU hospital by PCR. At hospital the injured Nand Lal was unfit for statement. He had sent rukka Ex.PW7/A for registration of FIR through HC Bhagat Ram. Injured was referred to Safdarjung Hospital and further investigation was handed over the SI Santosh Kumar (SI Santosh Pawri) / PW-14. The time gap between sending the rukka and receiving the copy of FIR was 1 hour 15 minutes. PW-7 returned back to the spot at 7:00 AM. He had collected MLC from DDU Hospital. No eye witness met him at the spot on the first visit.
SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 9 of 7113. PW-12 Ct. Bhagat Ram at that time on receipt of DD No.35A went to Gali No.10, Taliwala Basti, Near Police Booth, Anand Parbat and from there he alongwith HC Mahesh went to DDU Hosptial where they found injured Nand Lal in unconscious condition. PW-12 carried DD No.35A and rukka which he carried to the PS for registration of FIR and returned back to the spot. FIR and original rukka were handed over to SI Santosh / PW-14. He had received DD No.35A at about 11:00 PM on 29.10.2007. After 25-39 minutes they had reached at the spot where public persons were present. No eye witness was present. He reached at PS at 7:30 AM. The injured was unfit for statement.
14. PW-16 Dr. Prem Kumar CMO Incharge, Safdarjung Hospital has deposed that at around 2:20 PM on 31.10.2007 the dead-body of deceased Nand Lal aged about 40 years was received at Safdarjung Hospital alongwith inquest papers. The body was identified by PW-14 and relatives of deceased. PW-14 had conducted the post-mortem at about 2:25 PM and concluded it by 3:00 PM. The body was received at about 8:30 AM with the alleged history of assault on 29.10.2007 alongwith MLC and inquest papers. At about 9:50 PM the deceased was initially taken to DDU Hospital. Later he was referred to Safdarjung Hospital where he had expired on 30.10.2007 at about 8:00 PM. Rigor-mortis was found present all over the body. On post- mortem he had found that all injuries were ante-mortem in nature. Blood gauze was preserved and handed over to IO alongwith sample seal. The post-mortem is proved as Ex.PX-2 and the inquest papers were initialed by PW-16. On the basis of post-mortem he had given opinion that death of Nand Lal had occurred due to head injuries SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 10 of 71 caused by blunt force impact. On internal examination no abnormality was found in neck, spine, abdomen, chest and pelvis. The nature of injuries are reported as under:
1. Stitched wound 30 cm long having 30 stitches involving right fronto- pariteo-temporal area of scalp whose diagram I had prepared in the report. It was surgical wound.
2. Stitched wound 22 cm in length having 5 stitches over left parital eminence 4 cm abvoe left ear. On removal of stitches, wound was found to be lacerated one.
3. Stitched wound 6 cm long having 6 stitches over left parital region interior part 4 cm away from injuries No.2, 7 cm from upper part (boarder) ear and 9 cm from left eye brow. On removal of the stitch wound was found to be lacerated. On internal examination following injuries were found:
HEAD:
Extra vasations of blood underneath the scalp drephine craniotomy wound present over right parital region 9 x 5 cm fracture of frontal bone was seen. On removal of scalp bault (cap) dura was found stitched corresponding to Creniotomy wound. Subdural haemorrhage was found on right front tempo parital area. Brain was oedemotous.
The cross examination of above witness is nil after giving opportunity.
15. PW-17 SI Bal Mukund on 03.08.2011 had received investigation. He had obtained NBWs against accused Subhawati and SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 11 of 71 Lorik Yadav. To execute NBWs he went to West Champaran, Bihar and accused Subhawati had moved an application for surrender before the Court. IO joined on 08.11.2011. The accused was arrested vide memo Ex.PW15/A. Her disclosure statement was recorded as Ex.PW17/A. Supplementary charge-sheet was filed by PW-17 against accused Subhawati. It is admitted as correct by PW-17 that he did not collect any evidence against accused Subhawati and he did not meet any eye witness of the case. He did not contact the previous IO and he had not seen the case property of this case. PW-15 W/Ct. Sneh Lata on 08.11.2011 joined SI Bal Mukund/ PW-17 and has identified accused Subhawati surrendered before the Court of learned MM. She has witnessed the arrest of accused Subhawati and her personal search and interrogation.
16. PW-9 Ct. Vijay Kumar went to Safdarjung Hospital with HC Satender/ PW-13 where they met Sanjay / PW-1 and Smt. Jasmita /PW-
10. The site plan ExPW14/A was prepared by PW-14 at the instance of PW-1. HC Satender/ PW-13 had taken both the accused for medical examination at DDU Hospital. PW-13 had went to Safdarjung Hospital. Injured Nand Lal was in OT who was not fit for statement. They had reached at Safdarjung Hospital at about 12 noon in a private vehicle.
17. Hence the evidence of above prosecution witness in respect of death of deceased Nand Lal on 29.10.2007 stands proved. Evidence of PW-16 and other witnesses discussed above in this respect is unrebutted and unimpeached. Hence first ingredient of offence that SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 12 of 71 death of a person is caused under Section 304 IPC is proved by the prosecution against accused No.1 Fulena Yadav and accused No.3 Subhawati.
18. The second ingredient the prosecution has to prove is that such death of a person was caused by the act of the accused by causing bodily injuries. PW-1 has deposed that on 29.10.2007 at about 9:00 PM in front of Durga Mandir accused Fulena Yadav, Subhawati Devi, Lorik Yadav, Vijay Mal, wife of Lorik Yadav, Dinanath Shah, Shanti Devi, Dharmender Pandey, Chandrika Prasad, Dhoop Chand @ Chaudhary and his wife, two another men and one another lady who used to reside at the room of Fulena Yadav, 5 other unknown person had forced PW-1 and his father Nand Lal and confined them wrongfully with intention to kill them. The above person assaulted brutally his father with iron rod, brick pieces, Lathi and Danda. PW-1 had managed to escape to save his life, however the accused person continued to beat his father. In between his mother / PW-10 Ms. Jasmita Devi had reached there to save Sh. Nand Lal. However accused person also gave beating to PW-10. Sh. Nand Lal, father of PW-1 and husband of PW-10 had fallen unconscious due to the said beating and he was bleeding profusely. Someone had called at 100 number. Sh. Nand Lal was removed to DDU Hospital with whom PW- 10 accompanied. From DDU Hospital Sh. Nand Lal was referred to Safdarjung Hospital and he did not regain consciousnesses. On 30.10.2007 Doctor at Safdarjung Hospital had declared that the medical condition of Sh. Nand Lal was serious and around 7:00 PM/8:00 PM Sh. Nand Lal had succumbed to his injuries. PW-1 had SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 13 of 71 identified the dead-body of his father at the mortuary and received the body vide receipt Ex.PW1/A.
19. PW-1 has correctly identified accused No.1 Fulena Yadav and accused No.2 Subhawati and also Vijay Mal before the present Court. It is deposed by PW-1 that he can identify other accused persons who had assaulted his father Sh. Nand Lal. It is deposed by PW-1 that accused No.2 Vijay Mal (abated) was having iron pipe rod in his hand, accused Fulena Yadav was having iron rod/ Saria in his hand and accused Subhawati was having brick in her hand. Accused Vijay Mal and accused Fulena hit on the head of his father with iron pipe and Saria apart from other body parts while accused Subhawati had hit brick on the head of his father Sh. Nand Lal (since deceased) on which Sh. Nand Lal had fallen on the ground.
20. PW-1 had volunteered to depose additional facts which were not recorded by police in his statement under Section 161 Cr.PC. It is deposed that his mother Ms. Jasmita Devi/PW-10 had accompanied his father since the beginning of the assault till his death. The statement of Ms. Jasmita /PW-10 was also not recorded by the police. PW-1 was called at PS Anand Parbat by PW-14 SI Santosh Pavri who asked PW-1 to settle the matter with the accused. He was not heard. He was threatened that in case he does not enter into settlement then a case would be registered against him as well. He was asked to sign certain blank papers and also some already written paper which he had signed on fear of false implication. Thereafter he and his mother PW-10 had filed written complaint to Joint CP North Range on which no action SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 14 of 71 was taken.
21. In cross examination it is deposed by PW-1 that he knew the accused persons for the last 14-15 years residing in the same area. Distance between their house and the house of accused persons is 250- 300 meters. The house of the accused person fall in another Gali. PW-1 is 12th class pass. On the day of incident he had went for duty and reached back at his house at about 6:00 PM. The distance between Durga Mandir and his house is about 30-35 meters. It is deposed that his father used to take liquor daily after return from his job but at the time of incident he did not consume liquor. His father the deceased Nand Lal after returning from his job used to park motorcycle at the place of incident. The distance between the parking of motorcycle and Durga Mandir is about 7 meters. There is no previous enmity with the accused persons.
22. PW-1 has further deposed in cross examination dated 19.03.2012 that he was already standing at the spot when his father came on motorcycle from duty and parked the motorcycle. It is denied that accused Fulena and his son Deepak had plain talk with the father of PW-1 and no other person was available. It is denied that thereafter PW-1 reached there and started abusing accused Fulena. It is denied that accused Fulena requested the deceased Nand Lal to stop PW-1 from abusing on which PW-1 started abusing accused Fulena again. It is denied that PW-1 had got Saria / rod from his house and started beating accused Fulena and his son. It is denied that father of PW-1 tried to intervene and he had sustained injuries from Saria/ rod brought SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 15 of 71 by PW-1 when PW-1 was trying to assault accused Fulena and his son Deepak. It is further denied by PW-1 that he had raised alarm and left for the house of Smt. Jagmati Devi the foster Bua. Mother of PW-1 has also reached at the spot within 5-10 minutes of the starting of quarrel. He did not accompany his father to DDU Hospital. The statement of his mother was not recorded by police.
23. It is further deposed that accused Lorik Yadav who is proclaimed offender was having a Lathi and his tenant was having a Lathi. Dhoop Chand had given a Sari to Fulena. Dina Nath was standing there who exhorted that no one would save the father of PW-1. Ms. Shanti Devi had shouted caste aspersion and exhorted to beat. Chandrika Prasad helped accused person to fled away from the spot. PW-1 came to know this fact from the public person. It is further deposed by PW-1 that FIR No.296/2007 at PS Anand Parbat was registered against him by the police to falsely implicate him and to pressurize him to withdraw the present case.
24. In cross examination dated 18.04.2012 PW-1 had denied that in the night of 29.10.2007 at about 9:00 PM he had assaulted accused Fulena Yadav and his son Deepak at Durga Mandir with Saria on which FIR No.296/2007 was registered at PS Anand Parbat under Section 324/325/341/34 IPC. It is deposed by PW-1 that after the incident he met with police in connection with this case in the evening of 30.10.2007. It is deposed that he was compelled by police to make his statement and sign. Again said that he was never pressurized to make a statement. It is denied that for this reason he had left the SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 16 of 71 jurisdiction of PS Anand Parbat and do not meet the police and therefore police could not record his statement.
25. In cross examination dated 18.04.2012 PW-1 has deposed that he used to come home between 6-9 PM from his duty and which may be earlier or later on different days. One day prior to the date of incident he had no quarrel with any person in respect of playing cricket or other game. It is admitted that there is no family enmity or any type of dispute between his family and the family of accused person prior to the incident dated 29.10.2007. The place of incident is surrounded by residential area where public person were present. PW-1 is the only son of his parents.
26. In his examination dated 17.12.2014 PW-1 Sh.Sanjay had identified accused Subhawati before the Court as the accused who had assaulted his father Sh. Nand Lal and caused his death. Accused Subhawati had threw bricks while causing injuries on Sh. Nand Lal. PW-1 has deposed that he had also sustained injuries in the said incident.
27. PW-3 Sh. Sunder Lal running a Kirana shop has deposed that on 29.10.2007 at about 8:30 PM he was present at his shop. Nand Lal who was also running a Kirana shop was coming from main road and going towards his resident. While Sh. Nand Lal was on his way when accused Fulena Yadav and accused Vijay Malik came and started abusing Sh. Nand Lal on the pretext of quarrel already taken place between the children /sons of Nand Lal and children of accused Fulena SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 17 of 71 Yadav. That matter was patched up with the intervention of beat officers. Lorik Yadav who is brother of Fulena Yadav and accused Subhawati also reached there. Hot words were exchanged when PW-1 Sanjay and his mother PW-10 had reached there. Accused Vijay Mal and accused Fulena had hit Nand Lal on his head with Saria and accused Subhawati threw bricks on the Nand Lal and his son Sanajy. Lorik Yadav had caught hold of deceased Nand Lal. PW-3 with Mohalla people had intervened in that matter and police was also informed at 100 number. Nand Lal sustained injuries on his head. Fulena Yadav had also sustained injuries on his head. Police had only noted down their address and number and nothing was asked from them regarding the incident. Learned Addl. PP for the State had put leading question to PW-3 that the above facts were not stated by him earlier to the police at any point of time.
28. During cross examination dated 01.06.2010 PW-3 has deposed that he does not remember the date of incident and on the last date he deposed the date of incident as stated by IO to him outside the Court room. This shows that on 01.06.2010 PW-3 has turned hostile to the case of the prosecution. When the IO had allegedly so stated to PW-3 outside the Court then on such date on 11.08.2009 the presence of IO must be shown on the record. The order-sheet dated 11.08.2009 is perused and IO/ SI Santosh was present who was discharged unexamined on that day as the cross examination of PW-3 was pending and whose cross examination was deferred on the request of learned proxy Counsel for the accused as the main Counsel was ill. However PW-3 had deposed contradictorily on 11.08.2009 and 01.06.2010 SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 18 of 71 which shows that he had turned hostile to the case of the prosecution and his testimony has to be read with caution. Further it is deposed by PW-3 that when the hot words exchanged between PW-1 and accused Fulena Yadav and his wife then he could not see them due to darkness. He could identify them by their voice. He had not seen that who had hit whom due to darkness. However it is stated that bricks and stones were used during such hitting. A crowd of 200-250 persons had collected at the spot. The call at 100 number allegedly made was about the earlier quarrel which had taken place during the day around 11:30 AM. He did not see Nand Lal and accused Fulena Yadav receiving injuries and he had seen them after the injuries were received by them when they were lying on the road. However it is denied that he was not present at the spot or that he did not see Nand Lal and Fulena having received injuries. Hence by above deposition PW-3 again admitted that he was present at the spot and he had seen the injuries received by Nand Lal and accused Fulena Yadav. During re- examination by learned Addl. PP for the State the PW-3 remained hostile to the case of the prosecution.
29. The PW-3 in his deposition dated 04.07.2012 has again deposed that on 29.10.2007 at about 12 noon a quarrel had occurred between accused Vijay Mal (correctly identified before the Court) and PW-1. Police came at the spot and both of them were taken to PS. In the evening around 8:30 PM when he was sitting in the booth with HC Mahesh Kumar a call was received on which he alongwith Mahesh Kumar reached on a motorcycle at the spot in front of Durga Mandir where he had seen Nand Lal lying in an unconscious condition. When SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 19 of 71 he reached there then on seeing PW-3 accused Fulena Yadav had started abusing PW-3. Mother and aunt / Mami of PW-3 removed him from the spot. He is cross examined by learned Addl. PP for the State was declared hostile to the case of the prosecution. In cross examination by the accused it is deposed by PW-3 on 04.07.2012 that at around 8:30 PM there is usually rush of customers in his shop and generally he used to sit also at police booth.
30. PW-10 Ms. Jasmita Devi who is wife of deceased Nand Lal is a housewife and she was present in her house on 29.10.2007. It is deposed by her that around 9:00 PM she was available with her son Sanjay/ PW-1 at her house when around 9:00 PM near Durga Mandir her late husband Nand Lal was parking his vehicle. At that time accused Fulena Yadav having Saria in his hand, Vijay Mal having Saria in his hand, accused Subhawati Devi (correctly identified), and accused Lorik Yadav (Since PO) having Danda in his hand, wife of Lorik Yadav, Dhoop Chand Chaudhary and his wife, Dharmender Pandey, Deena Nath Shah, Chandrika Prasad, Shanti Devi and a lady whose name she does not know but she used to reside in the house of accused Fulena Yadav came there. They obstructed the way of the deceased Nand Lal and PW-1. It is again said by PW-10 that accused Fulena Yadav was having brick in his hand. All of them started beating her husband Sh. Nand Lal and PW-1. PW-1 somehow managed to escape and ran away from the spot to save his life whereas Sh. Nand Lal had fallen unconscious. PW-10 rushed to save Sh. Nand Lal but she was also assaulted by the accused person. Sh. Nand Lal was taken to DDU Hospital by PCR. Sh. Nand Lal had fallen unconscious and SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 20 of 71 blood was oozing out of his head and other part of his body. From there the deceased was referred to Safdarjung Hospital. After 3 days her husband Sh. Nand Lal had expired due to such injuries caused by accused person. She had told the name of above accused to the police which was not recorded. Police had recorded her statement without consulting her.
31. In cross examination PW-10 has deposed that the house of the accused Fulena Yadav is situated at a walking distance of 10 minutes by foot from her house. PW-10 is illiterate. There was no fixed time of her husband Nand Lal and son PW-1 for leaving from home and coming back to home after their job. They used to receive call for work. There ususal time of leaving was 6:00 AM to 9:00 AM and he used to return beween 5:00 PM to 10:00 PM. On the day of incident they had returned back by 9:00 PM and PW-1 returned back home prior to deceased Nand Lal on that day. It is deposed that at the time of incident her son PW-1 was not at home who had gone out to ease himself. Durga Mandir is only 4 houses/ Jhuggi away from their house. On that day it was Karvachauth festival and her husband had not taken liquor. There was no prior enmity with the accused persons and there was no prior incident of quarrel with accused persons.
32. There are several houses near Durga Mandir. It is suggested to PW-10 during cross examination that on the date and time of offence PW-1 came there and started abusing accused Fulena Yadav. It is suggest that when accused Fulena Yadav was having talk with PW-1 at that time PW-1 had given a Saria blow to accued Fulena Yadav. It is SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 21 of 71 suggested that at that time Nand Lal came in between and received injuries. Hence with the above suggestion the acucsed has admitted the presence of deceased Nand Lal and PW-1 at the spot before beginning of any quarrel. It is also admitted that the injuries were received by deceased Nand Lal by iron rod/ Saria.
33. PW-10 has deposed that many public person were present there other than accused. It is deposed by PW-10 that the FIR No.296/07 was registered against PW-1 is a false case. It is suggested to PW-10 that because PW-1 had caused injuries on accused Fulena Yadav then he ran away from the spot and that is why he is not an eye witness in the case which is denied by PW-10. It is denied that accused Subhawati was not having any brick with her.
34. In cross examination dated 27.02.2016 it is deposed by PW-10 that she had gone to Safdarjung Hospital from her home via DDU Hospital first in the PCR which had removed her husband to DDU Hospital and from there in Ambulance to the Safdarjung Hospital. On 4th day police called her at Police Station and took her signature on blank papers. Her son / PW-1 had sustained injuries with iron rod, bamboo and bricks. There were 10-15 or 20 person all of them were having bricks, Danda and Saria. PW-10 had also sustained injuries. It is suggested to PW-10 that when PW-1 was hitting accused Fulena Yadav with Saria at that time the deceased Nand Lal came in between and intervened then the injuries were received by him by the said Saria used by PW-1. It is suggested that at that time PW-10 and the deceased Nand Lal had fled away from the spot and the independent SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 22 of 71 person had filed a false case against the accused person because they were trying to catch PW-1 and PW-10. By the above suggestion the accused persons had admitted the presence of PW-10 at the spot when the injuries was received by deceased Nand Lal. Hence presence of PW-1 and PW-10 is admitted by the accused person by such suggestion, before and during the injuries were received deceased Nand Lal and that PW-1 and PW-10 were eye witness to the case.
35. The MLC of PW-1 and PW-10 or their medical examination is not produced on record by the prosecution despite of the fact that PW-1 and PW-10 both had claimed during evidence that they had sustained injuries. PW-1 had claimed that he had to run to save his life. PW-10 has deposed that she had suffered injuries when she had tried to save her husband at the time when her husband deceased Nand Lal had fallen unconscious. Accused person had also assaulted her. After sometime police came there. In cross examination PW-10 was consistent that her son sustained injury with iron rod, bamboo and bricks who had saved his life while running away from the spot. Her husband was lying unconscious on the spot. It is deposed in cross examination dated 27.02.2016 that she had also sustained injury. Non medical examination of PW-1 and PW-10 shows that the investigation was faulty on this aspect. When PW-1 and PW-10 had claimed injuries then it was very material fact which the prosecution was required to investigate and submit.
36. PW-12 Ct. Bhagat Singh has deposed that on 30.10.2007 on receipt of DD No.35A he had went with HC Mahesh to DDU Hospital SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 23 of 71 where he found injured Nand Lal in an unconscious condition. No eye witness met them at DDU Hospital. To the contrary PW-10 claimed that she remained with her husband and she was eye witness to the incident. PW-12 has deposed that he does not know who was accompanying the injured to the hospital and that Doctor did not tell him that the injured was unfit for statement. It must have been told to HC Mahesh. PW-10 claimed that she had went to DDU Hospital and from there she remained with her husband when her husband shifted to Safdarjung Hospital. Hence the testimony of PW-13 HC Satender corroborates the above fact by his deposition that Sanjay/PW-1 and Jasmita / PW-10 met them in the hospital. Injured Nand Lal was in operation theater. PW-13 has deposed that SI had recorded statement of PW-1 and PW-10. The blood stained clothes of injured which are Baniyan was produced by PW-1 Sanjay before the IO which was seized vide memo Ex.PW9/1. Thereafter they went alongwith Sanjay to the spot where SI Santosh / PW-14 prepared the site plan at the instance of PW-1 Sanjay. Thereafter they alongwith PW-1 Sanjay went to the house of accused person namely accused Fulena Yadav and Vijay Mal. Accused Fulena Yadav and Vijay Mal were arrested vide memo Ex.PW9/C and Ex.PW9/D who gave their disclosure statement vide Ex.PW9/A and Ex.PW9/B. It is deposed by PW-14 that at the instance of accused Vijay one iron Saria/pipe was recovered from the bushes on Kachha Rasta. Ex.PW9/E perused vide which iron pipe was recovered which was smeared with blood. The pipe was recovered at the instance of accused Vijay Mal who had since expired in the case. The pipe was 41-1/2 inch long and 3 inch of breadth . The iron rod was recovered from bushes on Kachha Rasta which was seized vide memo SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 24 of 71 Ex.PW9/E. At the instance of accused Fulena Yadav one pipe was recovered from roof of his Jhuggi which was seized vide memo Ex.PW9/H. The length of the pipe was 40 inch and its thickness was 3-1/2 inch.
37. The FSL report is Ex.PW14/G and the report of the Biology Division is Ex.PW14/H (at page No.211 of the document file). The FSL report is perused. One iron pipe is Ex.2 and in the result of analysis it is mentioned that blood was detected on Ex.1, Ex.2 and Ex.4. Ex.1 is one Baniyan which was seized form PW-1 in the hospital and it was smeared with blood. Ex.4 is damp foul smelling brown gauze cloth piece. Ex.3 is one iron pipe and result of analysis of blood is that blood was too small for serological analysis which was detected on Ex.3. The serological analysis by Biology Division is Ex.PW14/H and the blood on Baniyan was found of human origin. Blood on iron pipe has no reaction and the blood stained cloth gauze piece had no reaction. Hence it is proved by FSL report on record that blood was detected on Ex.1, Ex.2 and Ex.4 out of which blood found on Ex.1 was of human origin and no reaction was found on Ex.2 and Ex.4. PW-8 HC Ved Pal Singh had deposited 3 sealed pullandas with the seal of SP at FSL Rohini on 30.10.2007. The entry in the register No.19 is Ex.PW8/A. On 31.10.2007 he had deposited pullanda with the seal of HJS in malkhana vide Ex.PW8/B. Ct. Naresh had deposed the same with FSL vide Ex.PW8/C. It is held in case titled Criminal Appeal No. 2806/2024 (Arising out of Special Leave to Appeal (Crl.) No. 11793/2022) Dharmendra Kumar vs. State of Madhya Pradesh (08.07.2024 - SC) : MANU/SC/0566/2024 (Coram:2) that the FSL SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 25 of 71 report confirmed that human blood was detected on the recovered knife at the instance of appellant therein. Then no explanation of human blood on the weapon of crime construe a circumstance against the accused. On the failure of the satisfactory explanation lends support to the case of the prosecution even when the blood group classification test yield inconclusive result. The relevant para of which is reproduced hereinunder:
Criminal Appeal No. 2806/2024 (Arising out of Special Leave to Appeal (Crl.) No. 11793/2022) Dharmendra Kumar vs. State of Madhya Pradesh (08.07.2024 - SC) : MANU/SC/0566/2024 (Coram:2) B. EFFECT OF ABSENCE OF BLOOD GROUP CLASSIFICATION ON PROSECUTION'S CASE
59. Learned Senior Counsel on behalf of Appellant asserted that the knife purportedly retrieved from him underwent examination at the Forensic Science Laboratory, where the test results were inconclusive, particularly regarding the determination of the blood group on the weapon.
Consequently, the absence of a conclusive match in the blood group analysis should be construed in favour of the Appellant and against the prosecution.
60. Upon a thorough examination of the FSL report, it stands confirmed that the blood group classification test conducted on the recovered knife yielded inconclusive results. However, it is crucial to note that human blood was detected on the knife recovered at the instance of the Appellant (Exhibit "I" before FSL). This fact gains some importance, considering that various weapons, including lathis and even the knife attributed to Accused Asgar, underwent an FSL examination, yet, no traces of human blood were found on them. Notably, human blood was solely found on the knife used by the Appellant.
61. In line with the precedents set forth by this Court in Raja @ Rajinder v. State of Haryana MANU/SC/0412/2015 : 2015:INSC:312 : (2015) 11 SCC 43 and John Pandian v. State MANU/SC/1025/2010 : 2010:INSC:846 :
(2010) 14 SCC 129, the non- explanation of human blood on the weapon of crime constitutes a circumstance against the Accused. It is incumbent upon the Accused to provide an explanation regarding the presence of human blood on the weapon. The Appellant has failed to do so. The judgments delivered by both the Trial Court and the High Court also do not reveal that the Appellant rendered any satisfactory explanation concerning the presence of blood on the recovered knife. While it may not be a decisive factor to determine the guilt, but a conspicuous silence does lend support to the prosecution case.SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 26 of 71
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38. Hence the human blood was found on Baniyan. Blood was detected both on iron pipe and blood stained gauze piece which are Ex.2 and Ex.4. Saria is proved as Ex.P-1 on record which was recovered from accused Vijay Mal. Another pipe seized and produced on record is Ex.P2 which was recovered from accused Fulena Yadav. The blood stained Baniyan is Ex.P3 which was seized vide memo Ex.PW9/I. The said Baniyan was handed over by PW-1 Sanjay to the IO at Safdarjung Hospital. The Saria was recovered from the bushes on the Kachha Raasta and the iron pipe was recovered from the roof of Jhuggi of accused Fulena Yadav. PW-12 does not remember that who had climbed the roof to collect the pipe from the house of the accused Fulena Yadav.
39. PW-13 has also deposed that when they went to Safdarjung Hospital then at that time Nand Lal was in operation theatre who was unfit for statement. The blood stained clothes of injured Nand Lal i.e. Baniyan was produced by PW-1 Sanjay before the IO. Thereafter Sanjay went with Police investigating team at Taliwalan Dera where IO/ PW-14 had prepared site plan at the instance of PW-1 Sanjay. Thereafter they went to the house of accused No.1 Fulena and No.2 Vijay who were arrested vide memo Ex.PW9/C and Ex.PW9/D. Their disclosure statements were recorded vide Ex.PW9/A and Ex.P9/B. At the instance of accused No.2 Vijay one iron rod/ Saria was recovered from bushes at Kachha Rasta. At the instance of accused Fulena Yadav one pipe was recovered from the roof of Jhuggi of accused Fulena SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 27 of 71 Yadav which was seized vide memo Ex.PW9/F. PW-13 has correctly identified the iron rod as Ex.P1 which was recovered at the instance of accused No.2 Vijay. The pipe is proved as Ex.P2 which was recovered at the instance of accused Fulena. The blood stained Baniyan is proved as Ex.P3 which was handed over by PW-1 to the investigating team/ IO at Safdarjung Hospital and the same belongs to deceased Nand Lal. Cross examination of this witness is nil after giving an opportunity.
40. PW-14 SI Santosh Pabri is IO in this case who has deposed that when he had reached at Sardarjung Hospital then he met PW-1 Sanjay and PW-10 Jasmita in the Hospital on 30.10.2007. The injured Nand Lal was in operation theatre who was unfit for statement. PW-14 has recorded the statement of PW-1 and PW-10 under Section 161 Cr.PC. The blood stained Baniyan of injured Nand Lal was produced and handed over to IO by PW-1 Sanjay at Safdarjung Hospital which was seized vide memo Ex.PW9/I. Thereafter PW-1 went with investigating team at Taliwalan Dera where Ex. PW14/A the site plan was prepared at the instance of PW-1 Sanjay. PW-14 with PW-1 went to the house of accused Jhuggi No. J-87, Taliwalan Dera where both the accused Fulena Yadav and Vijay Mal were found. Supplementary statement of PW-1 Sanjay was recorded. Accused were arrested vide memo Ex.PW9/C and Ex.PW9/D and their disclosure statement was recorded vide Ex.PW9/A and Ex.PW9/B. At the instance of accused Vijay one iron Saria was recovered from bushes on Kaccha Rasta which was seized vide mem Ex.PW9/E and sealed with the seal of SP. One pipe was recovered from the roof of Jhuggi of accused Fulena at the instance of accused Fulena Yadav which was seized vide memo SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 28 of 71 Ex.PW9/H. The seal after use was handed over to HC Satender. Both the accused are correctly identified by PW-1 before the Court. The case property was deposited with Malkhana on the next day.
41. PW-14 on receipt of DD No.4A regarding the death of injured Nand Lal went back again to Safdarjung Hospital alongwith HC Ghasi Ram and inquest paper Ex.PW14/B were prepared. After Post Mortem body was handed over to PW1 vide receipt Ex.PW14/E. The Post Mortem Doctor had handed over blood gauze in a bottle duly sealed with the seal of SJH which was seized vide memo Ex.PW14/F. Hence the blood gauze belong to the deceased. After that PW-14 had went to the spot and met Sunder Lal/ PW-3 who claimed himself as eye witness and gave his statement under Section 161 Cr.PC. NBWs against accused Subhawati and Lorik were obtained. The articles were deposited at FSL Rohini and after collection of FSL result the same are filed which are Ex.PW14/G and Ex.PW14/H. PW-14 has also proved the Saria as Ex.P1 recovered from accused No.2 Vijay, one pipe Ex.P3 recovered from accused Fulena Yadav and blood stained Baniyan as Ex.P3 which belongs to the deceased Nand Lal and handed over by PW-1 which was seized by memo Ex.PW9/I.
42. In cross examination it is deposed by PW-14/IO that he had recorded the statement of PW-1 and PW-10 under Section 161 Cr.PC at the hospital on 30.10.2007. It is proved by prosecution through PW-1 that his father was wearing Baniyan at the time of incident which was soaked in blood. The Doctor at the same time also told PW-14 that it is Baniyan of the injured Nand Lal. Signature of PW-1 was not obtained SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 29 of 71 in site plan. However the site of incident is not in dispute in evidence . It is deposed by PW-14 that accused Fulena himself took the iron pipe from the roof of his house and produced the same to PW-14. After that they had went for recovering the iron rod in the bushes. Public person were present near bushes but they did not join the investigation despite request.
43. The main defence put by the accused person is that the PW-1 Sanjay was trying to hit accused No.1 Fulena Yadav. At that time the deceased Nand Lal had tried to intervene and the attack given by PW-1 was suffered by Nand Lal. It is settled law that evidence as to the circumstantial evidence must be consistent only with the guilt of the accused and when evidence is consistent then any other rational explanation is there only then there is an element of doubt, benefit of which could be given to the accused. However any irrational or unnatural or highly improbable explanation will not be taken into consideration. The test is of probabilities upon which a prudent man may base his opinion. In the present case PW-16 has reported 4 injuries. The first injury is on fronto pariteo-temporal area of scalp, second injury is over left parital eminence upon left ear, the third injury is over the left parital region interior from upper part (boarder) ear 9 cm from left eye brow. Injury No. 2 and 3 are lacerated one. The injury on head was found with extra vasations of blood underneath the scalp drephine craniotomy over right parital region, fracture of frontal bone was seen. Subdural haemorrage was found on right front tempo parital area. Brain was oedemotous. Hence it cannot be said that the said 3 injury on the head could be caused by only one hit allegedly SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 30 of 71 caused by PW-1. It is also not naturally possible that each of the 3 time PW-1 was allegedly trying to hit accused No.1 Fulena Yadav and every time he hit his father Nand Lal. Hence the explanation produced by the accused persons is improbable explanation which cannot be sustained on the face of medical evidence. Further, had PW-1 hit his father Nand Lal the deceased and accused person were not doing anything at the spot then the first reason with PW-1 would be to take his father to the hospital when his mother / PW-10 was also present there. It was not natural for PW-1 to run away from the spot leaving his father in unconscious condition with his mother/PW-10 sitting there. The only probable situation which comes out is that PW-1 had to run from the spot only for the reason that his life was under continuous threat. It has come in the evidence of PW-1 and PW-10 that life of PW- 1 was under threat from accused person only as accused person continued to beat the deceased Nand Lal and they were also throwing hits on PW-1. It is deposed by PW-10 that PW-1 has to run away from the spot to save himself for his life. At that time the deceased Nand Lal had also fallen unconscious. It is also deposed by PW-10 that she rushed to the spot to save her husband and she was also assaulted by accused person. Accused Fulena Yadav was having Saria and accused Lorik Yadav who is PO was having wooden Danda. In examination in chief though it is deposed by PW-10 that accused Fulena Yadav was having brick however it is also deposed that accused Fulena Yadav was having Saria. However in cross examination it is denied that accused Fulena Yadav was not having Saria and accused Subhawati was not having brick or that they were not present at the spot. It is deposed by PW-1 that accused Fulena Yadav was having iron rod/ Saria and SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 31 of 71 accused Subhawati was having brick in her hand. Accused Subhawati had hit brick on the head of the deceased Nand Lal. PW-1 had correctly identified accused Subhawati who had assaulted deceased Nand Lal by brick. There is no cross examination of PW-16 by the accused person if such injury could not be caused by Saria, iron pipe or brick or that such injury could not caused Saria and iron pipe recovered during investigation and examined by FSL.
MOTIVE TO COMMIT THE CRIME
44. It has come on record that there was one altercation in the morning. It is admitted by PW-1 during cross examination dated 18.04.2012 as correct that there was no family enmity or any type of dispute between family of PW-1 and family of accused person prior to incident dated 29.10.2007 at 9:00 PM. PW-3 during re-examination by learned Addl PP for State has deposed that a quarrel had taken place at 11:30 AM to which there was no cross examination by accused person and therefore it is proved on record that earlier in the day a quarrel had taken place between the same parties at 11:30 AM. Hence there was no reason with PW-1 to go and hit accused Fulena Yadav between 8:00 PM and 9:00 PM on 29.10.2007 had there was no issue or enmity between them. Accused Fulena Yadav in answer to Question No.2 in his statement under Section 313 Cr.PC had explained that his child was playing when deceased Nand Lal had arrived who started beating child of accused Fulena Yadav. When accused Fulena Yadav went there then deceased Nand Lal started abusing him. At that time PW-1 Sanjay alongwith 4-5 unknown person arrived who had iron rod in their hand SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 32 of 71 and they had hit such iron rod on accused Fulena Yadav on which accused Fulena Yadav had fallen down. The rod had slipped and hit the deceased Nand Lal. The other person who came had also hit the deceased Nand Lal under confusion as it was dark night. The deceased Nand Lal had fallen unconscious. Public person had tried to catch PW- 1 Sanjay who had successfully escaped. Accused Subhawati in her statement under Section 313 Cr.PC had generally denied all the evidence put against her.
45. PW-3 in cross examination dated 01.06.2010 has deposed that the quarrel he was talking about is the quarrel that had taken place earlier in the day at 11:30 AM. In cross examination by learned Addl. PP for the State he has denied that no quarrel had taken place at 11:30 AM on 29.10.2007. Hence the accused person have not disputed the quarrel about 11:30 AM. PW-1 has deposed that both the party knew each other for the last 10-15 years residing in the same area. They are residing within 250-300 meters of each other. It is also not disputed that house of accused fall in another Gali. It is also not disputed that Durga Mandir is about 30-35 meters away from the house of PW-1 and also that of the deceased Nand Lal. Hence it has come on record that earlier in the day there was an altercation between the parties. PW-3 has deposed on 04.07.2012 that on 29.10.2007 at about 12:00 noon there was a quarrel between accused Vijay Mal and PW-1 Sanjay. Thereafter police came at the spot and both of them were taken to police station by the police. PW-3 had witnessed the said incident. He did depose about incident in the evening and now he resiled from his said earlier statement that he was present during the evening incident at SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 33 of 71 8:30 PM. Now he has claimed that he was sitting in booth alongwith HC Mahesh Kumar. Hence the above deposition of prior altercation between accused Vijay Mal and PW-1 between 11:30 AM to 12:00 Noon on 29.10.2007 is neither disputed by the prosecution nor it is disputed by the accused person during recording of evidence. Hence the earlier altercation between the PW-1 and accused No.2 in which both the parties were involved i.e. accused No.2 and PW-1 shows that this incident had increased tension between both the parties which continued to sway them in the evening for the second incident between 8:00 PM to 9:00 PM. Hence motive existed between the parties to start a quarrel and to settle their scores. Hence it has come in evidence and stands proved that accused person had motive to cause attack upon PW-1 and deceased Nand Lal.
46. It was held by Hon'ble Supreme Court of India in case titled Balu Sudam Khalde and another Versus State of Maharashtra AIR 2023 SC 1736 that there is no fixed or straight jacket formula for appreciation of ocular evidence. There are judicial evolved principles. The approach should be to see whether the evidence of witness read as a whole appears to have a ring of truth. The general tenor of the witness has to be seen and to see whether earlier evaluation of the evidence is shaken as to render it unworthy of belief. The relevant paras are reproduced hereinunder:
Hon'ble Supreme Court in Balu Sudam Khalde and another Versus State of Maharashtra AIR 2023 SC 1736, has observed as under:-
"25. The appreciation of ocular evidence is a hard task. There is no fixed or straight jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 34 of 71
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which did not have this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 35 of 71 witness to be a human tape recorder.
X. In regard to the exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events, which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination by counsel and out of nervousness mix up facts, get confused regarding the sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the latter statement, even if the latter statement is at variance with the former to some extent it would not be helpful to contradict that witness."
47. it was held by Hon'ble SC in case titled Selvamani vs The State Rep. By The Inspector of Police on May 08, 2024 in Criminal Appeal No(S).906/2023 =2024 INSC 393 that the evidence of prosecution witness cannot be rejected in toto merely because prosecution has chosen to treat him as hostile and cross examined him. The same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof and that portion which is consistent either with the case of the prosecution or defence can be relied upon. The relevant part thereof are admissible in law can be used. The relevant paras are reproduced hereinasunder:
Hon'ble Supreme Court of India in case titled Selvamani vs The State Rep. By The Inspector Of Police on May 08, 2024 in CRIMINAL APPEAL NO(S).906/2023 =2024 INSC 393 SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 36 of 71
10. This Court, in the case of C. Muniappan and Others v. State of Tamil Nadu10, has observed thus:
"81. It is settled legal proposition that : (Khujji case, SCC p. 635, para 6) '6. the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.'
82. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543], Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516], Radha Mohan Singh v. State of U.P.,(2006) 2 SCC 450], Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360] and Subbu Singh v. State, (2009) 6 SCC 462.
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
84. In the instant case, some of the material witnesses i.e. B. Kamal (PW
86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law.
Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.
85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. Vide Sohrab v. State of M.P., (1972) 3 SCC 751, State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, State of Rajasthan v. Om Prakash, (2007) 12 SCC 381, Prithu v. State of H.P., (2009) 11 SCC 588, State of U.P. v. Santosh Kumar, (2009) 9 SCC 626 and State v. Saravanan, (2008) 17 SCC 587"
SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 37 of 71xxxxxxxxxxxxxxxx 57.4. In fact, it is not at all appreciable to call a witness for cross- examination after such a long span of time. It is imperative if the examination-inchief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial.
48. It is already held above that the prosecution has successfully proved that accused No.1 Fulena Yadav and accused no. 3 Subhawati were present at the spot. In evidence of PW-10 it is suggested that when PW-1 was hitting accused No.1 Fulena Yadav at that time deceased Nand Lal came in between. PW-3 has deposed that hot words were exchanged between PW-1 and accused Fulena Yadav and also wife of Fulena Yadav. Wife of accused Fulena Yadav is accused No.3 Subhawati. It is deposed by PW-3 that bricks and stones were used during such hittings. In cross examination dated 01.06.2010 PW-3 has deposed that he could not see that who hit whom in the darkness and therefore PW-3 has turned hostile to the case of the prosecution on this aspect. However it was deposed by PW-3 that bricks and stones were being hit. The case of the prosecution is that the accused No.1 Fulena Yadav had used one iron pipe, accused No.2 Vijay Mal had used one iron rod/ Saria and accused No.3 Subhawati Yadav had used brick to hit the deceased Nand Lal. Hence the testimony of PW-1, PW- 3 and PW-10 is consistent and reliable and proves on record that there was altercation at about 8:30 PM between Nand Lal on one hand and all the three accused person on the other hand in front of Durga Mandir. The deceased Nand Lal was returning home from his job after having parked his motorcycle near Durga Mandir. The PW-3 in spite SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 38 of 71 of this hostility to the case of the prosecution deposed that after he reached at the spot then Fulena Yadav had abused him. During examination in chief dated 11.08.2009 it is deposed by PW-3 that accused No.1, 2 and 3 were present at the spot. It is deposed that how the quarrel had started. On his way accused No.1 Fulena Yadav and No.2 Vijay Mal had started abusing the deceased Nand Lal on the pretext of quarrel taken place between the son of deceased Nand Lal and son of accused No.1 Fulena Yadav which was earlier patched up with the intervention of beat officer. Hence the earlier dispute which was patched up with the intervention of beat officer is also not disputed by accused person during cross examination of PW-3. The deceased Nand Lal was abused by accused No.1 and accused No.2 At that time accused No.3 Subhawati had also reached there and exchange of hot words had increased. PW-1 and PW-10 in the meanwhile had also reached at the spot. Accused No. 1 and 2 had hit deceased Nand Lal on his head with Saria. The said deposition is read in reference to the evidence already discussed above that Saria / iron rod was recovered from accused Vijay Mal and iron pipe was recovered from accused Fulena Yadav. Accused Subhawati threw bricks on deceased Nand Lal and PW-1 Sanjay. Accused Lorik Yadav had caught hold of deceased Nand Lal. The above deposition is read with deposition of PW-1 and it proves that the incident had happened on that day. On the time of receipt of injury the presence of accused No.1, 2 and 3 and one Lorik Yadav is proved on record. The interception of deceased Nand Lal and that he was abused by the accused No.1 and 2 has also stood proved on record. PW-10 had reached at the spot on hearing that her husband was being beaten and she had seen that accused person were beating her SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 39 of 71 husband and her son PW-1. She rushed to save life of her husband deceased Nand Lal and her son PW-1. She was also assaulted during such process. She had remained with her husband at the time when deceased Nand Lal had fallen unconscious, taken to DDU Hospital and thereafter to Safdarjung Hospital.
49. In the site plan Ex.PW14/A at point XA is the place where the altercation had occurred. The point XA is between police booth and Durga Mandir. It does not show that any of the accused or the deceased Nand Lal or PW-1 were residing near point XA. Hence all the above person must have reached at point XA for some purpose. It is deposed by PW-3 that the deceased Nand Lal was running a Kirana shop was coming from main road and going towards his residence. At that time accused No.1 and 2 has intercepted him and started abusing deceased Nand Lal on which quarrel had taken place. It is deposed by PW-3 in his deposition dated 11.08.2009. PW-3 has turned hostile . In the statement under Section 313 made by accused No.1 Fulena Yadav in response to question No2, it is stated that his child was playing. The deceased Nand Lal had arrived and started beating his child. When accused Fulena Yadav had protested on which deceased Nand Lal had started abusing accused Fulena Yadav. In the meanwhile PW-1 alongwith 4-5 unknown person arrived who had iron rod in their hand which they blew over accused Fulena Yadav. When accused Fulena Yadav had ducked then the rod had hit the deceased Nand Lal. Now contradictory/improved version is given by accused Fulena Yadav that it is not PW-1 but those 4-5 person who gave Saria/iron rod blow. Other person had hit the deceased Nand Lal in confusion. Thereafter SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 40 of 71 public person had arrived when PW-1 has successfully escaped. Someone made call to PCR. Police had arrived and carried deceased Nand Lal to hospital. The above response by accused No.1 Fulena Yadav was in response to question No.2. In answer to question No.3 it is stated that PW-1 had assaulted accused No.1 Fulena Yadav on which FIR was registered separately against PW-1. PW-1 had remained absconded till 4 days. However the above fact is found incorrect during evidence. PW-1 had reached at the hospital. It is deposed by PW-14 that on 29.10.2007 when he had reached at Safdarjung Hospital then PW-1 was present in the hospital where he had also gave statement to PW-14. The blood stained Baniyan of deceased Nand Lal was also produced by PW-1 to PW-14. Hence the PW-1 has conducted himself naturally as he knew that his father had got injured due to such beating and to get his father proper treatment PW-1 had immediately reached at the hospital whereas the incident is dated 29.10.2007. This is one of the circumstance which proves that PW-1 had to ran away from the spot to save himself from the assault caused upon him at the spot XA in site plan Ex.PW14/A.
50. The accused No.1 Fulena Yadav had produced a new story that his child was being beaten by deceased Nand Lal though this fact was not put in cross examination of PW-1. It is suggested to PW-1 in cross examination dated 19.03.2012 that accused Fulena Yadav and his son Deepak had a simple talk with the deceased Nand Lal and no other person was available there. It is suggested that it is only PW-1 who was abusing and assaulting accused No.1 and thereafter PW-1 had allegedly brought iron rod to beat accused No.1 Fulena Yadav and his SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 41 of 71 son Deepak. It is not the case of the accused person in cross- examination that the deceased Nand Lal was beating son of accused Fulena Yadav namely Sh. Deepak.
51. Though there is discrepancy in the evidence of prosecution that the opinion of Dr. Prem Kumar/PW-16 was not taken if such injuries can be caused by Saria and iron rod recovered in the case. However the nature of injury was caused by blunt force impact and all injuries were ante-mortem in nature and therefore the prosecution has successfully proved on record that the injuries caused upon the deceased Nand Lal was caused by the iron rod/ Saria and pipe recovered in the matter. The injuries are to be seen in the light of all the facts available in the circumstances of the case. It was laid down in case titled Pershadi vs. State AIR 1955 ALL 443, 1955 CRILJ 1125, AIR 1955 Allahabad 443 at para No.31 that when the inference of guilt from the proved incriminating circumstantial fact is more natural and probable hypothesis then the other, the onus of offering an explanation for the incriminating facts lies on the accused. If he does not offer an explanation or falsely denies the very existence of incriminating fact then it in itself is a circumstantial fact against him. The guilt is legitimate inference from the incriminating facts and the added circumstantial fact of failure or refusal to offer an explanation for the incriminating fact consistent with his innocence. It is immaterial in such a case whether the Court can imagine an explanation or not. If the inference of guilt from the proved incriminating facts is as much a natural or probable hypothesis as any other and when accused failed to explain it then it is treated as additional circumstantial fact to infer his SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 42 of 71 guilt. It is not necessary that a circumstantial evidence of prima facie case has to be made out against the accused and accused is required to explain any circumstance against him under Section 313 Cr.PC. Accused can be questioned at any stage of trial and whether a prima facie case is made out against him or not is seen after his examination.
52. Accused Subhawati has plainly denied all evidence against her in her statement under Section 313 Cr.PC. However she has stated in answer of Question No.36 that PW-1 Sanjay and PW-10 had enmity with her husband who is accused No.1 Fulena Yadav and therefore accused No.3 Subhawati was falsely implicated by them. Hence the plea of accused person that there was no enmity between them earlier to this incident is found incorrect. When there was such enmity then accused persons are liable to explain such enmity before the present Court. Had they remained silent and not stated anything in reference to their right to remain silent but when the accused person seek to take benefit of the fact of previous enmity between them and PW-1 and PW-10 on the other hand then such enmity is liable to be explained by the accused person and they cannot be permitted to remain silent in this respect failing which adverse inference is liable to be drawn against them that due to existence of such enmity the accused person had motive to attack the deceased Nand Lal, PW-1 and PW-10. Since the above enmity remained unexplained by the accused person and hence adverse inference is drawn against accused person that they had motive to beat deceased Nand Lal, PW-1 and PW-10
53. The relevant para No.26 to 30 as laid down in citation title SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 43 of 71 Pershadi vs. the State (Supra) which was further upheld by Hon'ble Supreme Court of India in case titled Pershadi Vs. State of Uttar Pradesh AIR 1957 SC 211 = 1957 Cri LJ 328 relevant para of which are reproduced hereasunder:
26. Though possession of the knowledge that an article is kept at a certain place is not the same as possession of it, and though a person cannot bo convicted under Section 411, I. P. C., merely on its being proved that he knew where the stolen property was concealed, the inference to be drawn from his possession of the knowledge can be the same as that to be drawn from his possession of the article itself. A person who steals another's property may retain it in his own possession or may conceal it in a place not in his occupation. Similarly a person who murders and robs another of his property may retain it in his own possession or hide it in a place not in his occupation. In other words, whether the person has the property in his own possession or knows where it is concealed, he might have been the actual thief or the actual murderer. There is no reason for saying that if the person is in possession, he may be presumed to be the thief but if he is not in possession and only knows the place where it is concealed, he cannot ba presumed to be the thief.
The inference of being the thief is drawn from the fact of possession on account of certain connection between the possession and the stealing; the same connection may exist between the knowledge of the place of concealment and the stealing, or if it is accompanied by murder, of the murder. When the person himself does not say, and there is also nothing to indicate, that he learnt that the property was concealed in a certain place either because he heard about it from another person or' saw another person hiding it there or he accidentally came upon the place of hiding, there is no justification for refusing to draw, from the possession of the knowledge of the place of hiding, the presumption that one would draw from the fact of possession.
27. There is a considerable amount of confusion in the law about calling upon the accused to explain his possession and the effect of his refusal to explain or offering a false explanation. It has been argued that even if no explanation is furnished by the accused, he cannot be found guilty if the Court itself can conceive of an explanation. It has also been argued that unless a prima facie case is made out against an accused, he cannot be asked to explain. As a corollary it has been argued that no adverse inference can be drawn against him from; his failure or refusal to offer an explanation, or, acceptable explanation, and that his failure or re-fusal does not make the incriminating fact of 'possession more incriminating. There is no substance at all in the last two arguments. The. first argument found SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 44 of 71 favour with the learned Judges who decided the case against Basangouda (D), but I am doubtful of its soundness.
In the case of Narayana (Aj, Reilly J. stated:
"There may be a hundred possible explanations other than that he himself was the original thief.
But it is not for the Judge or Jury to invent or imagine such explanation. It is for the accused person to give his explanation, if he has one.
(page 240). ***** It is not the law that the Judge or Jury must be certain that no other explanation of the facts is possible before they find the accused guilty. * * *** All the facts proved must be clearly in their minds, including the very important fact that the accus ed person has offered no explanation of his possession of the stolen things. **** * It is not required that they should be satisfied that no other conceivable explanation is consistent with the facts.*** * * One of the facts before them, which it is their duty to take into account, is the fact that he has offered no explanation."
(page 241).
Beaumont C. J. disagreed with those observations in Basangouda's case (D). He conceded that one "of the circumstances to be taken into account is the fact that the accused offered no explanation or offered a particular explanation. He stated that an accused is not bound to give any explanation at all, that relying upon the law (that circumstantial evidence, must be consistent only with the guilt of the accused and must not be consistent with any rational explanation indicating innocence of the accused) he may not open his mouth because of the evidence being consistent with the guilt of somebody else, that the fact that he does not open is mouth cannot be used against him and that it is the duty of the Court to invent possible explanation. Really there was no necessity for the learned Chief Justice's making these observations; he held the circumstantial evidence to be consistent only with the guilt of Basangouda. He found that there was no rational explanation for the possession of the stolen property and therefore there arose no question of the Court's duty to take into consideration, rational explanations even if not offered by the accused. The observations were obiter dicta. Moreover, the observation that an accused is not bound to offer any explanation and that the fact that he does not open his mouth cannot be used against him is hardly consistent with the observation that one of the circumstances to be taken into account is that he has offered no explanation.
In -- 'In re Singaram (C)', the learned Judges disagreed with the observations of Reilly J. and Beaumont C. J. and observed at p. 155:
"One can very well imagine a case where a jewel on the person of a murdered individual came to be in the possession of another without any SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 45 of 71 kind of reasonable explanation being offered by that individual. The fact that no rational explanation is possible or that the explanation offered is unacceptable, . should not militate against the innocence of the individual with regard to the offence of murder. Something more is necessary than mere possession of articles."
As I stated earlier, this observation was not necessary for the decision of the case and therefore loses much of its force. The law is that circumstantial evidence must be inconsistent with every rational hypothesis of innocence of the accused. It is not required to be inconsistent with every imaginable or conceivable hypothesis of innocence. Were it so, no conviction would at all be possible on circumstantial evidence. It is always possible to imagine facts consistent with the innocence of the accused. Even in a case where there is direct evidence against an accused, it is possible to imagine that the evidence is false; in the case of circumstantial evidence, the scope for this imagination is even greater because not only can the witnesses who depose about the circumstantial facts be imagined to be false but also it can be imagined that somebody else committed the offence and fabricated the circumstantial evidence against the accused.
So long as a Court has to depend upon testimony, it can always imagine that the testimony is false and that the crime was committed by another person. But certainly the law does not require or even permit a Court to indulge in such imagination. The observation of Govinda Menon J. that "the fact that no rational explanation is possible, or that the explanation offered is unacceptable, should not militate against the innocence of the individual with regard to the offence of murder" at page 155 is against the established law and, I say with respect, is not sound. It is pointed out by Stephen that the caution against the admission of circumstantial evidence must not be excessive, as when some maintain that there should be no conviction unless guilt be the only possible inference from the circumstances, see Kenny's Outlines of Criminal Law, Fifteenth Edition, page 401. The only important restrictions on basing conviction for homicide on circumstantial evidence are, as pointed out by Kenny, that the fact that there has been a death must be proved fully and that the possession must be recent.
Illustration (a) in Section 114 itself speaks of want of explanation as a circumstance to be taken into account. So do all the writers on the law of evidence. As regards the effect of the failure or refusal to offer an explanation, the law makes no distinction between the inference of theft and that of murder. In every case in which an inference of, theft can be made, an inference can also be made of murder, if it was committed in the same transaction as the theft, and this is a sound law; if the theft and the murder are both committed in one transaction and a person found in possession of the stolen goods soon after the theft can be presumed to have committed it, there is no reason why he should not be presumed to have committed the murder as well. If the offers an acceptable explanation SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 46 of 71 which suggests that he did not commit the theft and the murder both or that he committed the theft but not the murder, the position may be different but when he offers no explanation, if one presumption can be drawn, the other also must be drawn. It is an arbitrary rule that there can be no presumption of murder in the absence of evidence that the accused was seen near the place of the murder and theft at or about the time when they were committed. Why he can be presumed to have committed the theft, but not the murder, in spite of there being no evidence to prove his presence in the vicinity is beyond my comprehension.
"The kinds of evidence to prove an act vary in probative strength, and the absence of one kind may be more significant than the absence of another; but the mere absence of any one kind cannot be fatal"; seee Wigmore, paragraph 118. When it is stated by some Judges that mere possession of stolen property is not sufficient for an inference of murder, they only reiterate what Greenleaf says in paragraph 31, Vol. III. According to him the force and value of the evidence of recent possession depend on several considerations. "If the fact of possession stands alone, wholly 'unconnected with any other circumstances', its value or persuasive power is Very slight';" (because there are several hypotheses which can explain his possession such as planting, picking up the article on its being thrown away by the real culprit, taking it from the real culprit in order to restore it to the owner, etc.) and "it will be necessary, therefore, for the prosecutor to add to the proof of other circumstances, indicative of guilt; * * ** * such as " the previous denial of the possession, by the party charged, or his refusal to give any explanation of the fact, or giving false or incredible accounts of the manner of the acquisition; ***** or that he was seen, * **** near the place, and at or near the time when the crime was committed; or other circumstances, naturally calculated to awaken suspicion against him and to corroborate the inference of guilty possession."
This exposition of the law by Greenleaf ought to remove many false notions. It shows that the failure or refusal to offer an acceptable explanation is itself a circumstance, that when one speaks of "mere possession", it means the absence of that circumstance or any other, that the presence of the accused near the place of occurrence at or near the time when it took place is only one of the circumstances which can be availed of and that motive, design and opportunity naturally calculated to awaken suspicion against him and to corroborate the inference of guilty possession may suffice.
28. The logical process involved in the admission and consideration of circumstantial evidence is explained by Wigmore in paragraph 32 et seq. The test for the admissibility of evidence to prove a circumstantial fact is that "the evidentiary fact will be considered when, and only when, the desired conclusion based upon it is a more probable or natural, or at least a probable or natural hypothesis, and when the other hypotheses or explanations of the fact, if any, are either less probable or natural, or at least SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 47 of 71 not exceedingly more probable or natural" (paragraph 32, page 421).
"Where even the possibility of a single other hypothesis remains open, Proof fails, though it suffices for Admissibility if the desired conclusion is merely the more probable, or a probable one, even though other hypotheses, less probable or equally probable remain open. It is thus apparent that, by the very nature of this test or process, a specific course is suggested for the opponent. He may now properly show that one or another of these hypotheses, thus left open, is not merely possible and speculative, but is more, probable and. natural as the true explanation of the originally offered evidentiary fact" (Paragraph 34, page 423). When a person is found in recent possession of stolen goods, several hypotheses can explain the fact of his possession;
"nevertheless the hypothesis that he was the taker is a sufficiently natural one to allow the fact of his possession to be considered as evidentiary. There has never been any question of this."
29. Kenny states that "an amount of testimony which is not sufficient to rebut the presumption of innocence entirely (i.e., to shift the burden of proof so completely as to compel the prisoner to call legal evidence of circumstances pointing to his innocence), may yet suffice to throw upon him the necessity of offering, by at least an unsworn statement, some explanation. If he remain silent and leave this hostile testimony unexplained, his silence will corroborate it, and so justify his being convicted" (page 388).
On page 395 he includes the accused's false statements and his silence among the principal forms of circumstantial evidence In -- 'Mangal Singh's case (R)', Young C. J. stated that the want of explanation of a very suspicious circumstance is itself circumstantial evidence. The Courts "regard false statements in explanation or defence made, or procured to be made, as in themselves tending to show guilt" as stated by Fuller C. J. in (1895) 40 Law Ed 1090 at p. 1095 (Z3).
In 'Basangouda's case (D)', the learned Chief Justice remarked that if the accused had an innocent explanation, "it is almost inconceivable that the accused would not have given it and mentioned who it was who gave them the property." "The silence of one of the discovery of property recently stolen in his possession & under his exclusive control, raises the presumption that, it came into his hands unlawfully."; 22 Corpus Juris Secondum, paragraph 597. 'In AIR 1954 SC 28 (22)', Sunder Lal was convicted because he could not offer a satisfactory explanation for his possession of the ornament worn by the murdered man. There is, therefore, not the slightest doubt that the failure or refusal of the accused to give a reasonable explanation for his possession of stolen property is an important circumstance indicative of the possession being criminal.
30. The argument that the accused refuses to offer an explanation on the grounds that he is not bound to explain and that the onus lies upon the SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 48 of 71 prosecution to prove his guilt has in most cases no factual basis. In most cases he does not refuse to offer an explanation; instead he denies the very existence of the circumstantial evidence. In the present ease, the appellant did not say that he was not bound to open his lips or to help the prosecution in proving his guilt: he did not refuse to offer an explanation. On the other hand, he denied the circumstantial evidence altogether, suggesting that there was nothing which he had to explain. In such a case, it seems to me, it is not open to Court to assume that he had refused to offer an explanation on the ground that he has a right to keep silent. I would go further and call it illegal. It is the Court's duty to see that justice is done in every case; justice consists in punishing the guilty and acquitting the innocent. A Court is not justified in assuming a fact, even in favour of an accused, when there is nothing to support the assumption. The saying that it is better to acquit ten guilty men than to convict one innocent man might have had its use in old days when the punishments were severe, the accused suffered from many disadvantages and it was not so difficult to bring the guilty to book. The principle that criminal Courts should bear in mind is; in the words of C. B. Pollock:
"To make a comparison between convicting the innocent man and acquitting the guilty is perfectly unwarranted. There is no comparison between them. Each of them is a great misfortune to the country and discreditable to the administration of justice. The only rule that can be laid down is that in a criminal trial you should exert your utmost vigilance and take care that if the man be innocent he should be acquitted, and if guilty that he should be convicted." (quoted in Donough's Principles of Circumstantial Evidence, 1918, 158.
DISCLOSURE AND RECOVERY OF ARTICLES OF OFFENCE FROM THE ACCUSED
54. The disclosure of accused No.1 Fulena Yadav is Ex.PW9/A. In the disclosure statement it is stated that at first they had excited the deceased Nand Lal by throwing abuses on him. Then Lorik Yadav had caught the deceased Nand Lal and accused No.1 and 2 had beaten the deceased with iron rod and accused No.3 Subhawati had beaten the decased with brick. At that time PW-1 had also reached there and they had beaten PW-1. However a family member of deceased Nand Lal SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 49 of 71 and neighbours rescued them. The above statement is not admissible under Section 27 of Indian Evidence Act, 1872. However accused No.1 Fulena Yadav had stated in disclosure statement Ex.PW9/A that the iron rod with which he had caused injuries was thrown by him on the roof of his home and accused No.1 going by himself can get recovered the said iron rod. Hence the above statement of accused No.1 Fulena in his disclosure is admitted to the limited extend as proved that he made the statement to IO/PW-14 in presence of HC Satender and Ct. Vijay that he can get recovered the iron rod from his Jhuggi which was used in commission of offence. The disclosure was made on 29.10.2007. The seizure memo of iron rod kind of pipe is Ex.PW9/H vide which accused No.1 Fulena Yadav had got recovered from the terrace of his Jhuggi one iron pipe on which blood was there length of which was 40 inch and thickness was 3 and ½ inch. The same was seized in the presence of HC Satender/ PW-13 and Ct. Vijay/ PW-9. PW-9 had identified the said iron pipe as Ex.P-2. It is admitted by PW- 9 that Ex.P-1 and Ex.P-2 both are pipes. Ex.P-2 was opened with an illegible seal. PW-13 HC Satender has deposed that the disclosure statement of accused No.1 and 2 vide Ex.PW9/A and Ex.PW9/B was recorded in his presence. Accused No.1 Fulena Yadav had got recovered one pipe from the roof of his Jhuggi which was sealed with the seal of SP. Seal after use was handed over to PW-13. Nothing contradictory has came out in the deposition of PW-9, PW-13 and the IO/ PW-14 regarding recovery of iron pipe from the roof of the Jhuggi of accused No.1 Fulena Yadav. The accused No.1 Fulena Yadav has denied the said recovery at all and claimed that they were implanted weapons and does not bear signature of any public witness. It is stated SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 50 of 71 in his statement under Section 313 Cr.PC that the above recovery contradicts evidence of PW-1 and PW-10 but it is not stated as how it contradicts such evidence. Hence when recovery is proved from accused No.1 Fulena Yadav under Section 27 of Indian Evidence Act 1872 and when Saria/ iron rod was found used during such altercation, the nature of injury are blunt and it is not rebutted in cross examination of PW-16 that such injury could not be caused by such Saria then to such proved recovery of iron pipe/ Saria from the terrace of Jhuggi of accused No.1 Fulena Yadav mere denial or mere silence does not serve any purpose. The inference of guilt from the proved incriminating evidence has come on record and now more natural and probable hypothesis then the other has to be taken. The onus of offering an explanation on the incriminating facts lies upon the accused. In this case accused has denied the very existence of incriminating fact which cannot be sustained and therefore guilt of accused No.1 is the legitimate inference from the incriminating facts and the circumstances of the case. It is not for the Court to imagine an explanation or to imagine if any other probable hypothesis is possible in the case. The relevant law and guideline as laid down at para No.31 of the citation titled Pershadi vs. State (supra) are reproduced hereasunder:
31. From the above discussion of the law the following propositions emerge as laying down the correct law:
(1) Circumstantial evidence to justify conviction must be inconsistent with any reasonable or rational hypothesis of guilt of the accused.
(2) When the inference of guilt from the proved incriminating (i.e. circumstantial) facts is a more natural and probable hypothesis than the other, the onus of offering an explanation for the incriminating facts lies upon the accused. If he does not offer any explanation, or falsely denies the very existence of the incriminating facts it is itself a circumstantial fact against him, even if the court is in a position to imagine an explanation.
The guilt is the legitimate inference from the incriminating facts and the SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 51 of 71 added circumstantial fact of failure or refusal to offer an explanation for the incriminating facts because it is not reasonable or rational to say that the accused would fail or refuse to offer an explanation consistent with his innocence if he could. It is immaterial in such a case whether the Court can imagine an explanation or not.
(3) If the inference of guilt from the proved incriminating facts is a less natural or probable hypothesis than the other, the Court cannot draw it and the accused must be acquitted whether he offers any explanation or not.
(4) If the inference of guilt from the proved incriminating facts is as much a natural or probable hypothesis as any other, the accused may be called upon to explain and if he fails or refuses, the Court may treat it as an additional circumstantial fact and infer his guilt. Or it may take judicial notice of the other hypothesis even without any explanation by the accused and acquit him. The instant case falls under proposition (2).
55. Accused No.2 in his disclosure statement Ex.PW9/B has stated that accused No. 3 Subhawati is his aunt. It is also stated by accused No.2 (since deceased) that accused No.1 Fulena Yadav is his uncle. Accused No.1 and 3 are husband and wife. It is more natural and probable for accused No.3 to get involved at such time of the beating of the deceased Nand Lal, PW-1 and PW-10.
56. It is denied during cross examination dated 19.03.2012 by PW-1 that accused No.1 Fulena and his son Deepak were having simple talk with the deceased Nand Lal and at that time no other person was available. There is no suggestion to PW-1 regarding absence of accused No.3 Subhawati at the spot. The deposition of PW-3 has remained consistent to the fact despite of his hostile deposition that accused Fulena Yadav was present at the spot who had also abused PW-3 when PW-3 had reached there. In his deposition dated 11.08.2009 it is deposed by PW-3 that Lorik Yadav brother of Fulena SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 52 of 71 Yadav and wife of Fulena Yadav who is accused No.3 namely Ms. Subhawati had also reached there. It is deposed by PW-10 that accused No.1, 2 and 3 and accused Lorik Yadav (since PO) came there. The presence of accused No.3 Subhawati at the spot remains unimpeached and proved on record. However it is suggested in cross examination to PW-10 and it is denied that accused No.3 Subhawati was not having any brick in her hand. It is suggested that accused Subhawati was not present at the spot. However it remained unexplained that where the accused Subhawati was present at that time. If plea of alibi is taken the burden of the same is on the accused to prove it. However no other place is disclosed and when the presence of accused Subhawati is proved in the deposition of PW-1, PW-10 and corroborated by PW-3 then accused No.3 cannot be permitted to remain silent and evasive to the evidence put against her under Section 313 Cr.PC. Hence this led to inference against accused No.3 Subhawati and the inference of guilt is drawn against her. There was no other reason for accused Subhawati to be present at the spot other than the dispute in the case. The nature of injuries proved in the evidence of PW-16 was by blunt force impact. Three injuries were reported all of which are on head and they can be caused both by Saria and brick since both Saria and brick can be injury by blunt force.
57. Another fact which has to be seen in the matter is that the brick has not been recovered in this matter. However the nature of injuries which can be caused by brick are proved on record. The presence of accused No.1, 2 and 3 and accused Lorik Yadav is proved on record. It was laid down at para No.13 of case titled Pershadi Lal vs. State SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 53 of 71 (supra) that possession is not an essential ingredient of the offence under Section302 IPC. The accused can be convicted of murder even though he was not possession of any property of deceased. What has to be seen is that whether there was motive with the accused person. It has come on record that accused person had motive to cause injury on the deceased Nand Lal and consequently on PW-1 and PW-10 due to their previous enmity. Earlier in the day there was dispute between both the parties i.e. the accused and the victim and which is proved vide oral evidence on record. The accused person were present at the spot from where from the deceased Nand Lal was going in front of Durga Mandir and hence they had sufficient opportunity with them to inflict injury on the victim and to remain prepared to cause the offence. The subsequent conduct of the accused person not informing the police nor calling ambulance to take injured to hospital shows their guilty mind. It has come in evidence of PW-3 dated 04.07.2012 that on 29.10.2007 that at about 12:00 PM both accused No.2 Vijay and PW-1 were taken to PS due to quarrel between them and this fact was not controverted by accused person in cross examination. It has come in evidence of PW-7 HC Mahesh Kumar that when he reached at the spot then it was revealed that injured was taken to DDU hospital by PCR which shows that accused person had fled away from the spot and they had not taken any step to take the deceased Nand Lal to the hospital nor they had made a call to the police which is an incriminating circumstance against them. It is deposed by PW-10 at page 3 of her cross examination that she had taken the deceased Nand Lal her husband to hospital in PCR Van. PW-12 has also deposed the same fact that the deceased Nand Lal was taken to hospital by PCR Van.
SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 54 of 71PW-10 has deposed that she had accompanied her husband the deceased Nand Lal. Had the accused person not beaten the deceased Nand lal and if they had no enmity with the deceased Nand Lal then in the event of assault upon the deceased Nand Lal, as per claim of the accused person, made by PW-1 and 4 to 5 person came alongwith PW- 1 then the first necessary course was to intimate the police regarding such assault on the deceased Nand Lal and secondly also to call necessary medical assistance for PW-10. Such was not the case and in fact accused person had not followed up the necessary course and ran away from the spot which supplements the fact that they had assaulted the deceased Nand Lal and that is why they were not bothered about the injury caused upon the deceased Nand Lal. PW-13 HC Satender has deposed that when he alongwith Ct. Vijay and IO/ PW-14 reached at the spot on 29.10.2007 then no eye witness met them. The house of injured deceased Nand Lal was found locked and PW-1 and PW-10 both were found at Safdarjung Hospital. It is deposed by PW-14 at page No.4 of his cross examination that he reached at the spot at 3:00 PM alongwith PW-1. PW-14 had asked the public person to join the investigation at the time of making recovery from accused No.1 Fulena Yadav but none agreed. Public person were present near Jhuggies. The Hon'ble Supreme Court of India case titled Gian Chand & Ors vs State of Haryana on 23 July, 2013 Citation;(2013)14 SCC 420 =Equivalent citations: AIR 2013 Supreme Court 3395 (Coram:2) has laid down that even when all witnesses are from Police Department then their evidence cannot be discarded merely because they are police witness. Their deposition must be subject to strict scrutiny and as far as possible corroboration in material particulars should be sought. The SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 55 of 71 wise principle is that the official acts are regularly performed and the prosecution case cannot be doubted on that ground alone. No infirmity is pointed out in the deposition of police witness. Therefore when no discrepancy is pointed out in the evidence produced by the police witness then it cannot be doubted that the official actions were not performed in regular course. The necessary para are reproduced here as under:
Hon'ble Supreme Court of India in case titled Gian Chand & Ors vs State of Haryana on 23 July, 2013 Citation;(2013)14 SCC 420 =Equivalent citations: AIR 2013 Supreme Court 3395 (Coram:2)
25. The next question for consideration does arise as to whether it is necessary to examine an independent witness and further as to whether a case can be seen with doubt where all the witnesses are from the police department.
In Rohtash v. State of Haryana JT 2013 (8) SC 181, this court considered the issue at length and after placing reliance upon its earlier judgments came to the conclusion that where all witnesses are from the police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought. The Court held as under:
"Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely.
In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon." (See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139; Akmal Ahmad v. State of Delhi, AIR 1999 SC 1315; M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan @ John v. Superintendent of Customs, AIR 2007 SC 2040).
26. In State, Govt. of NCT of Delhi v. Sunil & Anr. (2001) 1 SCC 652, this Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that it is an archaic notion that actions of the police officer should be viewed with initial SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 56 of 71 distrust. At any rate, the court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. 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 it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
27. In Appabhai & Anr. v. State of Gujarat AIR 1988 SC 696, this court dealt with the issue of non-examining the independent witnesses and held as under:
"The prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties."
28. The principle of law laid down hereinabove is fully applicable to the facts of the present case. Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.
29. In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness. Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 57 of 71 nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed. In view of the above, the submissions of the learned counsel for the appellants in this regard, are held to be without any substance.
58. It is settled law in case titled Visveswaran v. State Rep. By S.D.M. reported in (2003) 6 SCC that every defect in investigation need not result in acquittal. The only requirement is to be extra cautious while evaluating evidence. Any deficiency or irregularity in investigation need not lead to rejection of the case of the prosecution. Therefore non joining the public witness in this case does not harm of the prosecution and no infirmity is found in the evidence of police witness in this regard. The necessary para of the citation cited above is reproduced hereasunder:
Hon'ble Supreme Court of India in the case of Visveswaran v. State Rep. By S.D.M. reported in (2003) 6 SCC has held as under :
12........It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
59. Learned Counsel for the accused has argued that PW-1 has deposed that on 29.10.2007 the incident had occurred at 9:00 PM whereas in the statement under Section 161 Cr.PC of PW-1 mentions that the time was around 8:30 PM. As per PW-1 his statement was not correctly recorded by the police which means that his statement was false under Section 161 Cr.PC and also that complainant in the matter is HC Mahesh Kumar in the matter who is a police officer. Hence SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 58 of 71 investigation was started on receipt of information by the police. FIR in the matter was initially registered under Section 308 IPC on 30.10.2007 at about 8:10 AM. Vide DD No.4A Ex.PW4/A dated 31.10.2007 Duty Ct. Amit had intimated about assault on deceased Nand Lal and his consequent death. However the FIR is registered in reference to General Diary No.11A which was received at 8:10 AM on 30.10.2007. Ex.PW6/A is DD No.35A dated 29.10.2007 which was recorded at 9:08 PM that some altercation had occurred near police booth which was assigned to HC Mahesh Kumar. The same is also recorded as Ex.PW2/A. Hence DD No.35A was recorded at 9:08 PM. PW-1 has deposed on 15.03.2012 that the incident was around 9:00 PM on 29.10.2007. When the PW-1 has stated that incident was around 8:30 PM then it does not make it a much discrepancy in the evidence of prosecution in view of the fact that the incident has allegedly taken place for about 10 minutes. The PW-1 has ran away from the spot to save his life. Such variation in reporting the time does not prejudice the case of the accused on material aspect as witness tend to report variously about the time as there were not expected to see the watch continuously. Time of half an hour is not of such a material importance which can prejudice the case of the accused when the incident was reported within half an hour to the police. Some public person had reported to police. PW-1 and PW-10 were soon after found in the hospital. PW-1 had ran away from the spot to save his life. Hence it cannot be said that the information was not received at PS in due time. When the FIR was registered on next day on 30.10.2007 then at the most it can be said that it is a case of faulty investigation but this irregularity does not lead to rejection of the case of the prosecution SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 59 of 71 which is proved by other evidence.
60. It is submitted that in his deposition dated 15.03.2012 the PW-1 has named 19 person who were involved in the offence and this is contradictory to the story of the prosecution as only 4 accused are chargesheeted. It is noted that the PW-1 in this very case had already filed application under Section 319 Cr.PC which is pending decision and the same is separated from this case file for the reason that the present case is matured and the application under Section 319 is at the initial stage of consideration. The PW-1 has also filed a separate complaint alleging facts additional those stated in his statement under Section 161 Cr.PC. First PW-1 is not bound by his statement under Section 161 Cr.PC which he is also not required to signed. Secondly, such evidence is later on brought by PW-1 has to be contradictory to his earlier evidence. By naming additional accused does not lead to inference that it is a contradictory evidence to the accused chargesheeted. If in the event PW-1 is not able to prove it then only this much can be said that such part of his statement was not proved. Material contradiction therefore cannot be seen in the deposition of PW-1 in this respect when PW-1 since beginning is stating that police had acted against fair investigation which can also be seen from the record when in his deposition dated 31.05.2011 PW-1 has deposed that police had not recorded his statement in this case and forced him to sign blank papers. He did not initially depose before the present Court for the reason that he want to depose his complete case in the complaint filed before learned MM. He similarly did not depose for the similar reason on 08.7.2011 and warning was also given to him both on SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 60 of 71 31.05.2011 and 08.07.2011. The conduct of PW-1 shows that he believed since very beginning that the police had not investigated the matter fairly and not recorded his correct statement. Therefore naming additional accused in his deposition cannot be read as contradiction.
61. PW-1 has deposed on 17.12.2004 that he had also sustained injury. It was incumbent upon the police officer to have medically examine both PW-1 and PW-10. PW-10 has stated in her statement under Section 161 Cr.PC dated 30.10.2007 that the wife of accused No.1 had hit her husband with brick and when PW-1 tried to save his father then he was also beaten. In her deposition PW-10 has stated that she was there at the spot to save her husband and in the process of assault she was also assaulted by accused person. Hence it shows that the police had not investigated this matter in proper spirit and it was incumbent upon them to medically examine both PW-1 and PW-10. Hence this deposition of PW-10 that she had also received injury does not go against the case of the prosecution but it a matter of faulty investigation.
62. Learned Counsel for the accused has referred to the deposition of PW-9 dated 16.09.2010 at first page that at the instance of accused Fulena Yadav one pipe was recovered from roof of the Jhuggi and at the instance of accused Vijay Mal a Saria was recovered from bushes of Kaccha Rasta whereas in cross examination at page 3 of same evidence it is deposed by PW-9 as correct that Ex.P-1 and Ex.P-2 both are pipes. The above testimony of PW-9 alone cannot affect the case of the prosecution as the seizure memo Ex.PW9/H records that it was SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 61 of 71 Saria a kind of pipe which was allegedly recovered from accused No.1 Fulena Yadav and similarly in seizure memo from accused No.2 Vijay Mal Ex.PW9/G records that it was a iron pipe. A iron pipe rather it could be called a Saria or iron rod which has to be so confronted to the witness to explain. It is incumbent on the part of the accused to confront this deposition that earlier he had told that it was a Saria later it was an iron pipe and in the absence of such confrontation PW-9 could not have explained what did he mean to say during his deposition. It is not in dispute that the recovery was of iron pipe or iron rod, as the case may be, both of which are made of iron and when it is pointed out as a contradiction then such contradiction must be put to the witness in the absence of which the accused cannot derive benefit out of it. Human blood was found on them which has remained unexplained.
63. Hence it is held that the accused person had attacked the deceased Nand Lal with Saria / iron pipe and brick and caused him such bodily injury. The deceased Nand Lal had immediately thereafter expired on 30.10.2007 and by necessary inference from MLC Ex.PX-1 and the postmortem report Ex.PW14/D the deceased Nand Lal had expired due to such assault and injury received who could not regain consciousness even after reaching the hospital. He continued to remain unconscious after receipt of such injuries. Hence the prosecution has successfully proved the second ingredient under section 34 IPC against accused person.
64. Now it has to be seen that whether the prosecution has SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 62 of 71 successfully proved that the accused person had intentionally caused death or caused such bodily injury which is likely to cause death (Part- I of Section 304 IPC) or that the accused person had knowledge that the bodily injury is such that it is likely to cause death (Part-II of Section 304 IPC).
65. It has to be seen that whether the accused had necessary intention to cause death of deceased Nand Lal or that the accused had knowledge that his acts were likely to caused death. It has come on record that the parties had quarrel amongst them earlier in the morning around 11:30 AM regarding dispute of their children. Hence the parties have animosity against each other developed due to such incident during the day. The nature of weapon used in the present case is Saria/ iron pipe. As per deposition of PW-3 exchange of hot words started first. As per deposition of PW-1, PW-3 and PW-10 read together the accused No.1 Fulena Yadav and accused No.2 Lorik Yadav had used Saria/ iron pipe and accused No.3 Subhawati had used brick. Now it has to be seen that from where the said Saria/ iron pipe were brought by the accused person. The statement under Section 161 Cr.PC of PW- 3 is Ex.PW3/A which mentions that accused No.1 Fulena Yadav, the deceased accused Vijay both of whom had picked iron rod from the spot and started beating the deceased Nand Lal. Accused Subhawati had also picked the brick from the spot. The statement under Section 161 Cr.PC of PW-10 dated 30.10.2007 has also stated that accused No.3 Subhawati had picked brick from the spot itself. PW-1 also in his statement under Section 161 Cr.PC dated 30.10.2007 has stated that accused No.1 and 2 had picked the iron rod/ Saria from the spot.
SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 63 of 71Accused Subhawati had also picked the brick from the spot. Hence it has come on record thar the articles of offence were picked from the spot itself by the accused persons and that they had not come prepared to commit the attack the deceased Nand Lal with the said Saria/ iron rod and the brick. Hence the offence was not pre-mediated. Initially verbal dual had started between them before beginning of fight which shows that the meeting had escalated to fight with iron rod and Saria from verbal dual. Therefore it was spontaneous. The quarrel had started suddenly. However grave and sudden provocation is not proved on record and by preponderance of probability the attack on the deceased Nand Lal was caused in a heat of passion. Three injuries were recorded on the deceased Nand Lal. The said 3 injuries were allegedly given by four accused all of whom were armed. Accused Lorik Yadav who is since PO in the matter had wooden Danda in his hand. In deposition of PW-16 it has not been proved that the injuries were suffered by brick or that which of the injury was caused by brick. However it is proved that head injury was caused by blunt force impact and it can also be caused by brick. Therefore the alleged 3 injuries could be caused at the most by 3 accused on the head.
66. There is lack of cogent evidence of eye witness that accused shared a common intention to commit a murder. However when the accused No.1 and 2 were hitting with iron rod/ iron pipe and accused No.2 was hitting with a brick on the head shows that accused No.1 and 3 had the knowledge that the use of such article of offence on the head of the deceased which is likely to cause death. The nature of injuries suffered by the deceased could be caused from any of the weapon used SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 64 of 71 by the accused No.1, 2 and 3. Three serious injuries were caused on the head of the deceased Nand Lal. The deceased Nand Lal was not reported to be suffering from any disease. Immediate medical help had reached to him. There was a fracture of frontal bone seen and extra vasations of blood was seen underneath the scalp. Hence the injury was such that it was in the nature of grievous injury. The PW-16 has opined that the head injury caused by blunt force impact was the direct cause of the death of the deceased. Accused person had given mutliple blows on the head alone and therefore they have both intention to kill the deceased and also has knowledge that by such blow the deceased may get killed. All the injuries were on the head. Since the fight had started without premeditation then the accused has knowledge that by such infliction of injuries death is likely to ensue. The injury was given with such a force that a fracture had resulted on the scalp. The above act of all the accused No.1 and 3 who are accused No.1 Fulena Yadav and accused No.3 Subhawati lead to the inference of their guilty knowledge though initially they may not have intended to commit murder of deceased Nand Lal and therefore the above offence is covered under Section 304 (Part-II) of IPC, 1860. All the accused were jointly available at the spot and they had conducted jointly for the injuries caused on the deceased for which they are held liable jointly and co-extensive under Section 34 IPC. The relevant para of citation titled N. Ramkumar vs The State Rep. By Inspector of Police on 6 September, 2023 in Criminal Appeal No.2006 of 2023 is reproduced hereasunder:
Hon'ble Supreme Court of India in case titled N. Ramkumar vs The State Rep. By Inspector of Police on 6 September, 2023 in Criminal Appeal No.2006 of 2023 SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 65 of 71
15. In the case of Basdev Vs. State of Pepsu AIR 1956 SC 488 at page 490 the following observations have been made:
"Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion."
16. It requires to be borne in mind that the test suggested in the aforesaid decision and the fact that the legislature has used two different terminologies, 'intent' and 'knowledge' and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be unsafe to treat 'intent' and 'knowledge' in equal terms. They are not different things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 IPC. It is in this background that the expression used in Indian Penal Code namely "intention" and "knowledge" has to be seen as there being a thin line of distinction between these two expressions. The act to constitute murder, if in given facts and circumstances, would disclose that the ingredients of Section 300 are not satisfied and such act is one of extreme recklessness, it would not attract the said Section. In order to bring a case within Part 3 of Section 300 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted. This Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy vs State of Andhra Pradesh, AIR 2006 SC 3010 has observed:
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation.SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 66 of 71
In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.
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19. This Court in a recent judgement in the case of Anbazhagan vs. The State represented by the Inspector of Police in Criminal Appeal No.2043 of 2023 disposed of on 20.07.2023 has defined the context of the true test to be adopted to find out the intention or knowledge of the accused in doing the act as under:
"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 67 of 71 intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate: 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously.
Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section
304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 68 of 71 cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases :
(i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section,
(ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC,
(iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 69 of 71 particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
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67. In view of the finding above the accused No.1 Fulena Yadav and accused No.3 Subhawati are convicted hereunder under Section 304 (Part-II) read with Section 34 IPC for having committed culpable homicide not amounting to murder on the deceased Nand Lal.
68. In view of above discussion, it is held that prosecution has SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 70 of 71 successfully proved the charge levelled against accused person. Hence accused no. 1 Fulena Yadav and accused no. 3 Subhawati are held guilty and convicted under Section 304 (Part-II) read with Section 34 IPC.
Put up for arguments on the point of sentence on 06.10.2025.
Digitally signed by Announced in the open Court JOGINDER JOGINDER on 19.09.2025. PRAKASH PRAKASH NAHAR Date: 2025.09.19 NAHAR 16:04:31 +0530 (JOGINDER PRAKASH NAHAR) ADDITIONAL SESSIONS JUDGE (FTC-01) CENTRAL/TIS HAZARI COUR DELHI SC No. 27174/2016 FIR No. 295/2007 State Vs. Fulena & Ors. Page 71 of 71