Delhi District Court
State vs Rakesh Etc on 2 March, 2012
Sessions Case No. 254/1/10
FIR No. 50/09
State Vs Rakesh etc
Police Station Nihal Vihar
Decision convicted u/s 304 Part II, 323
read with 34 IPC.
02.03.2012
Pre: Ld. APP for the state.
Ld. counsel Sh. Amardeep Singh for accused persons.
Vide separate order placed along side in the file, convict persons
namely 1.Rakesh, 2.Harish Chand @ Pilli and 3.Sunil @ Sonu are
sentenced to undergo 5 years R.I. and fine 3000/ each in default six
months further R.I. for the offence u/s 304 Part II/ 34 IPC ; and again
convict persons are sentenced to undergo 6 months R.I. for the offence u/s
323 / 34 IPC. Benefit of section 428 Cr. PC be given to the accused
persons. Both the sentences shall run concurrently. Fine paid. Copy of
this order and judgment be given to the convict at free of cost forthwith.
Orders accordingly.
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
State Vs
FIR no.
1 /
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 254/1/10
FIR No. 50/09
State Vs Rakesh etc
Police Station Nihal Vihar
Decision convicted u/s 304 Part II, 323
read with 34 IPC.
ORDER ON THE POINT OF SENTENCE
02.03.2012
Pre: Ld. APP for the state.
Ld. counsel Sh. Amardeep Singh for accused persons.
ld. APP submits that offence of such types are increasing day by
day. He again argues and submits that accused persons have been
convicted for the offence punishable u/s 304 II / 34 and 323/ 34 IPC. Ld.
APP submits that ffence u/s 304 Part II is punishable upto 10 years. On
these grounds ld. APP submits that convict persons do not deserve for any
leniency.
Contrary to it, ld. Counsel for convict Rakesh submits that convict
has been blessed with a baby girl only on 27.02.2012 and his wife Boby
Rawat requires emergent and urgent needs for care. ld. counsel again
submits that he is only bread earner in his family. His father is living in the
State Vs
FIR no.
2 /
village and accused Rakesh is living on rental accommodation. Ld. counsel
again submits that accused / convict Rakesh has remained in judicial
custody for about 4 ½ months. Ld. counsel again submits that accused is
aged about 26 years old. Ld. counsel again submits that no previous
criminal antecedents have borne on record in respect of convict Rakesh..
He is very poor person. He is doing private job. If he is sentenced harsh
punishment it will ruin his future. On these grounds ld. counsel prays for
taking leniency at the time of awarding the sentence.
Ld. Counsel further submits accused persons namely Harish
Chand and Sunil are very poor persons. They are quite young aged 24
and 26 years respectively. ld. counsel again submits that father of both
these accused persons are serving as personnel with Security Force,
Ministry of Home Affairs. They are very poor persons. They are doing
private jobs. Ld. counsel again submits that both these accused persons
have also remained in jail for about 4 ½ months and if they are sent to jail
their future will be ruined. Ld. counsel again submits that no previous
criminal antecedents have borne on record in respect of convict persons.
On these grounds ld. counsel for convict prays for release of convict
persons on probation of good conduct taking lenient view at the time of
awarding the sentence.
State Vs
FIR no.
3 /
I have heard the submissions of ld. counsel for the convict and ld.
APP as well. Keeping in view of the facts and circumstances of the case I
am of the view that ends of justice will be met if convict persons namely
1.Rakesh, 2.Harish Chand @ Pilli and 3.Sunil @ Sonu are sentenced to
undergo 5 years R.I. and fine 3000/ each in default six months further R.I.
each for the offence u/s 304 Part II/ 34 IPC and further ends of justice will
be met if convict persons are sentenced to undergo 6 months R.I. for the
offence u/s 323 / 34 IPC. Benefit of section 428 Cr. PC be given to the
accused persons. Both the sentences shall run concurrently. Fine paid.
Accordingly, convict persons namely 1.Rakesh, 2.Harish
Chand @ Pilli and 3.Sunil @ Sonu are sentenced to
undergo 5 years R.I. and fine 3000/ each in default six
months further R.I. for the offence u/s 304 Part II/ 34 IPC ;
and
Again convict persons are sentenced to undergo 6 months
R.I. for the offence u/s 323 / 34 IPC.
Benefit of section 428 Cr. PC be given to the accused
persons.
Both the sentences shall run concurrently. Fine paid.
Copy of this order and judgment be given to the convict at
free of cost forthwith. Orders accordingly.
ANNOUNCED IN THE OPEN COURT
ON THIS 02.03.2012
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
State Vs
FIR no.
4 /
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 254/1/10
Assigned to Sessions. 10/07/09
Arguments heard on 07/02/12
Date of order. 27.02.2012
FIR No. 50/09
State Vs 1. Rakesh s/o Chandan Singh, R/o
C94, Gali no.4, Harphool Vihar,
Phase III, Delhi.
2. Harish Chand @ Pilli, s/o
Madhvanand, R/o H. No.4, Gali
no.2, Harphool Vihar, PhaseIII,
Delhi.
3. Sunil @ Sonu s/o
Madhavanand, R/o H.No. 41,
Gali no.2, Harphool Vihar,
Phase III, Delhi.
4. Manoj (Proclaimed Offender)
Police Station Nihal Vihar
Under Section 304 Part I /325/323/34 IPC
Decision convicted u/s 304 Part II, 323 read
with 34 IPC.
JUDGEMENT
1. Briefly facts of the case are that on 11.03.2009 (Holi Festival Day) at about 02:00 PM in a plot situated in between Gali No.6 and 7, Harphool Vihar, PhaseIII, Delhi, within area of PS Nihal Vihar, Delhi, accused State Vs FIR no.
5 / persons along with coaccused Manoj (Since PO) in furtherance of their common intentions committed culpable homicide not amounting to murder by causing the death of Sonu, aged about 18 years, S/o Sh. Vidya Sagar Sharma (with an intention of causing death or with the intention of causing such bodily injury as is likely to cause death). Further, accused persons along with Manoj (since PO), in furtherance of their common intention had voluntarily caused grievous hurt to Smt. Patashi Devi, aged about 45 years, W/o Shri Birbal Singh and they had also voluntarily caused simple injuries to Pappu and Upender aged about 20 & 21 years old respectively.
2. In this regard a DD no.17A was recorded at police station. On receiving DD 17 A vide Ex.PW12/C, PW15 SI Kuldeep along with HC Randhir Singh went at RML Hospital. He did not find any complainant at the hospital and he also did not receive any MLC from the hospital. Thereafter, he contacted the complainant Shri Pappu Sharma on his mobile. The mobile number was given to him by the duty officer and Pappu Sharma stated that they had brought the dead body of Sonu State Vs FIR no.
6 / (brother of Pappu Sharma) at their residence.
3. He also enquired from the hospital and came to know that MLC of Sonu was not prepared and it was told that he was fallen from the stairs. Thereafter, IO directed Pappu Sharma not to take the dead body anywhere from his residence. Thereafter, he along with HC Randhir went at the residence of Pappu Sharma situated in Nangli Vihar, where Pappu met him. IO enquired from him and recorded his statement vide Ex PW 5/A. Three injured persons namely Patashi Devi, Upender Kumar and complainant Pappu Sharma met at the residence. Thereafter, IO along with HC Randhir, all the above named three injured went to Sanjay Gandhi Hospital along with dead body. IO got the dead body preserved at the mortuary. All the three injured persons were got medically examined.
4. Thereafter, IO along with Mithlesh, an eye witness went at the place of occurrence i.e a vacant plot in between street no. 6 and 7 of Harphool Vihar and inspected the site. He did not find any danda or any blood stain at the spot. Thereafter, IO came back to the hospital, got the State Vs FIR no.
7 / postmortem conducted and after the postmortem the dead body was given to the relatives of the deceased. Before this, IO telephoned the duty officer and asked him to send two constables. Thereafter, Const. Rakesh and Const. Sandeep reached at the hospital. IO recorded the identification statement and prepared the inquest request vide Ex.PW15/A and Ex PW15/B. IO met doctor at the hospital who gave visra box duly sealed, one sealed parcel containing cloth of the deceased, the other parcel and the sample seal which he took into possession through seizure memo vide Ex PW 6/A. IO also collected the Postmortem report. Thereafter, IO along with his staff reached at Haphool Vihar, Nangli Vihar and prepared site plan at the instance of Mithlesh vide Ex PW 15/C.
5. IO searched for the accused persons who were named in the statement of complainant. One secret informer met and informed that he had seen accused Rakesh, Sunil and Harish going towards Baprolla village. Thereafter, IO along with his staff and Mithlesh went at Baprolla bus stand and at the pointing out of Mithlesh overpowered three persons, State Vs FIR no.
8 / who were present at the Baprolla bus stand and on interrogation there names were revealed as Rakesh, Harish and Sunil. Accused persons were arrested vide arrest memo and personal search memo of all the three accused persons Ex PW4/A, 4/B, 4/C, 4/E, 4/D and 4/F respectively. IO interrogated accused persons namely Harish, Rakesh and Sunil and recorded their disclosure statements vide Ex PW 4/J, 4/H and 4/G. Thereafter, all the three accused persons were taken to Sanjay Gandhi Hospital where they were got medically examined. Thereafter, the three accused persons put behind the lockup. IO deposited the case property in the malkhana. In the present case fourth accused namely Manoj could not be arrested. Proceedings under section 82/83 Cr.P.C were got conducted and he was declared as P.O.
6. After completion of the investigation which was conducted by the police officials the challan was filed to the court of ld. MM concerned and the same was committed to the court of Sessions which was received on 10.07.2009. Consequent upon committal of the case to the Court of State Vs FIR no.
9 / Sessions a charge against accused persons was directed to be framed for the offences punishable under section 304 Part I, 325, 323/ 34 IPC vide court order dated 04.09.2009. Accused persons did not plead guilty and claimed trial.
7. To prove and substantiate its case the prosecution has examined witnesses namely PW1 Dr. Utpal Kumar Roy - is the witness to the fact that injured / deceased was firstly brought to him having head injury and he advised to take the injured to Govt. hospital; PW2 Ms. A. Laxmi, Record clerk - Dr. RML Hospital. She identified the signature of Dr. H Rehman on the death Form of deceased and got exhibited the same as Ex.PW2/A; PW3 HC Ashwini Kumar - is a formal witness being MHCM; PW4 Ct. Rakesh - is the witness to the effect of arrest of accused persons on 12.03.2009, PW5 Pappu Sharma - brother of deceased Sonu material witness - eye witness, PW6 HC Randhir - he accompanied the IO, PW7 Dr. Binay Kumar - Casualty Medical Officer, PW8 Mithlesh - another eye witness to the incident, PW9 Patasi Devi - eye witness as well as injured but she is a hostile witness, PW10 Dr. State Vs FIR no.
10 / Kundan Kumar - Casualty Medical Officer, Sanjay Gandhi Hospital, PW11 Uptender Singh - eye witness and material witness, PW12 HC Narender Kumar - duty officer, PW13 Ct. Sandeep - he accompanied the IO, PW14 Dr. Manoj Dhingra, Incharge Mortuary, PW15 SI Kuldeep Singh and PW16 Shashi Bala , Sr. Scientific Officer (Biology) FSL Rohini, Delhi.
8. PW1 Dr. Utpal Kumar Roy came to the witness box and deposed that it was the Holi Festival of 2009. He was present at his residencecum clinic. Two persons came there along with one injured person namely Sonu. Injured was having injuries on his head. They disclosed that Sonu received injuries by falling from stairs. This witness advised them to take him to Govt. Hosital. This witness has been crossexamined by defence counsel. In the crossexamination it has come on record that he cannot identify the persons who had come to his clinic since, faces of all the persons had Holi color. Patient was conscious when he was brought to his clinic. This witness further deposed that on inquiry from Sonu, Sonu told that he had sustained head injuries due to falling from State Vs FIR no.
11 / stairs.
9. PW2 Ms. A. Laxmi, record clerk, Dr. RML Hospital, Delhi came to the witness box with summoned record. She got exhibited the death form, which was filled by Dr. H. Rehman on 11.03.2009 at about 11.30 p.m. as Ex.PW2/A. This witness has been crossexamined. In the cross examination she deposed that 'cause of death is fall from height as per record.'
10.PW3 HC Ashwini Kumar is the formal witness being MHCM in the concerned police station on 12.03.2009. This witness came to the witness box and got exhibited the relevant entries with regard to the depositing of case property in the Malkhana. He got exhibited the same as Ex.PW3/A to PW3/E. This witness has not been crossexamined.
11.PW4 Ct. Rakesh in his testimony has deposed that on 12.03.2009, he was posted as Constable in police station Nihal Vihar. On receiving DD no. 47 B he along with Ct. Sandeep reached Gandhi Memorial Hospital, Mangolpuri where SI Kuldeep Singh met them. Thereafter, all of three State Vs FIR no.
12 / came to the spot and in the way Mithlesh met them, who disclosed that culprits names are Sunil and Harish who belongs to Uttranchal and they are trying to flee away to Uttranchal along with Rakesh. This witness further deposed that complainant Mithles also told them that he has seen all the three Sunil, Harish and Rakesh near Dhruv Public School, Baparaula. Thereafter, they along with Mithlesh proceeded towards Baparola and reached at Bus Stand of Village Baparola where at the instance of Mithles they apprehended accused persons Sunil, Harish and Rakesh who were standing at the bus stand. Accused persons were arrested. This witness got exhibited the arrest memo of accused Sunil as Ex.PW4/A; arrest memo of accused Rakesh as Ex.PW4/B; and arrest memo of accused Harish as Ex.PW4/C and their respective personal search memos as Ex.PW4/D, PW4/E and Ex.PW4/F. This witness has also got exhibited their disclosure statements vide Ex.PW4/G, PW4/H and Ex.PW4/J. This witness has been crossexamined at length by defence counsel. In the crossexamination it has come on record that no public person or relative of accused were present at the bus stand village Baparola. He denied the suggestion that accused persons were State Vs FIR no.
13 / picked up from their residence and arrested.
12.PW5 Pappu Sharma is the most material witness in this case. In his statement he deposed that on 11.03.2009 he was present at his house. He testified that his younger brother Sonu aged about 18 years, was th student of 9 standard. He further deposed that he, his brother and Upender were standing in the Gali and talking to each other. At about 11.30 a.m. or 12 noon, one boy aged about 7 years came to them and told them that a fight was going on between Mithlesh, brother of Upender, Rakesh, Pilli and Sonu. They are living 3 to 4 gali away from them. Then, Upender had called his mother and told her that a quarrel is going on with Mithlesh. Thereafter, he along with Upender, his younger brother Sonu Sharma and Upender's mother Smt. Patashi Devi went in the gali at Harphool Vihar. He saw that Sonu was holding a pipe in his hand, Rakesh and Pilli were having dandas. They were fighting among themselves, they intervene the matter. On seeing them, they started beating them. Then they started running to save themselves. On seeing them running, they left their dandas and started pelting bricks on State Vs FIR no.
14 / them. One brick hit Sonu on his head. He also received hit from the brick thrown on his head. Patashi Devi got hit on her hand by a rod, which was in the hands of Sonu. Upender also received injuries. No other person received injuries. His brother Sonu Sharma fell down at the spot. They took Sonu Sharma to a Bengali doctor at Arjun Park. His brother was bleeding from his mouth and he told them to take the injured to the government hospital. At about 1.30 or 3 p.m. they took Sonu to the hospital. He was not admitted in the DDU Hospital and then they took him to RML hospital. This witness further deposed that doctors were not admitting the patient Sonu, so they had to tell a lie that Sonu had fallen from stairs. Thereafter, he was admitted in the RML hospital and treatment was given. At about 11.30 p.m., Sonu was declared dead by the doctor. In the meantime, their neighbours also reached in the hospital. Thereafter, he informed the PCR and then police made inquiries from him on telephone and asked various questions. Thereafter, he took his brother back to the house. Police came at their residence. Police recorded his statement vide Ex.PW5/A. This witness correctly identified the accused persons. He has also identified the State Vs FIR no.
15 / clothes of deceased as Ex.PA collectively. This witness has been crossexamined at length. I have perused the same. In the cross examination it has come on record that this witness has made some improvements such as that he had stated to police that himself, his brother and Upender were standing in the Gali and talking to each other, confronted with statement Ex. PW5/A, where it is not so recorded. He had stated to police that at about 11.30am or 12 noon one boy aged about 7 years came to them and told them that a fight was going on between Mithlesh, brother of Upender, Rakesh, Pilli and Sonu, confronted with statement Ex. PW5/A, where it is not so recorded. He had also stated to the police that on seeing them, they started beating them, confronted with statement Ex. PW5/A, where it is not so recorded. He had also stated to police then they started running to save ourselves, confronted with statement Ex. PW5/A, where it is not so recorded.
13.PW6 HC Randhir came to the witness box. He deposed that on 12.03.2009 he was posted in police station Nihal Vihar as Ct. on emergency duty. He testified that on receipt of DD no.17A he along with State Vs FIR no.
16 / SI Kuldeep Singh reached at RML Hospital and on reaching at RML Hospital, it was revealed that body of Sonu was taken by his brother Pappu at his home. Immediately they rushed to the house no. B75, Harphool Vihar, Baparola, which was the house of deceased and of Pappu. His brother Pappu met them there. He gave his statement. Thereafter, Pappu, Upender Singh and Smt. Patashi Devi went to Sanjay Gandhi Memorial Hospital along with dead body. Dead body was got preserved in the mortuary of the hospital and Pappu, Upender and patashi Devi were medically examined in the hospital. Investigating Officer gave rukka to him for registration of the case from hospital. After registration of the case, he came to the hospital and handed over the copy of FIR and rukka to IO. Thereafter, they joined the investigation also. After postmortem, the body was handed over to the relatives. This witness further deposed that they were joined in the investigation. Further, perusal of his testimony reveals that while they were coming to the spot in the way near Baprarola, Mithlesh met them who stated that he has seen all the three Sunil, Harish and Rakesh near Dhruv Public School, Baparaula. Thereafter, they along with Mithlesh proceeded State Vs FIR no.
17 / towards Baparola and reached at Bus Stand of Village Baparola where at the instance of Mithles they apprehended accused persons Sunil, Harish and Rakesh who were standing at the bus stand. Accused persons were arrested. This witness got exhibited the arrest memo of accused Sunil as Ex.PW4/A; arrest memo of accused Rakesh as Ex.PW4/B; and arrest memo of accused Harish as Ex.PW4/C and their respective personal search memos as Ex.PW4/D, PW4/E and Ex.PW4/F. This witness has also got exhibited their disclosure statements vide Ex.PW4/G, PW4/H and Ex.PW4/J. This witness has been crossexamined at length by defence counsel. In the crossexamination some minor type of contradictions have come on record, which are bound to be occurred due to long duration of time and memory of a human being.
14.PW7 Dr. Binay Kumar, Casualty Medical Officer, Sanjay Gandhi Hospital, he came to the witness box and deposed that on 12.03.2009 at around 6.15 p.m. the patients / accused Rakesh, Sunil , Harish were brought to the hospital by Ct. Sandeep Kumar for their medical examination. This witness further deposed that on that day all the State Vs FIR no.
18 / patients were examined by Dr. Noor Ali in his presence and MLCs were also prepared vide Ex.PW7/A, PW7/B and PW7/C bearing his signature at point S.1 on each MLC. This witness further deposed that Dr. Noor Ali has also opined simple injuries on two MLCs vide Ex.PW7/A and PW7/C. He further deposed that as per MLC Ex.PW7/B the injuries are simple in nature. This witness has not been crossexamined.
15.PW8 Mithlesh is the most material witness in this case being victim. He deposed that on the day of Holi in the year 2009, after playing Holi took bath at around 2 p.m. He was going to Nangal Dairy for shopping. In the way Rakesh, Pilli and Sonu met them. They started applying colour on him forcibly. He deposed that he protested it but accused persons were doing it forcibly against his protest and request. Then, they started beating him. Sonu went back and brought dandas, however, the other two were escorting him. Sonu came back with dandas and it was given to other two accused and all of them started beating him with dandas. This witness further deposed that no other except the three accused persons were present when he was being beaten by them. He further State Vs FIR no.
19 / testified that in the meantime, his mother Patashi Devi and brother Upender some how reached there. Neighbour Pappu and his brother Sonu also reached there. They tried to rescue him. This witness further deposed that when they started running away, accused persons pelted stones and bricks on them. His mother Patashi Devi received injuries in the process to rescue them. His brother Upender and neighbour Pappu also received injuries. He further deposed that he does not know whether the other side, accused persons had also received injuries. This witness testified that Sonu received injuries on his head and fell down. He stated that he had signed the documents on asking the police and he does not remember the contents of papers signed by him. During the course of examination in chief he has been crossexamined by ld. APP since this witness was not coming out as per the facts recorded u/s 161 Cr. PC. In the crossexamination he denied that he had stated to the police that Manoj and his associate Rakesh scuffled with him or when Sonu tried to rescue him, Manoj assaulted with brick on the head of Sonu. This witness was confronted with the statement Ex.PW8/A from portion to D to D where it was not so recorded. State Vs FIR no.
20 / This witness has also confronted on some other material facts also. This witness has also been crossexamined by ld. defence counsel. During the course of crossexamination it has come on record that he had made improvements in his testimonies such as that he had stated to the police that he had taken a bath after playing Holi and at about 2 p.m. he was going to Nangal Diary for shopping and in the way Rakesh, Pilli and Sonu met him. He has confronted with statement Ex.PW8/A where it is not so recorded. He stated that he did not receive any external injuries. He has also stated that he had not taken Sonu to the hospital when he received the injuries.
16.PW9 Pathashi Devi, is also an alleged eye witness. She has failed to identify any of the alleged culprits and has also not named any one for having caused alleged injury to her. She has denied to have given any statement to the police. She has been got declared hostile by ld. APP.
17.PW10 Dr. Kundan Kumar from Sanjay Gandhi Memorial Hospital was also examined regarding injuries of Pappu Sharma (PW 5) and Upender State Vs FIR no.
21 / Singh (PW11). He stated that injuries caused to Pappu Sharma and Upender Singh were simple. This witness got exhibited the MLC of injured Pappu as Ex.PW10/A and MLC of Upender Singh as Ex.PW10/B. This witness has been crossexamined by defence counsel. During the course of crossexamination it has come on record that both Pappu and Upender had already got their wounds stitched before they came to Sanjay Gandhi Memorial Hospital. It has also come on record that both the patients Pappu Sharma and Upender Singh did not disclose to them as to from where they received stitches/ medical treatment. He has also stated that he had inquired the cause of injury from both the injured but they did not give any details of alleged history of assault.
18.PW11 Upender Singh another eye witness to the incident. He deposed that he does not remember the date but it was in the month of March 2009 and it was Holi on that day. At around 121.00 Noon he was standing in his street in front of his house. One boy aged about 67 years old came to him and he stated that quarrel is going on with State Vs FIR no.
22 / Mithlesh. At that time Pappu and his brother Sonu were also present with him. His mother was also present in front of house. Thereafter, he along with Pappu, Sonu and mother went at the place of occurrence. He noticed that his brother Mithlesh was being beaten by accused persons namely Pili, Kauva and Rakesh. He identified all the three accused persons. This witness further stated that these accused persons were giving beatings to his brother Mithlesh with a iron pipe and a danda. Accused Rakesh was having danda in his hand and accused Kauva @ Sunil was having iron pipe. Third accused was not having anything in his hand. They tried to intervene and on this all these three accused persons also started beating by dandas and iron pipe. This witness further deposed that accused Kauva @ Sunil gave iron pipe blow on his head and due to that injury he received six stitches in head. He further deposed that his mother also received injuries on her right hand near thumb. Pappu also received injuries on his head. This witness further deposed that when in the process of saving themselves they started running away from there accused persons pelted bricks from behind and due to that brick Sonu received injuries on the back of his head State Vs FIR no.
23 / and after having received injury at the back of his head, Sonu fell down there itself and all these accused persons ran away from there. Thereafter all four injured persons this witness himself, his mother, Pappu and Sonu went to a nearby Bengali doctor who gave stitches on his head and he put bandage on the hand of his mother. Bandages were also put on the portion where Pappu and Sonu received injuries. Mother of Pappu and Sonu had also reached at Bengali doctor"s clinic and thereafter Pappu, Sonu, their mother, his mother went to DDU Hospital for the medical treatment of Sonu as Sonu was vomiting blood continuously and that private doctor instructed them to go to Govt. Hospital. On the next day at about 33.30AM he came to know that Sonu had expired. Police Officials have taken him, his brother Mithlesh and Pappu to Sanjay Gandhi Memorial Hospital. Again he said that Mithlesh reached at the hospital along with his mother later on where they were medically examined. This witness has been crossexamined at length by defence counsel. In his cross examination this witness stated that he did not give any statement to the police. PW11 admitted in his crossexamination that he State Vs FIR no.
24 / had along with his friend Kamal consumed beer on the day of Holi, on 11.3.2009. This witness has not stated as to who caused the only injury on the head of the deceased Sonu due to which he died. This witness specifically stated in his cross examination that, "I had not stated to police that accused persons were giving beatings to my brother Mithlesh with an iron pipe and a danda... I had not stated to police that accused Rakesh was having danda in his hand and accused Kauva was having iron pipe, third accused was not having anything in his hand... I had also not stated to police that accused persons started beating us with danda and iron pipe. I had not stated to police that accused Kauva gave iron pipe blow on my head and due to that injury I received 6 stitches in my head. I had also not stated to police that when in the process of saving ourselves when we started running away from there, accused persons pelted bricks from behind and due to that brick Sonu received injury at the back of his head Sonu fell down...". Thus, this witness is also confronted with the very genesis of as to how the deceased sustained the alleged injury leading to his death, he clearly stated that he did not make any such like statement to the police. This witness stated in his crossexamination that he had along with his friend Kamal consumed beer on the day of Holi i.e. on 11.3.2009. State Vs FIR no.
25 /
19.PW12 HC Narender Kumar, came to the witness box and deposed that on 12.3.2009 he was posted at PS Nihal Vihar as Duty Officer, at about 9.20 a.m. He recorded FIR No. 50/2009 on the basis of Tehrir sent by SI Kuldeep, brought by Ct. Randhir Singh. He brought original FIR register containing the said FIR vide carbon copy of the same Ex. PW12/A. This witness further deposed that after recording the FIR he gave copy of FIR and original Tehrir after making endorsement on Ex. PW12/B to HC Randhir for giving the same to the IO. This witness further deposed that on 12.3.2009 at about 2.15 a.m. he recorded DD No. 17A. He brought original DD register containing the said entry true copy of the same is Ex.PW12/C. This witness has not been crossexamined.
20.PW13 Ct. Sandeep deposed that on 12.3.2009 he was posted at PS Nihal Vihar. He was directed by Chitha Munshi to go to Sanjay Gandhi Hospital. He along with Ct. Rakesh went there, there they met with SI Kuldeep, who stated the facts of the case. IO got conducted the postmortem in the hospital and thereafter he alongwith IO SI Kuldeep, Ct. Rakesh and one public person namely Mithlesh went to the place of State Vs FIR no.
26 / occurrence and on the day itself when they reached near Dhruv Public school, one person met with the IO and had some conversation with him. Thereafter, they all went towards Village Baprola bus stand. Mithlesh pointed towards three persons who were standing at the bus stand as the accused persons namely Sunil, Harish and Rakesh. They overpowered those three persons and thereafter all the three accused persons were arrested. IO prepared arrest memo and personal search memo vide Ex. PW4/A to C and Ex. PW4/D to F. IO interrogated them and recorded their disclosure statement PW4/J, H, G. Thereafter all the three accused persons were taken to Sanjay Gandhi Hospital for medical examination and thereafter they came back to PS. IO interrogated accused persons and thereafter they put behind the lock up. He identified all the accused persons. This witness has been cross examined at length by defence counsel. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
21.PW14 Dr. Manoj Dhingra, Incharge Mortuary, Sanjay Gandhi Memorial State Vs FIR no.
27 / Hospital, New Delhi came to the witness box and deposed that on 12.03.2009 he had conducted the postmortem on the body of Sonu Son of Vidya Sagar. Body was brought by SI Kuldeep Singh from PS Nihal Vihar with alleged history of assault hit by a brick on 11.03.2009 at about 2:00 pm. At about 5:00 pm his condition deteriorated and was taken to DDU Hospital and then to RML Hospital where the attendant informed the doctor that the patient had a fall from a stair and he expired at 11:30 pm. External Injury:
1. Lecirated wound 2CM X 0.5 Cm X bone deep present over mestoid prominance at right side.
2. Abrasion 3CM X 2CM present on middle third of back of middle shoulder.
Internal Injuries: Head Effusion on right occipito temporal region and right temporal region. Subdural Hemetoma over right fronto praito temporal region with patchy sub arracnoied all over the brain. Opinion: The cause of death is cerebral damage consequent to blunt force impact to the head. All injuries were fresh in nature. He deposed that total number of inquest papers were 12. He sealed viscera and clothes and handed over the same to IO. This witness got exhibited the Postmortem report no. 223/09 dated 12.03.2009 as Ex.PW14/A. This witness has been crossexamined by defence counsel. In the crossexamination it has come on record that injuries on State Vs FIR no.
28 / the head and on the body of deceased likely to be caused while very hard fall on the stairs cannot be ruled out in this case. The death of the deceased is only due to head injury on his head leading to cerebral damage.
23.PW15 SI Kuldeep Singh, is the IO of the case. For the sake of brevity and convenience his testimony is being reproduced verbatim which is as under: "On 12.03.2009, I was posted at P.S Nihal Vihar. On that day, I was on emergency duty. I received copy of DD No. 17A which is already Ex PW 12/C. I along with HC Randhir Singh went at RML Hospital. I did not find any complainant at the hospital and I also did not receive any MLC from the hospital. Thereafter, I contacted the complainant Shri Pappu Sharma on his mobile. The mobile number was given to me by the duty officer and Pappu Sharma stated that they had brought the dead body of Sonu (brother of Pappu Sharma) at their residence. I also enquired from the hospital and I came to know that MLC of Sonu was not prepared and it was told that he was fallen from the stairs. I directed Pappu Sharma not to take the dead body from anywhere from his residence. Thereafter, I along with HC Randhir went at the residence of Pappu Sharma situated in Nangli Vihar, where Pappu met me. I enquired from him and I recorded his statement, which is Ex PW 5/A, bears signatures of Pappu Sharma at point S duly attested by me at point B. I kept the statement with me. Three injured persons namely Patashi Devi, Upender Kumar and complainant Pappu Sharma met me at the residence. Thereafter, I along with HC Randhir, all the above named three injured went to Sanjay Gandhi Hospital and we also taken the dead body along with us. I got the dead body preserved at the mortuary. All the three injured persons were got medically examined. Thereafter, I alongwith Mithlesh, an eye witness went at the place of occurance i.e a vacant plot in State Vs FIR no.
29 / between street no. 6 and 7 of Harphool Vihar. I inspected the site. I did not find any danda or any blood stain at the spot. Thereafter, I came back to the hospital, got the post mortem conducted and after the post mortem the dead body was given to the relatives of the deceased. Before this, I telephone the duty officer and asked him to sent two constables. Const. Rakesh and Const. Sandeep reached at the hospital. I had recorded the identification statement and prepared the inquest request vide Ex PW 15/A and 5/B and Ex PW 15/B which bears my signatures at point B. I met doctor at the hospital who gave visra box duly sealed, one sealed parcel containing cloth of the deceased, the other parcel and the sample seal which I had taken into possession through seizure memo Ex PW 6/A, which bears my signatures at point A. I also collected the PM report. Thereafter, I along with my staff reached at Haphool Vihar, Nangli Vihar. I prepared site plan at the instance of Mithlesh vide Ex PW 15/C, which bears my signatures at point A. I search for the accused persons who were named in the statement of complainant. One secret informer met me and he informed that he had seen accused Rakesh, Sunil and Harish going towards Baprolla village. Thereafter, i along with my staff and Mithlesh went at Baprolla bus stand and at the pointing out of Mithlesh I overpowered three persons, who were present at the Baprolla bus stand and on interrogation there names were revealed as Rakesh, harish and Sunil. I identify all the three accused persons present before the court. I prepared arrest memo and personal search memo of all the three accused persons vide Ex PW 4/A, 4/B, 4/C, 4/E, 4/D and 4/F respectively which bears my signatures at point C. I interrogated accused persons namely harish, Rakesh and Sunil and recorded their disclosure statements vide Ex PW 4/J, 4/H and 4/G which bears my signatures at point C. Thereafter, all the three accused persons were taken to Sanjay Gandhi Hospital where they were got medically examined. Thereafter, the three accused persons put behind the lockup. I deposited the case property in the malkhana. On the next day all the three accused persons were produced before the concerned Court and from there they were sent to J/c. I recorded statement of witnesses and after completion of investigation challan was prepared. I got sent the exhibits to the FSL and later on got the result collected from the FSL. In the present case fourth accused namely Manoj could not arrested. Proceedings under section 82/83 Cr.P.C were got conducted and he was declared as P.O and I filed the supplementary charge sheet of accused Manoj, as P.O. XXXXXX by Shri Amardeep Singh, Adv. for all the accused persons.
State Vs FIR no.
30 / I received information for the first time in this case by DD No. 17A at 02:15 AM on 12.03.2009. I reached RML Hospital at about 03:00/3:15 AM. Thereafter, I went to the residence of Pappu Sharma by about 04:1504:45 AM. There at the residence of Pappu sharma, I met Pappu Sharma, Patashi devi, Upender and Mithlesh. All of them were present at the house of Pappu Sharma and were awake. Many other neighbors of that locality were also present at the house of Pappu Sharma. I firstly made inquires from Pappu Sharma, thereafter Mithlesh and other witnesses of this case. After making inquires from the above said witnesses, I came to know the names of the accused persons involved in this case. The accused present in Court are also resident of Harphool Vihar and are residing at a distance of about one furlong from the house of Pappu Sharma. I had recorded the statement of Pappu Sharma and other witnesses at the residence of Pappu Sharma. All this took about one hour. Again said, I recorded statement of Pappu Sharma only at his residence. After recording of statement, I did not proceed to search or arrest the accused persons. I even did not sent any other police official to search/arrest the accused persons who were stated to be residing at a close distance. Seizure memo Ex.PW6/A is in my handwriting. I also prepared the arrest memo and personal search memo of the accused at the spot Baprola Bus stand without any addition or alteration. I prepared the site plan at about 05:30 PM on 12.03.2009, at the instance of PW Mithlesh, however, I did not take his signatures. As per my investigation, the spot of incident is within gali no.6 and 7 of Harphool Vihar. This is also an unapproved colony. On the morning of 12.03.2009, I recorded the statement of Pappu at his residence at about 06:00 AM. Thereafter, I made inquiries from Patashi Devi, Upender and Mithlesh who were also present there and thereafter, I also recorded all their statements. From my investigation, I also came to know that one person by the name of Manoj S/o Rajender, R/o Harphool Vihar was also involved in this case and his role is of hitting the deceased on his head. I had read over and explained the rukka Ex.PW5/A to Pappu before taking his signatures. I remained at the house of Pappu on 12.03.2009 till about 06:30 AM. Thereafter, I took the dead body, all the witnesses/injured to SGM Hospital. When I reached at the house of Pappu, I noticed that none of the injured/witnesses had received any medical treatment and all of them had opened wounds. Again said, Patashi had already taken self treatment and Pappu had a cloth tied on his head, Mithlesh did not have any injury and Upender also had self treatment. Upender, Pappu and Patashi Devi were taken by me to SGM Hospital and there they received treatment including State Vs FIR no.
31 / stitches on their wounds.
At about 07:30 AM, I took Mithlesh to the spot for inspection and after that I returned back to the hospital. I was aware after recording the statement of witnesses that accused persons are residents of Harphool Vihar, however, I did not proceed to search or arrest the accused persons at that time. I had given instructions to our beat staff namely HC Mukesh and other constables (names I cannot recollect) to search for the accused persons.
On 12.03.2009 at about 03:00 PM, I for the first time, along with Ct. Sandeep, Ct. Rakesh proceeded from the SGM Hospital in search of accused persons. Again said, Mithlesh also accompanied us from the mortuary itself. When we reached near Dhruv Public School, we met one informer who informed us the whereabouts of the three accused persons only.
Rukka Ex.PW5/A is in my handwriting. It is wrong to suggest that I had apprehended the accused on 12.03.2009 morning itself and involved them in a false case in collusion with the witnesses and the complainant in this case. It is wrong to suggest that on the morning of 12.03.2009, many neighbours in Harphool Vihar had also given their version of the incident and I had recorded their statements but I did not placed the same on record as they did not suit the case of the prosecution. I had correctly recorded statements of witnesses Ex.PW8/A, Ex.PW5/A and Ex.PW11/DA. It is wrong to suggest that I have not investigated this case fairly and properly. It is wrong to suggest that I have falsely implicated the accused persons in this case. It is wrong to suggest that the deceased had died due to injuries received from fall on stairs but I have made a false case in collusion with the witnesses of this case." Having perused the testimony of this witness it has come on record that this witness had conducted the investigation of this case carefully. He has recorded the statements of material witnesses and arrested the accused persons. This witness has also got exhibited the inquest request as Ex.PW15/A and PW15/B, site plan as Ex.PW15/C. He has correctly identified the accused persons also. This witness has also State Vs FIR no.
32 / specifically deposed that proceedings u/s 82/83 Cr. PC were got conducted and accused Manoj was got declared P.O. and he had filed the supplementary charge sheet of accused Manoj as PO. This witness was crossexamined. I have also gone through the crossexamination carefully. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
24.PW16 Shashi Bala, Sr. Scientific Officer (Biology), FSL Rohini, Delhi came to the witness box and deposed that on 06.05.2009, two sealed parcels were received at their office and same were assigned to him for examination. He opened both the parcels on which seals were intact and he examined the exhibits therein vide report Ex.PW16/A. He also examined the exhibits serologically, vide report Ex.PW16/B. This witness has not been crossexamined.
25.After recording the statements of prosecution witnesses, statements of accused persons u/s 313 Cr. P. C. were recorded in which they State Vs FIR no.
33 / denied all the allegations and stated that he has been falsely implicated in this case. However, they did not lead any defence evidence despite availing opportunities vide court order dated 01.11.2011, in which they denied to lead any defence evidence.
26.Arguments were heard. Ld. APP argued and submitted that all the material witnesses have categorically identified the accused persons as culprits. Ld. APP also argued and submitted that it has specifically come on record in the testimonies of witnesses that accused persons in furtherance of their common intention caused death of deceased by pelting brick upon his head. Ld. APP argued and submitted that depositions of PW5 Pappu, PW8 Mithlesh and PW11 Upender are sufficient to bring on record that a quarrel took place on the day of Holi festival between accused persons and the victims. In this quarrel deceased Sonu had expired due to the injuries caused by accused persons. Ld. APP again argued and submitted that on 11.03.2009, on the day of Holi at about 02:00 PM, PW8 Mithlesh was going to Nangal Dairy for shopping and on the way, one of the accused persons met him State Vs FIR no.
34 / and started applying colours on him forcibly and when PW8 Mithlesh protested for the same. Accused Sunil @ Sonu went back and brought dandas whereas other escorted Mithlesh and thereafter accused persons started beating him with dandas. PW5 Pappu Sharma along with his brother Sonu and another PW11 Upender Singh were standing in the street and it was informed by one boy that fight was going on between accused persons and Mithlesh. PW11 Upender called his mother, PW9 Patashi Devi and informed her regarding the quarrel. When victims Pappu Sharma, Sonu Sharma, Upender and Patashi Devi started running away to save themselves, accused persons pelted bricks on them and one brick hit Sonu Sharma and Pappu Sharm. Patashi received injuries on her hand by accused Sonu with the help of rod and Upender also received injuries and due to head injuries, deceased Sonu Sharma fell down at the spot and he was taken to a nearby Bengali doctor at Arjun Park. Since blood was oozing out from the mouth of Sonu Sharma, the Bengali doctor directed to take Sonu Sharma to the hospital and therefore he was taken to DDU Hospital and then to RML hospital where he was got admitted and was declared brought dead. State Vs FIR no.
35 / The MLC of Pappu Sharma is Ex.PW10/A which was prepared by PW10 Dr. Kundan Kumar. Ld. APP again argued and submitted that as per deposition of PW14 Dr. Manoj Dhingra, who had conducted postmortem on the dead body of Sonu, opined regarding cause of death as cerebral damage consequent to blunt force impact to the head and all injuries were fresh in nature vide Postmortem report No.223/09 which is Ex.PW14/A. Ld. APP further argued and submitted that so long as the contradictions which have come in the testimonies of witnesses are concerned, these contradictions are minor in nature and these contradictions are not of the nature which may go to the root of this case. Though it is clear on record that a quarrel had taken place between accused persons and victims, in which incident deceased Sonu had expired due to head injuries caused by accused persons by pelting stones/ bricks upon the victims. On these grounds ld. APP submitted that accused persons be convicted.
27.Contrary to it, ld. counsel for the accused persons argued and submitted that all alleged witnesses have not supported the prosecution State Vs FIR no.
36 / case in the material and significant aspects of the case. Their version is totally different with the one recorded by police under 161 Cr. P. C./ Rukka. These witnesses have also been confronted with the material part of the evidence, they are giving different version as to the role of danda and iron pipe. They have even shown the spot of incident to be outside of Harphool Vihar. In the statement of these witnesses to police, all of them have stated that Manoj hit the deceased Sonu on his head with a brick but in court these witnesses have taken a summer Sault to which they have been duly confronted with. None of the alleged eye witnesses have supported the case of the prosecution. Thus these witnesses cannot be relied to bring home any of the charges against the accused persons. Ld. counsel for the accused persons also argued and submitted that PW10 Dr. Kundan Kumar from Sanjay Gandhi Memorial Hospital was also examined regarding injuries of Pappu Sharma (PW5) and Upender Singh (PW11). He stated that injuries caused to Pappu Sharma and Upender Singh were simple. He has further stated that both Pappu and Upender had already got their wounds stitched before they came to Sanjay Gandhi Memorial Hospital. State Vs FIR no.
37 / However, on the contrary the IO (PW 15) states in his cross examination that the injured had open wounds and they got stitches at Sanjay Gandhi Memorial Hospital. This also shows that a totally false and concocted case has been made out by the police in collusions with the witnesses and accused persons have been falsely implicated in this case.
28.Ld. counsel for accused persons again argued and submitted that PW15 Kuldeep Singh, IO of the case has stated that after recording the statement of witnesses at the residence of PW Pappu Sharma on 12.3.3009 at about 44.15 am, that accused persons were involved in this case and are residing about one furlong away in Harphool Vihar itself, however and strangely enough, he did not proceed to search or arrest the accused persons at that time. IO also stated that on 12.3.2009 at about 3.00 pm he for the first time along with Ct. Sandeep and Ct. Rakesh proceeded from the SGM Hospital in search of accused persons and Mithlesh also accompanied them from the mortuary itself whereas PW4 Ct. Rakesh has stated that prior to reaching the spot Mithlesh met them. Ld. counsel for the accused persons also argued and submitted State Vs FIR no.
38 / that it transpires from the record that there are four different versions of arrest of accused. PW4 says no relative was called at the time of arrest of accused and that Mithlesh met him on the way. PW 13 says that relatives were called at the spot where accused persons were arrested. It is pertinent to mention that arrest memos of accused bear signatures of their relatives. And PW5 states that when he reached the police station on 12.3.2009 at about 8 8.30 am, by that time police had brought the accused persons in PS and the relatives of the accused had reached the police station. But PW 8 states that the accused persons were arrested by the police on 11.3.2009. All this shows that police in connivance with the witnesses have concocted a false case against the accused persons.
29.Ld. counsel for accused persons in support of his contentions has relied upon the following citations : a. On the point of delay in recording of FIR and unexplained delay:
In the case of Puran @ Manoj Vs. State of Delhi, reported in 186 (2012) DLT 455 (DB), the division bench of the Delhi High court was pleased to observe that: State Vs FIR no.
39 / "...Admittedly, the stabbing incident took place at about 8:30 AM and, according to the prosecution, the FIR was recorded only at 2:30 PM.
Thus, there was delay of six hours in recording the FIR.... It goes without saying that the FIR in a criminal case, particularly in a heinous crime like murder is a valuable material for the purpose of appreciating the evidence led at the time of trial. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR is not only bereft of the advantage of spontaneity, there is also danger that there may be introduction of a coloured version or on exaggerated story. (Mehraj Singh v. State of U.P., AIR 1999 SC 324)".
b. In the case of Thulia Kali Vs. State of Tamil Nadu, reported in AIR 1973 Supreme Court 501, the Apex court observed that : "...Delay in lodging the first in formation report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.... The said circumstance, in our opinion, would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accusedappellant upon it...."
In the present case, the alleged incident took place on 11.3.2009 at 2.00 pm and the FIR was recorded at 9.20 am on 12.3.2009. There is thus an un explained delay of about 19 hours. No prosecution witness has explained this delay. c. On the point of contradictions:
In the case of Gopal and Another versus Dr. Subhash, State Vs FIR no.
40 / reported in (2004) 13 SCC 174, the Honble Supreme court observed that "18.... In Tahsildar Singh and another vs. State of U.P. (AIR 1959 SC 1012), this Court held that in terms of Section 145 of the Indian Evidence Act attention of witnesses can be drawn to such statements which would amount to contradiction. It was held: "The right of both accused and the prosecution is limited to contradictions." It was, thus, held that omission to make a statement in terms of Section 161 of the Code of Criminal Procedure would not attract the provisions of Section 145 of the Indian Evidence Act. However, by reason of Code of Criminal Procedure explanation has been inserted to Subsection (2) of Section 162 which is in the following terms:
"An omission to state a fact or circumstance in the statement referred to in subsection (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
Ld. counsel for accused persons submitted that from the records, it appears that PW1, PW5 and PW10 did not make any allegation as regard the alleged exhortation on the part of all the accused. It further appears that PW 3 and PW4 and PW8 stated before the police that there had been such exhortations by the respondents herein. Such omission on the part of PW3, PW4 and PW8, in the facts and circumstances of the case, being very material would amount to contradiction. In the present case all the alleged eye witnesses have been contradicted on the significant and material part of the evidence. The said witnesses have State Vs FIR no.
41 / given a totally different version of the alleged incident. They have completely ignored the name and role of accused Manoj (proclaimed offender), who as per the case of the prosecution hit the deceased on his head with a brick.
d. On the point of circumstances of injury sustained by deceased due to fall from stairs, explained by him to pw 1, leading to his death:
The Hon'ble Supreme court in the case of Rattan Singh vs. State, reported in 1997 AIR(SC) 768 = (1997) 4 SCC 161, was pleased to observe that: "12. If the said statement had been made when the deceased was under expectation of death it becomes dying declaration in evidence after her death. Nonetheless, even if she was nowhere near expectation of death, still the statement would become admissible under Section 32(1) of the Evidence Act, though not as dying declaration as such, provided it satisfies one of the two conditions set forth in the sub section. .....
13. Section 32(1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question, but its admissibility depends upon one of the two conditions : Either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death....."
30.ld. counsel for accused persons again argued and submitted that in the present case as per statement of PW1, it is clear that deceased Sonu was conscious, when he came to him and upon being asked Sonu told State Vs FIR no.
42 / him that he had sustained injury on his head due to fall from stairs. Thus, as per section 32 of Evidence Act, statement of Sonu before his death, as to the cause of his death and the circumstances of the transaction which resulted in his death becomes very relevant. Further, even the witness PW2 Ms. A. Laxmi, a record clerk from Dr. RML Hospital, Delhi has produced Death report of Sonu (Ex. PW 2/A) and stated that as per record "Cause of death is fall from height as per the record." Further PW14 Dr. Manoj Dhingra of SGM hospital has also said that injury sustained by deceased Sonu on his head and on his body likely to be caused while very hard fall on the stairs cannot be ruled out in this case. Ld. counsel for accused persons also argued and submitted that the Apex court has time and again held that if two views are equally possible, then the view favouring the accused should be adopted. The story as made out by the prosecution has not been supported by any of the witnesses, as stated above. Even otherwise the accused deserve the benefit of doubt. The accused persons are innocent, have been falsely implicated in this case and pray for their acquittal. State Vs FIR no.
43 /
31.Before reaching at any conclusion let the relevant sections be reproduced: "300 Murder -
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly. If it is done with the intention of causing bodily injury to any persons and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
"Sec. 304 IPC :
Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder, shall be punished [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, if the act by which the death is cause is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
Distinction between part I and II of Section 304 IPC. It has been made clear in 'Bonda Devesu Vs State of A.P. (1996) 7 SCC 115: 1996 SCC (Cri.) 187' that :
State Vs FIR no.
44 / "When it is proved that the accused had the intention to cause such bodily injury as is likely to cause death, the offence committed is punishable under section 304, PartI IPC;
When he had the grave and sudden provocation to cause death of the deceased, the offence committed is punishable under section 304, Part I."
In 'M.T. Nambiar Vs State of Kerala AIR 1997 SC 687 : 1997 SCC (cri) 726: 1997 Cr.LJ' it has been held that :
"Section 304, Part II is attracted when it is proved that even if the accused had no intention to cause such bodily injury as was likely to cause death but had the knowledge that the injury was likely to cause death. When the accused appellant gave one blow with a pair of scissors on the chest of the deceased, the intention to cause death cannot be imputed to him but it would be reasonable to infer that he had knowledge that any injury on the vital part of the body of the deceased would cause death. So he can be convicted under section 304, Part II of IPC.
Again in 'Ramkishan Vs State of Rajasthan (1997) 7 SCC 518 : 1997 SCC (Cri) 1106' "When axe injuries were caused on the body of the deceased then even if the accused persons did not have the intention to cause death, they definitely had the knowledge that such injury was likely to cause death. So they are guilty under section 304, Part II, IPC."
On the point of participation in the Criminal Act in judgment 'Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083 it has been observed that :
(i) To apply section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, section 34 cannot be invoked; State Vs FIR no.
45 / Again it has been observed in judgment 'Ramashish Yadav v. State of Bihar, 1999 (8) SCC 555: 1999(6) JT 560: 1999 (2) JCC (SC) 471' that :
(ii) It requires a prearranged plan and presupposes prior concert therefore there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre arrangement or premeditated concert:
Again it has been observed in judgment 'State of Punjab v. Fauja Singh, (1997) 3 Crimes 170 (P&H)' that :
(iii) If some act is done by the accused person in furtherance of common intention of his coaccused, he is equally liable like his coaccused; .
In judgment 'Jamun v. State of Punjab, AIR 1957 SC 469' again it has been observed that :
(iv) In the instant case, there was a long standing enmity between two rival factions in a village, and proceedings under the Criminal Procedure Code were pending against members of both factions. On the day fixed for a hearing in the Magistrate's Court in a neighbouring town, members of both factions left their village armed with sticks and lathis. While one faction was waiting on the roadside for a bus, the other faction arrived and a fight ensued in which severe injuries were caused on both sides, as a result of which one man died. The members of the opposite faction were charged and convicted under sections 302/34 I.P.C. It was held that the mere presence of a person armed with a deadly weapon at the spot of a crime does not necessarily make him a participator in a joint crime in every case, because for the purpose of section 34 only such presence makes a man a participant in a joint crime as is established to be with the intention of lending weight to the commission of a joint crime;
32.Having gone through the above said judgments and facts of the case I am of the view that it has come on record in the depositions of PW5 State Vs FIR no.
46 / Pappu, PW8 Mithlesh and PW11 Upender that a quarrel had taken place on 11.03.2009 (the day of Holi Festival) with accused persons and when accused persons were running away from the spot they pelted stones / bricks upon victims in furtherance of their common intention as a result of which one brick hit upon the head of deceased Sonu, who ultimately succumbed to death and PW14 Dr. Manoj Dhingra, who had conducted postmortem on the dead body of Sonu, opined that cause of death as cerebral damage consequent to blunt force impact to the head and all injuries were fresh in nature vide Postmortem report No.223/09 which is Ex.PW14/A. The act of the accused persons shows that they had the knowledge that by pelting stones upon victim / deceased Sonu and other injured persons, they would cause the death of Sonu. PW10 Dr. Kundan Kumar has stated that injuries caused to Pappu Sharma and Upender Singh were simple and in this regard he got exhibited the MLC of injured Pappu as Ex.PW10/A and MLC of Upender Singh as Ex.PW10/B. Therefore, in view of the above discussed facts and circumstances of the case it can easily be inferred that accused persons did not have the intention to cause death, but they definitely had the State Vs FIR no.
47 / knowledge that such injury was likely to cause death of deceased Sonu. The judgments as relied upon by the ld. counsel for the accused persons are not applicable in the present case since, facts of this case are entirely different. Besides, arguments of ld. counsel for the accused also does not come to the rescue of accused precisely for the reasons as discussed above and in light of the deposition of PW5, PW8 and PW11. So, in light of the judgments 'Ramkishan Vs State of Rajasthan (1997) 7 SCC 518 : 1997 SCC (Cri) 1106' and 'M.T. Nambiar Vs State of Kerala AIR 1997 SC 687 : 1997 SCC (cri) 726: 1997 Cr.LJ' (supra) I convict accused persons 1.Rakesh, 2.Harish Chand @ Pilli and 3.Sunil @ Sonu for the offences punishable u/s 304 Part II / 34 and 323 read with 34 IPC without commenting on section 304 Part I. Accordingly, accused persons namely 1.Rakesh,
2.Harish Chand @ Pilli and 3.Sunil @ Sonu are convicted for the offences punishable u/s 304 Part II / 34 and 323 read with 34 IPC without commenting on section 304 Part I. ANNOUNCED IN THE OPEN COURT ON THIS 27.02.2012 (RAJ KAPOOR) ASJ2/ West / Tis Hazari Courts, Delhi State Vs FIR no.
48 / State Vs FIR no.
49 /