Delhi District Court
State vs Akash @ Jind on 28 January, 2020
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM: ADDL. SESSIONS JUDGE-03:
EAST DISTRICT: KARKARDOOMA COURTS: DELHI.
Sessions Case No.: 1926/2016
State Versus Akash @ Jind
S/o Sh. Nanu
R/o 5/96, Trilokpuri,
Delhi.
FIR No. : 1183/2015
Under Section : 302 IPC & 25 Arms Act
Police Station : Kalynanpuri
Chargesheet Filed On : 30.03.2016
Chargesheet Allocated On : 22.04.2016
Undersigned presided over this court: 06.11.2017
Judgment Reserved On : 17.01.2020
Judgment Announced On : 28.01.2020
JUDGMENT
1. Necessary facts, succinctly, for disposal of the present case are that on receipt of DD No.7A dated 31.12.2015 regarding stabbing incident, police party reached at the spot i.e. 12 Block, Trilokpuri, Delhi, where they came to know that injured had already been rushed to LBS Hospital. No eye witness was found available at the spot. On it, police SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 party rushed to the LBS Hospital. MLC of the injured namely Sunil Kumar was obtained. From the circumstances, present FIR No. 1183/2015 under Sec. 307 IPC PS Kalyanpuri was registered. Crime Team reached at the spot and photographs of the spot were taken. During the inquiry proceedings, one Arjun met the police party and made statement to the police, inter alia alleging therein that on 31.12.2015 at about 4 a.m. on hearing while he came outside his house, he came to know that on account of an altercation in Jagran, someone had stabbed Sunil @ Sunny, his brother on which he reached LBS Hospital where Sunil @ Sunny blabbed that he has been stabbed by Akash @ Jind. One eye witness namely Sandeep @ Suraj also met the police and made statement to the police alleging therein that on the intervening night of 30/31.12.2015 he was on dance, at that time grappling and hot words have taken place between Sunil @ Sunny and Akash @ Jind and matter was sorted out with intervention of the persons present at that time. At about 3.30 a.m. while he (this witness) along with Sunil @ Sunny was going to their house and reached near garbage house, Akash @ Jind attacked Sunil @ Sunny with knife back to back with intention to kill him. Blood oozing out from the injuries of Sunil and on account of fear he went to his house and later on, on coming to know about arrival of police, he reached at the spot and got SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 prepared the site plan of the place of incident.
2. It is also prosecution case that on the same date at abut 8.40 a.m. injured Sunil @ Sunny succumbed to his injures. Proceedings for the same were conducted and body was sent for post-mortem.
3. Accused Akash @ Jind was arrested from the house of his sister at Dakshinpuri who also got recovered weapon of offence i.e. blood stained knife. Accused also got recovered his blood stained shirt. Same were seized and proceedings for the same were also conducted.
4. Further, case of the prosecution is that earlier wife of the deceased (PW-3 Sarvati) refused to make statement but later on on 20.01.2016 she made statement to the police wherein inter alia she alleged that on 30.12.2015 at about 2 a.m. Suraj and Bunty came to her house, took her husband with them for Jagran. After some time of the same, Suraj and Bunty pelted stone to her house stating that body of her husband is lying near garbage house and on it. She along with her brother- in-law Arjun and mother-in-law went to the garbage house and then they came to know that injured had already been rushed to hospital. When they reached to the hospital, she had seen her husband in the pool of blood and he was blabbing something which could not be heard by her and she was directed to go outside the room where her husband was being treated. SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29
5. It is further case of the prosecution that both Sandeep @ Suraj and Kamal @ Bunty were interrogated but no other involvement was found either of them in the said crime. Polygraphic test was also conducted on them i.e. Sandeep @ Suraj and Kamal @ Bunty. Exhibits were got sent to FSL and report was collected for the same.
6. On conclusion of the investigations, chargesheet was filed against accused namely Akash @ Jind before the court of learned Metropolitan Magistrate to face trial for the offence punishable under Sec. 302 IPC and 25/54/59 Arms Act.
7. After compliance of provisions of Sec. 207 CrPC by the court of ld. MM, case was committed to the Court of Sessions on 06.05.2016 as Section 302 IPC is exclusively triable by it.
8. Vide order dated 28.07.2016 passed by ld. predecessor, charge under Section 302 IPC and 25 Arms Act was framed against the abovenamed accused to which he pleaded not guilty and claimed trial.
9. In order to bring home the guilt against the accused, twenty five witnesses were produced and examined by the prosecution. Out of these examined witnesses namely PW-1 Arjun; PW-3 Sarvati; PW-8 Sunil; PW-9 Om Prakash; PW-15 Sandeep; and PW-16 Kamal @ Bunty SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 are material public witnesses;
PW-2 Dr. Pratiksha and PW-6 Dr. S. Lal are medical expert witnesses while PW-22 Dr. Asha Pahwa; PW-23 Smt. Kavita Goyal and PW-24 Sunita Gupta are FSL expert witnesses;
PW-4 SI (Retd.) Surender Singh; PW-5 Inspt. Mahesh Kumar; PW-10 ASI Gabbar Singh; PW-14 Const. Rajdeep and PW-21 SI (Retd.) Lakhi Singh are police officials who either joined the investigations of this case or conducted investigations of this case and witnesses of he documents prepared during the course of investigations.
PW-7 Deepak; PW-11 Dani Ram; PW-12 HC Satya Narayan; PW-13 Const. Omjeet Yadav; PW-17 Const. Vishnu; PW-18 Const. Anuj Kumar; PW-19 ASI Sushil Kumar and PW-20 SI Phire Ram are formal witnesses who linked the case in order to connect the chain of evidence.
10. All the incriminating evidence which has come on record has been put to him under Section 313 CrPC. Accused denied all the incriminating evidence put to him. He pleaded his false implication further pleading that he has been implicated in this case falsely being scheduled caste and nothing has been recovered either from him or at his instance and same was planted upon him. He further pleaded that he was not SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 arrested as alleged and has been detained in the PS from 4 a.m. onwards of 01.01.2016. His further pleading is that main culprits are Suraj and Bunti, who were set free further pleading that he was not having any grudge either with deceased or family of deceased.
11. Accused opted to lead defence evidence in support of his submissions and produced DW-01 Nanu, his father and DW-02 Smt. Suman, his real sister in support of h is defence.
12. DW-1 Nanu deposed that on 31.12.2015 at about 4.30 a.m. while he was present in his house, 2-4 police officials came to his house and took away accused for some inquiry and detained him. This witness deposed that he was not given satisfactory reply when he went to PS and inquired for the matter. This witness further deposed that he (this witness) informed Suman, his daughter, for the same on which she along with her husband came to his house and facts were told to her further stating that on 31.12.2015 neither he (this witness) nor the accused went to house of Smt. Suman at Dakshinpuri.
13. DW-2 Suman deposed that on 31.12.2015, she received a phone call from her father informing her that Akash has been taken away by police and on it, she came to her parental home and did not find her father and then went to Police Station and found her father in the Police SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 Station. She further deposed that accused did not come to her house on 31.12.2015 and also that accused was never apprehended from her house.
14. Having heard the submissions of Sh. A.K. Mishra, Ld. Addl. PP for the State, Sh. Sanjay Gupta, ld. defence counsel. I have also perused the material available on record with the law on the issues in question.
15. Ld. Addl. P.P. for the State argued that the prosecution has proved its case beyond all reasonable doubt by examining the prosecution witnesses including PW-15 Sandeep who stated that it was accused Akash @ Jind who stabbed the deceased on the date, time and place of incident. The deposition made by the public witnesses, police officials and expert witnesses complete the chain of evidence. Ld. Addl. PP for the State drew the attention of the court towards the fact that neither ill-will, grudge or enmity has either been alleged nor proved against any of the prosecution witness, the contention of ld. defence counsel that accused is falsely involved being a person belongs scheduled caste community, though ld. Defence counsel forgotten that the victim and his family members are also belongs to the socially and economically weaker section of society and living in the same vicinity and all these issues draw the needle of guilt against the accused.
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16. Ld. Addl. PP for the State drew the attention of the court towards post-mortem report wherein it is clearly mentioned that deceased died on account of haemorrhagic shock consequent upon stab injuries to neck and abdomen, all injuries are fresh and ante mortem in nature and injuries no. 1 to 3 are possible to cause by double edged sharp with pointed tip weapon and injury no. 4 is caused by blunt force impact. The injuries no. 1 to 3 are sufficient to cause death in ordinary course of nature individually and collectively both.
17. Ld. Addl. PP, further contended that in view of the material placed on record, prosecution has proved its case against the accused Akash @ Jind beyond all reasonable doubts and therefore, prayed for conviction to the accused, as per the charges framed against him.
18. First and farmost contention of ld. defence counsel is that testimony of the defence witnesses be treated at par as of prosecution witnesses and this proved the falsity of the prosecution case.
19. Apart from that, ld. defence counsel drew the attention of the court towards Ex.PW3/DA wherein finger for the crime was raised towards other persons and there is no whisper about involvement of the present accused and this shows that the investigation of this case was not conducted in a fair manner and accused has been falsely implicated in this SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 case with ulterior motive. Ld. defence counsel further contended that prosecution failed to move any application under Sec. 319 CrPC despite having sufficient material available on record against actual culprits and this all entitled for acquittal of the accused.
20. Ld. defence counsel also raised contentions about non joining of public witnesses; non signing of site plan and not showing of position of witnesses in the site plan stating that all these create doubt on the prosecution story.
21. One of the contentions of the ld. defence counsel is that no person can be arrayed as an accused without tendering pardon and for it, ld. counsel has placed reliance on the case reported as Bharat Gurjar Vs. State of Rajasthan, 2017 (3) RCR (Criminal).
22. Ld. defence counsel further contended that for the sake of arguments, if it is presumed that a quarrel has taken place between the accused and the deceased, it is quite clear that said matter has been sorted out and hence, argued that there was no reason and motive with the accused to commit the crime. Ld. counsel taking shelter of the case reported as Riaz Ali Vs. State (Govt. of NCT) Delhi, 2012 (2) JCC 1092 contended that without motive, there was no reason with the accused to commit the offence in question.
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23. Ld. defence counsel further contended that prosecution case suffers from inherent weaknesses and non joining of independent public witnesses, at any stage, even at the time of the alleged arrest of the accused is also fatal to the prosecution case. He further argued that accused has been falsely implicated in this case and thus prayed for acquittal of accused persons.
24. Having carefully gone through the entire material on record and have considered the rival submissions of the parties in the light of the law laid down on the issue in question after due care.
25. Qua contention of ld. defence counsel about defence witnesses, it is undisputed that the evidence tendered by defence witnesses can not always be termed to be a tainted one and they are entitled to equal treatment and equal respect as that of the prosecution witnesses and for holding this view, court is taking support of State of Haryana Vs. Ram Singh, 2002 (1) JCC 385 (Supreme Court of India). But it is also to be kept in mind that their testimony should inspire confidence.
26. It is revealed from the record that DW-1 Nanu and DW-2 Suman, who are father and sister of the accused respectively have been examined on behalf of the accused. First of all, it to be seen that both SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 these witnesses are interested witnesses being father and sister of the accused and as per the settled proposition of law, their testimonies should be scrutinised meticulously. Their statement are contrary to each other. As per the statement of DW-1 Suman and her husband came to his house and he (DW-1) informed that accused had been taken away by the police. DW-02 Suman stated that she went to PS on being telephoned by her father and her father did not meet her at her parental home. It is very shocking and interesting to note that when this witness replied - as - again said - I do not know whether he (accused) was arrested from my house or not. This reflect the conduct of this witness which shows the reluctant attitude and not confirm about arrest of accused and as such, her testimony is doubtful.
27. Apart from that, it is also other interesting factor that neither any complaint has been lodged nor any report lodged anywhere regarding alleged implication of the accused falsely. It is also to be kept in mind that accused has not taken any plea that he was not present at the spot at the time of the alleged incident.
28. In case reported as Laxman Yadav V. State, 2013 AD (Crl.) DHC 112, Hon'ble High Court well observed as "...false explanation by accused - effect - false SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 explanation by accused to built up defence which is otherwise contrary to established version of prosecution leads to drawing of adverse inference against such accused."
29. Hence, in view of the above, this all shows that witnesses examined on behalf of defence do not inspire any confidence and are not trustworthy and reliable.
30. Now, it has to analysis the prosecution evidence to the effect whether prosecution has able to prove its case for the offence for which accused has been charged with beyond all reasonable doubts.
31. Undisputedly, in the present matter earlier name of the accused Akash was not mentioned as a culprit and two persons were also went through Polygraphy lie detector tests and then were cited as prosecution witnesses. This shows the fair investigations conducted by the Investigating Agency. No reason has either been alleged or proved on record for false implication of the accused. Even during his statement recorded under Sec. 313 CrPC accused took a plea that he was having no enmity with the deceased or his family. PW-3 Smt. Sarvati during her examination-in-chief recorded on 16.11.2016 clearly stated as - I believe that my husband was killed by xxxx accused Akash @ Jind. This witness during her cross-examination conducted on behalf of the accused on SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 01.06.2017 also stated - ".....It is wrong to suggest that I did not ever ask the police officials to take action against accused Akash. It is incorrect to suggest that my subsequent complaints showing involvement of accused Akash were made in consultation with legal minds and afterthought complaints. It is incorrect to suggest that I am deposing falsely with the motive to extort money from parents of accused Akash.....".
32. This all goes against the accused. No reason has come forward for false implication of the accused, particularly when no enmity has either been alleged or proved against any material witness of the prosecution.
33. Qua contention of ld. defence counsel that case is full of inherent weakness, it is well settled proposition of law that lacunae, if any, which do not adversely affect the prosecution, is not entitled for benefit of doubt to the accused, if prosecution case otherwise proves.
34. Ld. defence counsel also contended that Investigating Officer did not conduct the investigations of this case fairly and benefit of the same may be given to the accused, this court is of the view that in a case reported as Ram Bihari Yadav Vs. State of Bihar & Ors. AIR 1998 SC 850 observed as under:
"If primacy is given to a designed or negligent SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 investigation, or to the omissions or lapses created as a result of a faulty investigation, the faith and confidence of the people would be shaken not only in the law enforcing agency, but also in the administration of justice."
35. One of the contentions of the ld. defence counsel is that site plan do not bear the signatures of witnesses and accused being scheduled casts. It seems that these contentions are raised only for the sake of arguments which have no bearing any negative affect on the prosecution case in any manner.
36. Besides the above, contentions of the ld. counsels that investigation is faulty, Hon'ble Apex Court in catina of judgment from time to time that accused persons cannot take the shelter of faulty investigation, if otherwise case of the prosecution is strong. In Dhanaj Singh Vs. State of Punjab, 2004 Crl. LJ 1807 at 1809 (SC) and also Karnel Singh Vs. State of M.P., 1995 (5) SCC 518, Hon'ble Apex Court observed that in case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective.
37. Ld. defence counsel raised contention that if for the sake of SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 arguments, it is taken as gospel truth that earlier a quarrel had taken place between the accused and deceased it has come on record that said matter was sorted out and hence, there was no motive with the accused to commit the offence in the present matter and involved being scheduled caste.
38. For it, the court is of the view that human psychology is such a complex one that what is going on in the mind of other at any point of time cannot be read by others. It is not unnatural that accused might having any grudge for that till the time of commission of offence and took revenge for the same by causing injuries to the deceased. Apart from that in case reported as Vinod Kumar & Anil Kumar Vs. NCT of Delhi, 2018 VII D (Delhi) 1, Hon'ble High Court of Delhi in its para 24 observed that this court would like to highlight the role the circumstance of motive plays in case wholly based on circumstantial evidence. In Arjun Malik Vs. Stae of Bihar, 1994 Suppl (2) SCC 3782 SC laid down the position of law in the following manner:
"xxx mere absence of proof of motive for commission of a crime cannot be ground to presume the innocence of an accused if the involvement of the accused is otherwise established."
39. PW-6 Dr. S. Lal conducted the postmortem on the body of SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 deceased and mentioned four external injuries sustained by the deceased. He further opined as - The cause of death is due to haemorrhagic shock consequent upon stab injuries to neck and abdomen. All the injuries are fresh in duration and antemortem in nature. Injury no. to 3 are possible to cause by double edge sharp with pointed tip weapon and injury no. 4 is caused by blunt force impact. Injuries no. 1 to 3 are sufficient to cause death in ordinary course of nature individually and collectively both.
40. The weapon of offence i.e. knife Ex.PW14/Article1 was got recovered at the instance of the accused. PW-14 Const. Rajdeep and PW- 25 Inspt. Rajiv Vimal in unequivocal terms stated that said knife was got recovered at the instance of the accused. Said knife is double edged weapon.
41. Ex.PW24/A - FSL report is clear to the effect that as per conclusion of the said report as:-
"DNA (STR) analysis performed on exhibit '5' (shirt of accused) and '6' (gauze cloth piece of deceased) is sufficient to conclude that DNA profile generated from the source of exhibit '6' (gauze cloth piece of deceased) is similar with the DNA profile generated from the course of exhibit '5' (shirt of accused)".
42. This also prove and clear picture of scientifically evidence as per the expert opinion.
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43. During the course of arguments, ld. counsel for the accused has pointed out some contradictions and discrepancies in the testimony of prosecution witnesses but said discrepancies are not material and will go to the root of the case which create doubt on the prosecution case as falsify the prosecution story. There may be some discrepancies and contradictions/improvements during the narrations of witnesses when they speak in details which depends upon their wisdom and understanding as well as narration of facts etc. Unless the contradictions are of material dimensions, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reasons therefore should not render the evidence of eye- witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. For holding these views, court is taking shelter of cases reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra (Crl.A. 25-26/2000) and State of Rajasthan Vs. Smt. Kalki, 1981 SCC (2) 752.
44. It is also admitted position of the law that it must be borne in mind that criminal justice system must be alive to the expectation of the people. The principle that no innocent man should be punished is equally SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 applicable that no guilty man should be allowed to go unpunished. Wrong acquittal of the accused will send a wrong signal to the society. Wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity people then would lose confidence in criminal justice system and would tend to settle their score on the street by exercising muscle power and if such situation is allowed to happen, woe would be the Rule of law. For holding this view, I am supported with the case reported as Nallabothu Venkaiah Vs. State of Andhra Pradesh, 2002 VI AD (SC)
521.
45. It is also duty of the court to all the nuggets of truth from the evidence unless here is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not presides to see that no innocent man is unpunished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. (Ref. State of UP V. Anil Singh AIR 1988 SC 1998).
46. Now the court has to analysis the matter whether this case falls under the ambit of Sec. 302 IPC or otherwise.
47. In a case reported as Harbeer Singh V. Sheeshpal AIR 2016 SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 SC 4958, Hon'ble Apex Court held that - It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts.
48. PW-3 Sarvati, during her examination-in-chief recorded on 16.11.2016 in clear and unequivocal terms stated as - "...after sometime xx along with accused Akash present in court (correctly identified by the witness) started pelting stones on our house and started shouting - ja hamne tere pati to maar diya hai, khatte ke pass lash lash padi hai, jaakar utha le....". This all shows that accused committed the offence with intention to commit murder of the deceased and even no remorse after committing the said offence. Post-mortem report Ex.PW6/A opined the cause of death as -
"The cause of death is due to hemorrhagic shock consequent upon stab injuries to neck and abdomen. All the injuries are fresh in duration and antemortem in nature".
49. Thus, the law is well settled that simply because a witness turned hostile during cross-examination, his version given during examination-in-chief cannot be disbelieved. Merely when a witness turned hostile, whole of his evidence is not liable to be thrown away, and such SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 evidence which is found dependable, on a careful scrutiny can be accepted. Reliance can also be placed upon the decision of the Hon'ble Delhi High Court in Deepak v. State, Crl. App. No. 149/2000 decided on 03.12.2013.
50. To further facilitate the matter, court will discuss what is culpable homicide as defined under Sec. 300 IPC. Culpable homicide- whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
51. Section 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
52. Sec. 300 Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death , or Secondly - If it is done with the intention of causing such bodily injury s the offender knows to be likely to cause the death of the pe4rson to whom the harm is caused, or - Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 cause death, or -
Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. When culpable homicide is not murder - Culpable homicide is not murder if the offender, whilst deprived of the power if self-control by grave and sudden provocation or causes the death of the person who gave the provocation, causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos -
First - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly - that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of he powers of such public servant. Thirdly - that the provocation is not given by anything done in the lawful exercise or the right of private defence.
Explanation - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
53. Further Hon'ble Apex Court in Abdul Waheed Khan and Others v. State of AP (2002) 7 SCC 175, whilst appreciating the SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 distinction between Sect. 299 and 300 IPC and in particular clause (3) of 300, thereof reiterated the principle laid down in the celebrated decision in Virsa Singh v. State of Punjab AIR 958 SC 465 as under:
54. "This bring as to the crucial question as to which was the appropriate provision to be applied. In the scheme of IPC culpable homicide is the genus and "murder", its specie. All "murder" is "culpable homicide" sans "special characteristics of murder is culpable homicide amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide, which is defined in Sec. 300 as 'murder'. The second may be termed as 'Culpable homicide of the second degree". This is punishable under the first part of the section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Sec. 304.
55. It is a settled legal position qua discrepancies in the evidence of witnesses that unless the discrepancies are of material dimension, the same should not be used to jettison the evidence of such witnesses in its entirety. In this behalf, reliance is placed on a decision of the Hon'ble SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 Supreme Court of India in State of U.P. v. Naresh reported as MANU/SC/0228/2011 : (2011) 4 SCC 324, which observed as follows:
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." [Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar Singh, MANU/SC/0158/2004 : (2004) 9 SCC 186, p. 192, para 9.] Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide State v. Saravanan [MANU/SC/8113/2008 : (2008) 17 SCC 587: (2010) 4 SCC (Cri.) 580 : AIR 2009 SC 152], Arumugam v. State [MANU/SC/8108/2008 : (2008) 15 SCC 590 : (2009) 3 SCC (Cri.) 1130 : AIR 2009 SC 331], Mahendra Pratap Singh v. State of U.P. [MANU/SC/0279/2009 : (2009) 11 SCC 334: (2009) 3 SCC SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 (Cri.) 1352] and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra [MANU/SC/0947/2010 : (2010) 13 SCC 657: JT (2010) 12 SC 287].]"
56. From the over all facts and circumstances of the case and testimonies of the prosecution witnesses and the judgments of Hon'ble High Court of Delhi and Hon'ble Apex Court, there is no dispute regarding the testimony of the witnesses. They are reliable and trustworthy. The defence witness examined by the accused in order to shake the prosecution story does not hold any water as they are interested and contradict and does not deny the presence of the accused.
57. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. Motive is that which makes a man to do a particular act. There can be no action without a motive which must exist for every voluntarily act.
58. It has been repeatedly held by the various higher Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304 IPC. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 bodily injury, then the same would be a case of Section 304 Part II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court. At this stage, it would be profitable to briefly encapsulate the legal position that emerges from a careful consideration of the above discussion, in light of the facts and circumstances of the present case, as follows:
a) If the subject injury is intended and is not caused by an accident or otherwise is not unintentional and the injury is sufficient in the ordinary course of nature to cause death, then the same would fall under Section 300 clause (3) and be punishable under Section 302 of IPC;
b) If there is intent and knowledge to cause a bodily injury likely to cause death, then the same would be a case of Section 304 Part I of IPC; and
c) If it is only a case of knowledge and not intention to cause a bodily injury likely to cause death, then the same would fall under Section 304 Part II of IPC.
59. The Hon'ble Supreme Court of India in State of Rajasthan v. Dhool Singh reported as MANU/SC/1076/2003 : (2004) 12 SCC 546, whilst promulgating inter alia the nature of injury, part of the body where it is caused and the weapon used in causing such injury to be the indicators of intention to establish an offence under Section 302 of IPC observed as SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 follows:
"13. ... It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case it is true that the respondent had dealt one single blow with a sword which is a sharp-edged weapon measuring about 3 ft. in length on a vital part of the body, namely, the neck. This act of the respondent though solitary in number had severed sternocleidal muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with a sharp edged weapon would cause death. Such an injury in our opinion not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing death of the victim, therefore, is wholly erroneous and cannot be sustained."
60. It must be kept in mind that injured/victim would be most interested to see the actual culprit behind bars. For it reference nay be taken from the case reported as Deepak & Ors. Vs. State, 2015 VII AD (Delhi) 140 wherein Hon'ble Court observed as:
"no ulterior motive assigned to victim for falsely implicating them for serious injuries sustained by him in incident when there was no previous animosity - victim not expected let real offenders go scot free and SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 implicate his friend - accused persons did not deny their presence at spot - inconsistent defence led by appellant, to set up plea of alibi, - FIR lodged without delay least possibility of victim to concoct false story in such short period - appellant did not challenge expert opinion about nature of injuries - no bar to base conviction on sole testimony of injured if it inspires confidence."
61. Hence, in view of over all facts and circumstances, it is proved beyond all reasonable doubts that the prosecution has established its case against accused Akash @ Jind S/o Sh. Nanu for committing murder of Sunil @ Sunny and as such, said accused namely Akash @ Jind is held guilty for the offence punishable under Section 302 IPC and is convicted accordingly.
62. In the present matter, apart from Sec. 302 IPC, accused has also been charged for the offence punishable under Sec. 25 Arms Act.
63. In judgment reported as Govt. of NCT of Delhi Vs Sunil, (2001) 1 SCC 652, it is held that :
"It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police record are untrustworthy. As a preposition of law the presumption should be other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action as 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."
64. Qua arguments raised by ld. counsel for the accused that no public witness was joined at the time of the said recovery, this court is taking shelter of the case reported as Union of India Vs. Victor Nnamdi Okpo, (Crl. Appeal No. 617/2004 decided on 16.09.2010 by DHC) :
"It is a common knowledge that generally public is averse to become a witness in a criminal case because of the attitude of the Courts in summoning the witnesses time and again and sending them back on the ground that either the counsel for the accused was not available or accused was not there. While departmental witnesses get leave from their office and also get necessary support from the offence regarding TA,DA , the public witnesses are treated in a very clumsy manner in the courts and they keep standing from morning till evening and then they are told that defence counsel is not available. That is the reason that public persons are scared to become a witness in SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 criminal case and it is hard to find public witnesses these days. The case of the prosecution cannot be rejected on the ground of non examination of public witness or on account of non-joining of public witness. Neither the prosecution version of incident can be disbelieved only on the ground of non-joining of public witness or non examination of public witness for valid reasons."
65. To prove the said offence, prosecution took help of PW-4 Const. Rajdeep and PW-25 Inspt. Rajiv Vimal. As mentioned above, both these witnesses in unequivocal terms stated that it was accused who got recovered the knife. Mere denial of the said recovery is of no values in the eyes of law. Neither of the defence witnesses denied that accused did not get recovered any knife as alleged by the prosecution.
66. It is well settled principle of law that the police officials are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scrutinise their statements very closely in order to form an opinion whether they are reliable and trustworthy.
67. Therefore, from the above observations and discussion, this court is also of the view that prosecution has fully established its case against the accused for the offence punishable under Sec. 25 Arms Act.
68. Sum up of the above is that accused Akash @ Jind S/o Sh. SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29 Nanu is held guilty for the offence punishable under Sec. 302 IPC and also under Sec. 25 Arms Act and is convicted accordingly. Announced in the open Court Dated : 28th day of January, 2020 (Dr. Satinder Kumar Gautam) Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.
SC No.: 1926/2016 State Vs. Akash @ Jind Page No.: 29 of 29