Delhi District Court
Sc No. 58096/16 , Fir No. 96/12 Ps. Vijay ... vs . Rahul @ Kake & Ors Page No. 1 on 31 May, 2017
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No..........................................58096/16
FIR No. 96/12
PS Vijay Vihar
U/s: 302/34 IPC
State
Versus
1) Rahul @ Kake @ Raju S/o Sh. Harbansh Lal
R/o H. No. R1/20, Lal quarter, Vijay Vihar PhII, Delhi
2) Vinod Kumar S/o Sh. Prem Singh
R/o H. No. 19/37, West Moti Bagh Sarai Rohilla, Delhi
Date of institution: 27.09.2012
Judgment reserved on: 29.05.2017
Judgment delivered on: 31.05.2017
ORDER/JUDGMENT:
1) Rahul @ Kake @ Raju S/o Sh. Harbansh Lal Convicted U/s 304 Part I IPC
2) Vinod Kumar S/o Sh. Prem Singh Convicted U/s 304 Part I IPC
J U D G M E N T
1.In brief, the prosecution case as brought on record is that on the intervening night of 22/23032012 at about 1.15AM (night), the accused persons had beaten one person namely Rajesh with bricks on the pretext that he had struck their car make Innova No. DL4CAE3404 by his three wheeler scooter No. DL1RG6588 and they, in order to teach him a lesson, had beaten him with bricks and thrown him in the drain (nali), thereby causing his death by inflicting brick injuries. Therefore, it was alleged that they have committed an offence punishable u/s 302 IPC.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 12. As per the prosecution story, on receiving information vide DD No. 3A about a quarrel, on the intervening night of 22nd & 23rd of March, 2012 at 1:30AM, SI G.R. Tanwar along with Ct. Brijesh and Ct. Suresh proceeded to the spot at Vijay Vihar PhaseI, near Thakur properties, A Block, Vijay Vihar, Delhi, where they found a person (the deceased) in an injured condition bleeding from his head in south directions of the street (gali) near drain ( nali) and two vehicles, one three wheeler scooter No. DL1RG6588 in damaged condition from front left side and a car make Innova No. DL4CAE3404 at a distance of 30 meters from the spot having dent marks on the rare side bumper and towards the right side. They met with Ct. Naveen and Ct. Vikas, who were on petrolling duty in that area and by that time SHO Inspector Sunil along with staff also reached there. Further that eye witness Mohd. Saleem was found on the spot, whose statement was recorded and on preparing rukka on that statement, got registered the FIR No. 96/2012 registered with PS Vijay Vihar u/s 302/34 IPC and further investigation was entrusted to Inspector Sunil Kumar, who proceeded with the investigation further. On completion of investigation, final report/charge sheet under section 173 Criminal Procedure Code ( hereinafter referred as Code) was submitted against accused Rahul @ Kake & Vinod Kumar, in the court for trial for the offences u/s 302/34 IPC.
After compliance of the provisions of section 207 of the Code, the case was committed to the court of Sessions against the accused persons namely Rahul @ Kake & Vinod Kumar for the offences punishable under section u/s 302/34 IPC and accused persons were sent for trial.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 23. Vide order dated 03122012, the Predecessor Court of Sh. Rajnish Bhatnagar framed charges against both the accused persons for the offences punishable under section 302/34 IPC, to which both of them have pleaded not guilty and claimed trial for all the offences charged against them. Hence the trial had commenced.
4. To substantiate its case for the offences alleged, the prosecution has examined a total number of 20 prosecution witnesses viz.,
a) Complainant/Public witnesses Mohd. Saleem, PW1, the complaint, Ms. Sanggeta, PW2, Sh. Chand Babu, PW3, Mohd. Babu, PW4, were the material key witnesses of the prosecution to prove the allegations levied against the accused persons.
They have exhibited the complaint Ex. PW1/A, Site plan Ex. PW1/B, photographs of the deceased, TSR and Innova Car Ex. PW1/A1 to PW1/A16, clothes of accused Rahul @ Kake and Vinod Ex. P1 & P2, statement of identification of dead body of deceased Ex. PW2/A.
b) Witnesses of Investigation HC Hukmender, PW9 ( to prove the register entry Ex. PW9/A, PW9/B, RC Ex. PW9/C & PW9/D & Ct. Rakesh Kumar, PW13 ( who deposited the exhibits to FSL Rohini), were the formal witnesses. who came to prove the documents on record.
Whereas HC Shiv Om, PW5, Inspector Mahohar Lal, PW6, Ct. Prithvi Singh, PW7, Ct. Vikash Kumar, PW8, Ct. Suresh Meena, PW11, ASI Pradeep Kumar, PW12, HC Parminder Kumar, PW13, Insp. Ravinder Kumar, PW15, Sh. Rajender Kumar Vajpayee, PW16, SI G.R. Tanwar, SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 3 PW18, HC Sunil Dutt, PW19 & Insp. Sunil Kumar, PW20, were the witnesses of investigation and had come to the witness box to prove their role played by them during the course of investigation and they have exhibited the scaled site plan Ex. PW6/A, arrest memo, personal search memo, disclosure statement & seizure memo of cloth of accused Rahul @ Kake. These documents are Ex. PW8/A, PW8/B , PW8/C & PW8/D. Arrest memo, personal search memo, disclosure statement & pointed out memo of accused Vinod are Ex. PW12/A, PW12/B , PW12/C & PW12/D, seizure memo of brick Ex. PW12/E, seizure memo of cloth of accused Vinod Ex. PW12/F, Photographs of lifting chance print Ex. PW15/A1 to PW15/A3, negative of the same Ex. PW15/A4 colly, specimen finger prints slip of accused Vinod and Rahul Ex. PW15/A5 and Ex. PW15/A6, report of the identical prints Ex. PW15/A7, chance print and finger prints Ex. PW15/A8, Ex. PW15/A98 & Ex. PW15/A10, palm print of accused Vinod Ex. PW15/A11, detailed report Ex. PW15/A12 & forwarded memorandums on the report, PW16/A & PW16/B, Rukka Ex. PW18/A, seizure memo of black colour leather purse, blood stained concrete cement and earth control, TSR No. DL1RG6588, Innova vehicle No. DL4CAE3404 & empty liquor bottle, Ex. PW18/B, Ex. PW18/C, Ex. PW18/D, Ex. PW18/E & Ex. PW18/F, request for postmortum examination Ex. PW18/G, brief facts Ex. PW18/H, identification statement of Aman Kumar, Jai Pal & Sangita Ex. PK, Ex. PJ & Ex. PW2/A, request for preserving the dead body at mortuary , Ex. PW18J, seizure memo of clothes of the deceased Ex. PW18/K, TSR No. DL1RG6588, Innova vehicle No. DL4CAE3404.
Empty liquor bottle, plastic container containing cemented pieces, blood stained cemented pieces, cloths of the deceased, black colour purse containing a passport size coloured photographs and five keys in a dori and one mobile phone make Nokia & one plastic container containing one rubber in black colour & one plastic container containing plastic green paint chips are Ex P3 to P11 respectively. Other documents are seizure memo of plastic dibbis Ex. PW19/A, notice u/s 133 M.V.Act & reply of the same Ex. PW20/A & PW20/B, application for TIP proceeding Ex. PW20/C, report of the mechanical expert in respect of the vehicles Ex. PM & Ex. PN.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 4d) Other Witnesses Sh. Rambir, PW10, the owner of the TSR and has proved the superdari application, superdarinama, and photographs of TSR, Ex PW10/A, PW10/B & PW10/C respectively.
Ms. L. Babyto Devi, Sr. Scientific Officer, FSL Rohini, PW17, who exhibited the detailed report Ex. PW17/A & PW17/B.
e) Admitted documents:
Certificate u/s. 65B Indian Evidence Act, Finger print/chance print report, FSL result dated 24.05.12 in respect of vehicles, FSL report dated 30.05.12, superdarinama of vehicle no. DL 4CA E 3404 (Innova car), crime team report, subsequent opinion regarding weapon of offence, the receipt of dead body of deceased Rajesh Kumar, dead body identification statements from PW Jaipal and Aman Kumar, post mortem report of deceased Rajesh Kumar S/o. Guljari Lal, mechanical inspection reports of Toyata car no. DL 4CA E 3404 and TSR bearing no. DL 1 RG 6588, copy of DD Nos. 3A, 4A and 5A, all dated 23.03.12, copy of FIR, endorsement on the rukka by the duty officer, TIP proceedings of accused Rahul and Manoj Kumar, photographs, exhibited as Ex.PA to Ex.PG, Ex.PJ to Ex.PN (including Ex.PN1 to Ex.PN3), Ex.PO, Ex.PQ, Ex.PR, Ex.PS, Ex.A1 to Ex.A16 (colly.) and Ex.PT (colly.), were admitted on behalf of the accused person vide order dated 16072013 and thus, the witnesses of these documents i.e. Ms. Meenu Kaushik, Ld. M.M., Sh. Parshuram Singh from FSL, Dr. Vijay Dhankar, Dr. J.V. Kiran, Sh. Davender Singh, SI Prem Singh, Ct. Kamal, HC Virender Singh, Aman Kumar, Suman Rani, S.S. Badwal, Ravinder Kumar and Ct.
Pradeep were dropped from the list of witnesses.
5. On the evidence of the prosecution being closed, the statements of the accused persons namely Rahul @ Kake & Vinod Kumar were recorded under SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 5 section 313 of the Code through which they denied all the incriminating/material evidence put to them and they pleaded their innocence and false implications, however, they did not lead defence.
6. During the course of arguments, Ld. Addl. PP for the State has submitted that there exists enough evidence against the accused persons particularly that of the testimony of Mohd. Saleem, the complainant, PW1 & of Sh. Chand Babu, PW3, who have wholly supported the prosecution case and even their testimony remained unimpeached on the test of crossexamination and that the discrepancies in their testimonies to their previous statements given to the police were due to limitations of human memory as the complaint is dated 23032012 whereas they were examined on 16072013 and that the discrepancy on the point of identity in the testimony of PW4 does not affect the facts established through the testimony of PW1 & PW3 on the point of identity of the accused and also an adverse inference can be drawn regarding their identity due to their refusal in participation in Test Identification Parades ( TIPs). Further that the prosecution has successfully proved its case beyond reasonable doubt against both the accused persons as they are very well connected with the crime alleged through the scientific investigation reports of their blood stained clothes and even through their finger prints. Also that the prosecution has not only proved its case through the testimonies of PW1 & PW3 but also through circumstantial evidence brought on record, particularly the vehicles of the accused and of the deceased, both vehicles seized from the spot of the occurrence.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 6Further that the activities of the accused persons on the spot during the occurrence have been proved with their common intentions and motive of committing murder of the deceased for teaching him a lesson for hitting their car & causing damages to their car by the deceased through his three wheeler scooter at the relevant date, time and place and hence, it is prayed that the accused persons may be convicted accordingly.
7. Ms. Usha Rani, an Amicus Curiae, Ld. Counsel for the accused Vinod has submitted that there are material discrepancies, contradictions, improvements and exaggerations in the testimonies alleged eye witnesses PW1, PW3 & PW4, who were the star witnesses of the prosecution and such discrepancies, contradictions, improvements and exaggerations are fatal to the prosecution case particularly on the point of identity of the accused Vinod as the collective reading of the evidence of these witnesses has proved that they had not witnessed the occurrence but have reached on the spot after the occurrence and by that time the assailants have already run away.
Thus, it is submitted on behalf of accused that due to these discrepancies, contradictions, improvements and exaggerations in the testimonies of PW1, PW3 & PW4, the accused is entitled for the benefit of doubts for the alleged charges levied against him.
It is also submitted on behalf of accused Vinod that he has been falsely implicated in the present case.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 78. Ms. Ankur Sharma, Ld. Counsel for the accused Rahul @ Kake has submitted that there are material discrepancies, contradictions, improvements and exaggerations in the testimonies of PW1, PW3 & PW4, who were the star witnesses of the prosecution and such discrepancies, contradictions, improvements and exaggerations are fatal to the prosecution case particularly on the point of identity of both the accused persons including accused Rahul as these witnesses have themselves stated that they could not see the faces of the assailants/accused persons.
9. Also that at the time of arrest or recovery, no public persons were joined and the weapon i.e. the brick recovered could not be connected with the crime as per the FSL report and no blood stained clothes or finger prints of accused Rahul were proved or matched with the deceased Rajesh. Also that the prosecution has not proved the factum of birthday party, which the accused persons have attended on that night and that no CDR from the spot of occurrence has been obtained from the spot. Thus, it is submitted on behalf of accused Rahul that due to these discrepancies, contradictions, improvements and exaggerations in the testimonies of PW1,PW3 & PW4, the accused is entitled for the benefit of doubt for the alleged charges levied against him.
Further it is argued that even if the prosecution story is believed totally then also it could be an allegation for an offence u/s 304 part II and not of 302 IPC as alleged, in view of the law settled in case titled as Rajju Vs. U.P. 1994, Crl. Law Journal 105, as there was no intentions proved as are prescribed for the offence of section 300 IPC.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 810. Before proceeding further, to appreciate the evidence on record, as per the settled legal propositions, the prosecution, in order to establish its case against both the accused persons Rahul @ Kake and Vinod, has to prove the following ingredients:
For offence under section 302 IPC, that
i) the death of a human being;
ii) such death has been caused by, or in consequence of, the act of the accused person;
iii) such act was done with the intention of causing death; or it was done with the intention of causing such bodily injury as
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death; or the accused caused death by doing an act known to him to be so imminently dangerous that it must in all probability cause
(a) death, or
(b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
11. As per the prosecution case, the brief facts of the case, in nutshell, were that accused Vinod was a driver on vehicle make Innova bearing No. DL4CAE3404 and on 22032012 he had gone to attend a birthday party of the son of his Mausi Montu and while returning back he was with one Rahul @ Kake in the vehicle but in the way one TSR bearing No. DL1RG6588 driven by one Rajesh Kumar (the deceased) collided with their car and the accused persons asked the deceased to meet the expenses of damages caused to the car and both the vehicles proceeded further together towards police station to settle but the TSR driver instead of taking the vehicle to police station Vijay Vihar tried to run away and they chased him and he was intercepted near the spot of occurrence and some altercations/quarrel had taken place between the accused persons and the SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 9 deceased and in that scuffle, both the accused Vinod & Rahul inflicted injuries with bricks and on seeing the public approaching them, in order to escape they have thrown the injured/deceased in the nearby drain and ran away from the spot, thereby, in furtherance of their common intentions, they have caused the death of the deceased by inflicting injuries with bricks, which was sufficient to cause his death in ordinary course of nature.
12. On appreciation of evidence, it is observed that the case of the prosecution is basically relying heavily on the testimonies of Sh. Saleem, the complainant, PW1, Sh. Chand Babu, PW3 & Mohd. Babu, PW4, the eye witnesses, both the sons of complainant, PW1, who were the material star witnesses being alleged eye witnesses of the prosecution as it is stated that the alleged incident had taken place in their presence.
13. As per the complaint Ex. PW1/A of Sh. Saleem, the complainant, 'On the intervening night of 22/23032012, when he was sleeping with his children, he heard a noise at about 1:15 AM from the street and when he came out he found two boys beating one man and one of these two boys addressing other Rahul exhorted that the man has struck their vehicle and should be taught a lesson and the other replied calling him by name as Vinod 'to beat him by brick' and then both started beating him through bricks and when he tried to save the man but they continued beating him and he called his two boys Chand Babu and Mohd. Babu and two three public persons also came on the spot but by that time the man was killed as one of the two boys shouted that the man was dead and they should run away and they had run towards red quarters and that they were of the age between 2025 years and were of average body and he could identify them if produced. Also that he checked the man who was thrown in the drain and found that the man was not breathing and that both the boys who have killed that man on leaving their Innova vehicle No. DL4CAE3404 fled away from the spot'.
14. Sh. Saleem, the complainant, was examined as PW1 and the relevant SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 10 extracts of his testimony is extracted below:
'On the intervening night of 22/23.03.2012 I was sleeping at my house. Between 1.00 - 2.00 a.m. I heard a noise and I saw that two boys were given beatings to a person with brick mercilessly.
Both the said boys were also grappling with him. One TSR was parked near the said spot and at some distance one Innova was also parked. The aforesaid two boys were giving beatings to the said boy with the brick and physical beating. I heard a painful crying of the boy who was being beaten and he said "Aha Mei Mar Gya". I called my sons Chand Babu and Mohammad Babu and I rushed towards the spot to save the injured. The accused persons threw the injured in the nala (one or two feet).
When I reached at the spot, accused persons pushed me and as a result I fell on the three wheeler. The accused persons ran towards Lal Quarter.
In the meanwhile my sons also came there and they chased the accused persons but accused person could not be caught. I heard that one of the accused persons was saying that the injured is dead we should run away from there in our Innova. The accused persons had left their Innova at the spot and escaped on foot. Public persons also reached at the spot. Somebody informed the police. .... .... ....
At this stage, the witness pointed out towards both the accused persons (present in the court today) as the same boys namely Rahul and Vinod who were beating Rajesh Kumar since deceased. The witness has identified the photographs of the deceased, TSR and Innova which are collectively Ex. PW1/A1 to A16. ... .... ....
I can not say who had caught hold to the accused but both the accused persons had given brick blows. I can not identify the brick. The innova was of white colour but I had noted down its number. I had also not noted down the number of TSR. But both of them were at the spot and seized by the police.
15. During his crossexamination, he had deposed that, SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 11 The quarrel had taken place at a distance of about 3540 yrds from my house. .... .... ....
It was not dark in the gali. There was big yellow light installed in the street by the Corporation.
I had seen that one of the accused had caught the deceased and the other was giving brick blow but I can not specifically tells the role of the accused persons. I had not seen the faces of the boys who were giving beatings.
It is wrong to suggest that I identified the accused persons at the instance of the police or that I am deposing falsely.
16. This witness was reexamined by the Ld. Addl. PP for the State and he had deposed that, I have seen the accused persons at the spot and in the cross examination I could not understand the question put by the counsel for the accused. I had myself identified the accused persons before the police.
17. Similarly, Sh. Chand Babu, the alleged another eye witness of the prosecution was examined as PW2.
The relevant extracts of his testimony is extracted below:
'On the intervening night of 22/23.03.12 I was sleeping at my house. On that day at about 1.15 a.m. I heard the sound of my father and I along with my brother Mohd. Babu came outside and saw that two boys were giving beatings to a person and my father was trying to save him . I along with my brother Mohd. Babu also rushed there near to the aforesaid boys but those boys managed to escape towards Lal Quarters. ... ... ...
At this stage, the witness pointed out towards both the accused present in the court today as the same boys who were giving beatings to deceased. Witness correctly identified towards accused Rahul and Manoj .SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 12
18. Thus, as per the ocular direct evidence of PW1 & PW3, it is testified in the court that on the intervening night of 22/23.03.2012 at about 1:15 AM, PW1 Saleem heard a noise and saw that two boys ( both accused Rahul and Vinod, correctly identified in the court) were given beatings to a person ( Rajesh, the deceased, identified through photo in the court) with bricks. Also, they were corroborated to each other that PW1 had participated in the occurrence in order to save the deceased but failed and during the occurrence he had called his two sons as he was not able to stop the accused persons of their activities of beating the deceased.
The factum of arrival of his two sons namely Chand Babu and Mohd. Babu on his call was also testified by PW1 and that both his sons chased the accused persons when they ran away after giving beatings to the deceased at the relevant date, time and place.
Further, the facts that the TSR bearing No. DL1RG6588 and one Innova Car bearing No. DL4CAE3404 were found parked near the spot and the same was seized by the police in his presence.
The facts regarding above mentioned vehicles i.e. the TSR was being driven by the deceased and the car was being driven by accused Vinod, who was in company of accused Rahul @ Kake are proved facts. As per record, there is no dispute that the accused Vinod was a driver of Smt. Suman Rani, the superdar who had taken the vehicle on superdari vide Ex. PE (an admitted document) and the facts that TSR was being driven by deceased was proved through the testimony of Sh. Rambir, PW10, the owner of TSR, who has deposed that he had given the TSR on rent to Rajesh at the relevant date, time and place.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 13Also, PW1 had deposed that the accused persons had run towards Lal Quarter on leaving their car Innova on the spot and these facts are coroborative of the testimony of his sons PW3 & PW4, who tried to chase the accused persons but could not caught them. These vehicle were seized by the police from the spot are also corroborative facts.
Further that somebody informed the police and police arrived at the spot and found the deceased as injured and his body lying near the drain.
19. These witnesses PW1 & PW3 were extensively crossexamined by the defence counsel of both the accused persons at length on the abovenoted facts but these witnesses remained unimpeached to testify the above stated facts established on record.
20. Further, Sh. Mohd. Babu was examined as PW4 and the relevant extracts of his testimony is extracted below:
'On the intervening night of 22/23.03.12 I was sleeping at my house. On that day at about 1.15 a.m. I heard the sound of my father and I along with my brother Chand Babu came outside and saw that two boys were giving beatings to a person and my father was trying to save him. I along with my brother Chand Babu also rushed there near to the aforesaid boys but those boys managed to escape towards Lal Quarters. .... .... ....
The witness pointed out towards both the accused (correctly identified), present in the court today as the same boys who were giving beatings to the deceased. Witness correctly pointed out towards accused Rahul and Vinod. The witness identified the photographs of the deceased.
21. During his crossexamination, he had deposed that, SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 14 It is correct that when I reached near my father two boys had run away. I had not seen the faces of the boys who were beating the deceased. I had only seen the clothes of boys when they were running.
He was reexamined by the Ld. Addl. PP for the State and he had deposed that, I had narrated correctly in my examination in chief. I had correctly identified accused persons. Since I have come to the court for the first time so, I got little perturbed.
The Court has questioned him about his discrepancies of his cross examination and his version regarding the fact that he had not seen the boys as they had run away, with his depositions on reexamination by ld. Addl. PP and he answered that his father had shown the accused persons to him in the court when he had come along with him at the time of his testimony.
22. Ld. Counsels for the accused persons have raised the contentions that there was no big yellow light shown in the site plan by the IO though it was prepared at the instance of complainant as per the prosecution and that it was an occurrence of midnight and the witness/complainant, PW1 has admitted in his cross examination that, 'I had not seen the faces of the boys who were giving beatings'.
Also that in the similar lines, PW4 Mohd. Babu has admitted in his cross examination that, 'I had not seen the faces of the boys who were giving beatings'.
And that in answer to court question he has admitted that the accused persons were shown by his father in the court, when he came for deposing in the court. It was argued on behalf of accused persons that the identity of the accused persons could not be established by the prosecution as is clear from the testimonies of the alleged eyewitnesses PW1, PW3 & PW4, that they had not seen the faces of the SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 15 accused persons at the time of occurrence that proved that they had reached at the spot only after occurrence & only after the assailants had ran away from the spot after inflicting injuries and they could not see their faces because it was dark and there was no light to have an opportunity to see their faces.
23. In a criminal trial, the ocular evidence of an eye witness is always the best evidence but it is a settled norm that the testimony of an eye witness is required to be analyzed very carefully to test the reliability, credibility and truthfulness of the eye witness.
24. Also, in a catena of judgments Hon'ble Apex Court has observed that the discrepancies are bound to occur in the testimony of eye witness / witnesses, howsoever truthful they may be. In one of such cases titled as State of Rajasthan Vs. Smt. Kalki & Anr., AIR 1981 SC 1390, it is observed that, "In the depositions of (eye) witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like.
Thus, the infirmities and discrepancies are bound to occur in the normal course yet there is no reason to reject the testimony of such witness, if it is corroborated and supported with the other evidence connected with the offence.
25. On observing the above noted observations, in case titled as Sunil Kumar Sambhudayal Vs. State of Maharashtra decided on 11112010 in Criminal Appeal No. 891/2004, the Hon'ble Apex Court has observed that the infirmities and discrepancies are bound to occur in the normal course yet there is no reason to reject the testimony of such witness, if it is corroborated and supported with the other evidence connected with the offence, but the Court has to consider whether SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 16 such discrepancies are material or minor in nature before placing its reliance on such testimonies.
26. Here, it is also worth to mention the observations of Hon'ble Apex Court in case titled as Krishna Mochi and Ors. v. State of Bihar etc. cited as 2002 (6) SCC 81, that , 'A witness may not stand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skilful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored.
It was further observed that, 'The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower.
Some discrepancy is bound to be there in each and every case which should not we weighed by the Court so long as it does not materially affect the prosecution case.
In case discrepancies pointed out are in the realm of pebbles, court should tread upon it.
27. As per the above stated principles, the Court while appreciating the evidence should not loose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower as the discrepancies in the depositions of the eyewitnesses may be due to normal errors of observation, errors of memory due of lapse of time, due to mental disposition such as shock and horror of reminding the occurrence and otherwise.
28. In the background of the abovenoted principles set out above, it is observed that on the test of realities of life observing that the witness PW1 was a driver by SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 17 profession of average Intelligence Quantity (IQ) and was residing in a very poor background as is clear from his testimony and was not at all connected with either the deceased who died in the occurrence or with the accused persons to have any enmity or illwill against the accused for any kind of false implications of them and has reached on hearing the cries from the street and his presence at the spot has not been disputed nor calling his sons during the occurrence is an abnormal behaviour of an ordinary person. Also, from his complaint Ex.PW1/A and his testimony, regarding the manner of occurrence and the manner of causing injuries, there appears no discrepancies and all the three eyewitnesses, PW1, PW3 & PW4 have reproduced the occurrence in a very simple language that they found two boys beating a man with bricks.
29. It is a matter of realities that such ordinary average level persons when appear to face the test of cross examination, sometimes they answers without understanding the questions and on the point of his depositions of PW1 that he has not seen the faces of the boys, when he was reexamined by Ld. APP he has clarified that, I have seen the accused persons at the spot and in the cross examination I could not understand the question put by the counsel for the accused. I had myself identified the accused persons before the police.
30. When the testimony of PW1 is read in totality, it is observed that on the point of his participation in the quarrel, in order to save the man (the deceased), the testimony of this witness remained unimpeached and even on the point that there was no light to see the faces of the accused, he was very clear by explaining that it was not dark in the gali and there was a big yellow light installed in the street by the SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 18 corporation then it is clear that he had seen the accused persons when they were beating the deceased with bricks.
In the light of abovenoted facts testified by PW1, it is not beyond the reality that the answer in his testimony, that 'I had not seen the faces of the boys who were giving beatings' , might have been snatched from him by an astute lawyer from the witness (PW1) who was in fact a rustic, an illiterate and in such circumstances, when witness faced cross examination, he became imbalanced and when he was reexamined by the Ld. APP, he had clarified that he could not understand the question put by the counsel for the accused and that he had himself identified the accused persons before the police and that he had seen the accused persons at the spot.
Thus, the answer on the basis of which the contentions regarding identity of the accused persons have been raised, appears to be minor discrepancy and the one that occurred only due to an imbalance of such witness due to stress of cross examination and such realities of life cannot be ignored.
31. Also, the manner, the complainant had explained in his complaint Ex.PW1/A and in his testimony as PW1, proves the facts that on seeing the person (deceased) beaten by two boys, as an ordinary person, he tried to help him and then called his sons for saving him and in such manner of occurrence, it is not possible that he has no occasion to see the faces of the accused.
32. In the similar manner, PW4 when became perplexed on the point of identity may not be able to understand as to what to answer to the question asked in his cross examination and reexamination one after another & when he was court questioned SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 19 and he answered that his father has shown the accused persons in the court but on this answer, it cannot be inferred that this witness was not present on the spot or that he could not see the faces at the spot. May be he had understood the question that as to how he could identify the accused persons in the court. May be if he could have been asked as to whether he had seen the faces of the accused on the spot at the time of occurrence, he could be in a position to answer that during occurrence he had seen the accused or not. The witness in his chiefinexamination has categorically identified the accused persons as the 'same boys' who were giving beatings to the deceased.
Thus, only because PW1 or PW3 were reexamined for clarification on the point of identity, their testimonies cannot be discarded on this point due to the reasons that they were reexamined to clarify the discrepancies in their depositions.
33. Further, as per the above stated principles, the Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower as the discrepancies in the depositions of the eyewitnesses may be due to normal errors of observations, or due to mental disposition such as shock and horror of reminding the occurrence and otherwise.
34. It is observed that all these eye witnesses PW1, PW3 & PW4 were absolutely corroborative to each other on the point of manner of occurrence and on the facts that the deceased was beaten by bricks and succumbed due to the injuries inflicted with bricks by the two boys.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 2035. Further, it is observed that Sh. Chand Babu PW3 in corroboration to PW1 has categorically deposed that on hearing the sound of his father when alongwith his brother came outside, he saw that the two boys were giving beatings to a person and his father was trying to save him and when both the brothers rushed near to them they managed to escape. This witness has also pointed out both the accused persons in the Court as the same boys who were giving beatings to the deceased. He had also identified the deceased through his photographs. This witness was extensively cross examined on behalf of accused persons and he has categorically denied the suggestions that he had not seen the faces of accused persons. He had also denied the suggestion that he could not see the faces of the accused persons because they had run away from the spot and that he was not completely alert at that time as he was in deep sleep at that time when he was called by his father.
36. On scrutiny of the testimonies of these eyewitnesses, it is observed that these eyewitnesses have witnessed the occurrence and have testified in the court that at the time of occurrence, two boys had beaten the deceased with bricks and that both the accused persons who were present in the Court were the same boys who had given beatings to the deceased and that on finding that the deceased had died, he was thrown in the drain by them in order to escape their culpability and they ran away from the spot.
37. These facts found corroborated and supported with other independent evidence connected with the offence.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 2138. As per the other evidence on record, it is observed that as per PW20, Inspector Sunil Kumar, on receiving information about a quarrel vide D.D. No. 3A EX.PN1, when he reached the spot of occurrence he found, the vehicle TSR No. DL1RG 6588 parked at the spot in damaged condition and it was damaged from the front left side and the green paint of the vehicle was wearing off, also that one Innova vehicle No. DL4CAE3404 with key was found parked at a distance of 30 meters from the spot having dent marks on the rear side bumper and towards the right side.
39. The DD entry 3A dated 23.03.2012 Ex.PN1, an admitted document, shows an information at about 1.30 AM received from an unknown person that there is a quarrel in a street near Thakur Properties at Vijay Vihar Phase1, ABlock.
40. The crime team report Ex.PC, an admitted document, has observed : It was observed that the Auto (Threewheeler) and the Innova Car had collided to each other.
41. The mechanical inspection reports of car Ex.PM and of threewheeler scooter Ex.PN have shown the damages on the vehicles in corroboration of the abovestated report of the crime team who inspected the vehicles on the spot and corroborated the observations made by the crime team report and the damages observed in such reports were clear to show that both vehicles collided with each other.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 2242. Also, regarding the fact of hitting of the TSR bearing No. DL1RG6588 with the Car Innova bearing No. DL4CAE3404, the prosecution has proved on record,
i) Detailed report dated 30052012 Ex. PD, the relevant extracts of which are as under: Result of examination/Opinion Samples from Exhibits 1b ( Bumper cover and green colour paint flakes) and exhibit2 (Green colour paint flakes) were examined under Microsope, VISPEC and FTIR Spectrometer and, it was found that they were similar in respect of colour texture appearance under U.V. Light and FTIR Spectra.
ii) Detailed report dated 24052012 Ex. PC, the relevant extract of which are as under: The undersigned along with other team members inspected and examined the Auto ( Three Wheeler) with registration Number DL IRG 6588 and an Innova Car with registration Number DL 4C AE 3404 in police station, Vijay Vihar. On examination following observations were made.
The Auto (Three Wheeler) was having dent marks on its front left portion. A portion of the green colour paint was found missing due to the impact. The Innova Car was also having dent marks in its back right area on the metallic bumper and the rubber cover wrapping the right end of the bumper was also found broken.
On inspection green colour paint chips were found inside the rubber cover. I.O., was advised to collect the sample for further laboratory examination.
On the basis of observation with respect to pattern and nature of dent marks present at the corresponding positions revealed that the Auto (Three Wheeler) and the Innova Car had collided to each other.
43. Further, FSL Report Ex.PD, an admitted document has proved that the green colour of the TSR bearing No. DL1RG6588 that was wearing off was found on the car make Innova vehicle No. DL4CAE3404, leaving no room of doubt that these vehicles had collided to each other and to this extent the depositions of PW1 and his complaint Ex.PW1/A were absolutely corroborated that the cause of quarrel between SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 23 the deceased and the accused persons were dent caused on the car of the accused persons by the TSR of the deceased at the relevant date, time and place. This prove the motive behind the commission of crime.
44. The notice u/s 133 M. V. Act Ex.PW20/A, issued on 23.03.2012 to Smt. Suman Rani, the owner of Innova vehicle No. DL4CAE3404 was replied vide her reply Ex.PW20/B, in writing that, 'the accused Vinod was in custody of the aforesaid vehicle at the time of incident'.
Also, PW10 Sh. Rambir has testified in the Court, in his unrebutted testimony that the TSR bearing No. DL1RG6588 was given on rent to one Rajesh (the deceased).
45. The the prosecution has proved on record that the TSR bearing No. DL1RG 6588 allegedly driven by the deceased Rajesh and Car Innova bearing No. DL 4CAE3404, allegedly driven by the accused persons were collided to each other, which is the reason of quarrel between the deceased and the accused persons.
46. Thus, it was established on record that these two vehicles i.e. TSR bearing No. DL1RG6588 and Innova vehicle No. DL4CAE3404 were being in possession of the deceased and accused Vinod respectively at the relevant date, time and place and both had collided with each other at the time of incident.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 2447. Further, the prosecution has proved on record the FSL report Ex. PW17/A are as under: Results of Analysis:
Exhibits Blood was detected on exhibits
'1'( cemented piece)
'2' (Cemented piece)
'3' (One Broken Brick),
'4a' ( One jean pants of accused Rahul) 'AB' Group
'4b' ( One shirt of accused Rahul ), 'AB' Group
'5a' ( One jean pants of accused Vinod) 'AB' Group
'5b' ( One shirt of accused Vinod), 'AB' Group
'6a' ( One banian of deceased) 'AB' Group
'6b' ( One shirt of deceased), 'AB' Group
'6c' (One pants of deceased ), 'AB' Group
'6d' (One sweater of deceased), 'AB' Group
'7' (Gauze cloth piece of deceased) 'AB' Group
48. This FSL report proves that the cloths of these two accused persons worn by them at the time of occurrence were having blood stains matching with the blood group of the deceased and there is no explanation or averment on behalf of accused persons as to how this blood has come on their cloths, if they were not involved in the occurrence nor they have come with the contrary plea of the blood stains on their cloths having group of AB, belonging to the deceased on the day of occurrence.
49. Further, the cloths of accused Rahul @ Kake and accused Vinod were got recovered at their pointing out and in consonance of their disclosure statements Ex.PW8/B and Ex.PW12/C respectively and such cloths were seized by the Investigating Officer vide seizure Memos Ex.PW8/D & Ex.PW12/E and these SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 25 disclosure statements are admissibleinevidence u/s 27 of Evidence Act to the extent of recovery of such cloths.
The eyewitnesses PW1, PW3 & PW4 have identified the cloths of the accused persons Rahul Ex.P1 and of Vinod Ex.P2 as the same worn by them at the time of occurrence.
50. The FSL Report Ex.PW17/A proves that the blood stained cloths Ex.4a & 4b belonging to accused Rahul and of Ex.5a & 5b belonging to accused Vinod were found with the same blood having blood group as AB group as that of the cloths Ex.6a to 6d belonging to the deceased.
51. Thus, the conjoint reading of the ocular evidence of the eyewitnesses PW1, PW3 & PW4 with the above discussed documentary and scientific investigation reports establish the one and the only fact / hypothesis that the TSR bearing No. DL1RG6588 driven by the deceased Rajesh and car bearing No. DL4CAE3404 occupied by accused Vinod and Rahul had collided with each other at the relevant date, time and place and that the deceased Rajesh received injuries by bricks inflicted by the accused persons whose cloths were blood stained with the blood of the deceased during the quarrel / scuffle / beatings in the occurrence at the relevant date, time and place. The disclosure statements of the accused persons, that led to recovery of such blood stained cloths at their instance, strengthen the version of the accused in his disclosure statement as stated from the mouth of the eyewitnesses about the manner of occurrence in which both the accused persons had beaten the deceased with bricks and the deceased received injuries during SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 26 such occurrence, due to which he succumbed to injuries.
52. Now come to the cause of death of the deceased.
As per PW18, SI G. R. Tanwar, on the instructions of Investigating Officer Inspector Sunil Kumar, the body of the deceased Rajesh Kumar was handed over for the postmortem vide his request Ex.PW18/G and the postmortem was conducted at Mortuary of BSA Hospital on 23032012 between 2:00PM to 3:00PM, reporting the time of death about 6 hours since death.
53. As per PM report Ex. PL, an admitted document, the cause of death of the deceased was Death is due to the combined effect of cerebral damage and asphyxia consequent to blunt force trauma to the head and obstruction of airways by foreign material. All injuries are antemortem, fresh in duration. Injuries 1 and 2 are caused by a blunt object and sufficient to cause death in the ordinary course of nature.
The relevant extracts of the report is extracted below:
Date and Time of PostMortem examination 23.03.2012 at 02.00 P.M. 03.00 P.M. PROBABLE TIME SINCE DEATH About 6 hours EXTERNAL EXAMINATION Injuries:
1. Laceration 2 cm x 0.5cm x scalp layers deep was present over posterior aspect of left parietal region of scalp.
2. Laceration 5cm x 1cm x scalp layers deep was present over posterior aspect of left parietal region of scalp SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 27
3. Abrasion 2cm x 1cm present on right side of forehead placed 1cm above outer end of right eyebrow.
4. Abrasion 1cm x 1cm present over the glabellar prominence.
5. Abrasion 4cm x 3cm present on outer aspect of middle of left thigh.
6. Abrasion 3cm x 3cm present on front of left knee.
INTERNAL EXAMINATION
i) Extravasation of blood was present over left parietal region underlying injuries 1 & 2 on reflection of scalp. No fractures of skull bones were present. Patchy subarachnoid hemorrhages were present over the brain more prominent over the fronto parieto temporal lobes on both sides. Brain was edematous with evidence of herniation of parauncus of both sides. The gyri were fattened and the sulcus were obliterated.
OPINION Death is due to the combined effect of cerebral damage and asphyxia consequent to blunt force trauma to the head and obstruction of airways by foreign material. All injuries are antemortem, fresh in duration. Injuries 1 and 2 are caused by a blunt object and sufficient to cause death in the ordinary course of nature.
54. Further as per result of examination in the Finger Print Expert Report Ex.PB (an admitted document), on the comparison of chance prints Q1 to Q2 lifted from the car with the finger prints of accused Vinod, it is opined that the Chance prints marked Q2 & Q4 were identical with Right Thumb & Right Middle finger impression marked S1 & S2 respectively on the finger impression slip of Vinod S/o Sh. Prem Singh (Accused).
Further the report Ex. PW15/A12 regarding the comparison of chance prints with the finger prints of accused Vinod proves that the Chance print marked Q1 is IDENTICAL with Right hand palm portion marked S3 on the palm impression slip of Vinod S/o Sh. Prem Singh.
The relevant extract of the detailed report Ex. PWPB is as under: SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 28 Result of the examination:
Chance prints marked Q2 & Q4 are identical with Right Thumb & Right Middle finger impression marked S1 & S2 respectively on the finger impression slip of Vinod S/o Sh. Prem Singh (Accused) Chance print marked Q3 is partial & smudged and does not disclose sufficient no. of ridge details in their relative positions for comparison, hence it is unfit for comparison/search.
The relevant extract of the detailed report Ex. PW15/A12 is as under: Result of the examination:
Chance print marked Q1 is IDENTICAL with Right hand palm portion marked S3 on the palm impression slip of Vinod s/o Sh. Prem Singh.
Thereby proving the presence of accused Vinod in the vehicle and having the drinks in such vehicle at the relevant date, time and place. The detailed report Ex.15/A1 to A12 was the documentary piece of evidence in corroboration of ocular evidence of PW15 and supporting the testimony of PW20, the Investigating Officer in whose presence the crime team has inspected the spot.
55. The TIP proceedings Ex. PR & Ex. PS (also admitted documents) pertaining to both the accused persons namely Rahul @ Kake & Vinod Kumar, for the purpose of identification of the accused persons reveal that the accused persons have refused to participate in the TIP proceedings for the reasons that their photographs have already been taken by the police on their mobile phone, despite warning given to them that an adverse inference shall be drawn against them during trial, if they will not participate in the TIP proceedings. Thus, these documentary evidence lead to an adverse inference against the SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 29 accused persons that in case they participated in the TIP proceedings, they could have been identified by the eyewitnesses examined as PW1, PW3 & PW4.
56. Ld. Counsel for the accused Rahul has raised the contentions that the role of each of the accused persons played during the occurrence has not been proved and the scientific reports show the connection of the vehicle i.e. Car make Innova bearing No. DL4CAE3404 was in custody of accused Vinod being its driver hired by the registered owner of the such car and even the finger prints belonging to Vinod and thus, against accused Rahul the connecting evidence are missing and the witnesses who were the alleged eyewitnesses had not seen the accused persons as the occurrence was of mid night and there was no light shown in the site plan at the place of occurrence and as per the testimonies of PW3 & PW4 when they reached on the spot of occurrence on calling by his father, the accused persons have already run away.
57. Regarding these contentions, it is observed that to connect accused Rahul or even accused Vinod there is sufficient evidence independent to that of the testimonies of eye witnesses, however through the testimony of PW1 the complainant, it is duly proved that he had not only witnessed the occurrence but in order to save the deceased had also participated in the quarrel for the side of the deceased to save him and in such process, he was thrown on the threewheeler of the deceased by the accused persons, thus it cannot be said that he was not able to see the accused persons or identify them on the spot.
He has categorically deposed in his testimony that he has seen the accused SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 30 persons on the spot at the time of occurrence. Regarding the discrepancies on the point of not seeing the faces of the accused persons, this witness has clarified that this answer was due to the reasons that he could not understand the question of the counsel of the accused at the time of crossexamination and the court cannot forget the realities of life that an average common man generally under the stress of crossexamination, sometimes does not understand the technicalities of the words used but the totality of the testimony of PW1 makes it clear that accused Rahul and Vinod both were duly identified by this witness.
58. Here, for the testimony of PW1 the observations made by Hon'ble Apex Court in case titled as Krishna Mochi and Ors. v. State of Bihar etc. cited as 2002 (6) SCC 81, are relied upon wherein it was observed that , 'A witness may not stand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skilful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored.
It was further observed that, 'The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower.
Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, court should tread upon it.
59. Further on the point of identity of both the accused persons, an adverse inference can be drawn on the refusal of the accused persons for nonjoining of SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 31 the TIP proceedings that the eyewitnesses could have identified the accused persons in case they were to face the complainant and eyewitnesses during Test Identification Parade.
Further, the basic evidence, scientific in nature, regarding the FSL examinations of the cloths of the accused Rahul and Vinod establish their presence on the spot and involvement of both in the commission of crime as the blood stained cloths of these accused persons were containing blood of the deceased having the blood of AB group.
Thus, the contention of the counsel for accused Rahul has no force as even Rahul's involvement is proved through scientific investigation of the crime apart from the ocular evidence of eyewitnesses.
60. Also, the contentions regarding nonmentioning of light in the site plan by the IO have no force on the face of the testimony of PW1 who has categorically deposed that there was a big yellow light on the street at the spot and there was sufficient light in which he could see the boys beating the deceased. It is not necessary for an investigating officer to detail each and every articles / items available on the spot.
61. Further, it is observed that the specific roles of individual accused during the occurrence are not required to be clarified by the eyewitnesses as it has been clearly mentioned in the testimonies of complainant PW1 that he saw both the boys beating the deceased with bricks.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 3262. Thus, as per the facts and circumstances above discussed established on record that were sharing their common intentions of beating the driver of the TSR (the deceased) on the context of causing damages to their car by his TSR and for not paying the expenses to repair the damages when asked.
63. So far as the common intention as prescribed u/s 34 IPC is concerned , let the law in relation to ingredients and application of Section 34 IPC be examined. Section 34 IPC reads as below:
Section 34. Acts done by several persons in furtherance of common intention When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
64. In a very recent judgment in the case Nand Kishore v. State of Madhya Pradesh, (2011) 12 SCC 120, the ambit and scope of Section 34 IPC as well as its applicability in a given case has been discussed as under :
A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
65. In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34 IPC. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 33The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word 'done'. It only flows from this that before a person can be convicted by following the provisions of Section 34 IPC, that person must have done 'something' along with other person. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 IPC must, therefore, be a participant in the joint act which is the result of their combined activity.
66. Under Section 34 IPC, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different in such case.
67. By referring to the common intention, the Hon'ble Apex Court has guided that the courts must keep in mind the fine distinction between common intention on the one hand and mens rea as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.
68. Section 34 IPC also deals with constructive criminal liability. It provides that SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 34 where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. ( Reliance is placed on the observation made in case titled as Brathi v. State of Punjab cited as AIR 1991 SC 318, equivalent citation 1990 SCR Supl. (2) 503.
69. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot, however it may be the result of any predetermined plan to commit such an offence but this will always depend on the facts and circumstances of the case.
70. In the present case, both the accused Rahul and Vinod had gone to the spot of occurrence unarmed in order to settle the score with the deceased for causing damages to their vehicle by the driver (the deceased) of the TSR but as is evident from the statement of the witnesses, they not only became aggressive but also committed a crime and went to the extent of causing about six injuries with bricks over and over again at most of the parts of the body, though such parts were not vital parts and believing that he has died they had thrown him in the nearby drain, in order to save their skin and as per postmortem report his death was caused due to the combined effect of cerebral damage and asphyxia consequent to blunt force trauma to the head and obstruction of airways by foreign material. But for SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 35 their participation and a clear frame of mind to cause injuries to the deceased, Vinod probably would not have been able to cause the death of Rajesh alone if both Vinod and Rahul not joined hands together.
The role attributable to each of both, thus, clearly demonstrates common intention and common participation to achieve the object of causing injuries to the deceased. In other words, the criminal act was done with the common intention to cause injuries to the deceased Rajesh. These facts established on record show that both the accused persons coming together in the night time and giving such serious blows and injuries with bricks and with active participation shows a common intention to cause such injuries to kill the deceased.
71. The abovenoted piece of evidence, ocular as well as documentary, duly connect the accused persons with the crime as the facts established that they were occupying the car Innova bearing No. DL4CAE3404, the car collided with the TSR bearing No. DL1RG6588 being driven by the deceased, the deceased received severe injuries on the spot, the presence of accused persons on the spot and their involvement in the occurrence of causing injuries to the deceased and that during occurrence their clothes were having blood stains the same blood group as was on the clothes of the deceased and that the death of the deceased caused due to the injuries received by him in the occurrence, at the hands of the accused persons.
The ocular evidence of PW1, PW3 & PW4, has given detailed account of the manner of occurrence which they witnessed and the corroborative ocular evidence of the investigating persons, substantiated through the above discussed SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 36 documentary evidence, leads to one and only one conclusion and hypothesis that the accused persons on the pretext of causing damages on their vehicle from the vehicle i.e. TSR of the deceased and in apprehension of on nonrealizing of the expenses of repairs from the deceased, chased him, stopped him, entered into altercations and scuffled and thereby caused injuries to the deceased to the extent that due to such injuries, the injured, the deceased, succumbed to such injuries.
72. So far as the roles played by the accused persons individually are concerned, it is observed that the ocular evidence of the eyewitnesses is sufficient to establish that both of them with their common intentions have caused injuries to the accused.
73. Therefore, it is established on record by the prosecution that the accused persons have cause death of the deceased by inflicting injuries with bricks thereby it is proved that the accused persons have committed culpable homicide.
74. Now come to the charges levied against the accused persons.
75. Both these accused persons were charged with the offences punishable U/s 302/34 IPC on the allegations that on the intervening night of 22/23.03.2012 at about 1:15 a.m. both of them have committed murder of Rajesh Kumar by inflicting brick injuries on him.
The prosecution has established on record that the deceased Rajesh Kumar was killed by these accused persons at the relevant date, time and place but the million SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 37 dollar question is :
Whether the offence committed by the accused persons was murder, or culpable homicide not amounting to murder ?
76. To answer this question the glaring difference of the provisions of Section 299 and 300 of Indian Penal Code may be stated in the following manner in a tabular form :
Section 299 Section 300
(Culpable homicide) (Murder)
A per commits culpable homicide, if the act by Subject to certain exceptions, culpable homicide is which the death is caused is done- murder, if the act by which the death is caused is done Intention
a) With the intention of causing death 1) With the intention of causing death
2) With the intention of causing such bodily injury as the offender knows to be likely to cause the death of person to whom the harm is caused;
3) With the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
Knowledge
c) With the knowledge that ... the act is likely to 4) With the knowledge that the act is so imminently cause death dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death
77. In case titled as State of Andhra Pradesh Vs. Rayavarapu Punnayya & another, 1977 AIR 45, the issue was discussed at length and it was observed that, 'Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages.
The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, leads to the, second stage for, considering whether that act of the accused SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 38 amounts to culpable homicide as defined in 299.
If the answer to this question is primafacie found in the affirmative, the stage for considering the operation of Sec. 300 IPC is reached.
This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Sec 300.
If answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Sec 304 IPC, depending respectively, on whether the second or the third clause of Sec 299 is applicable.
78. In case titled as Reg vs Govinda cited as (1877) ILR 1 Bom 342 (decided on 18 July, 1876), Hon'ble High Court of Bombay has dealt with the culpability of an accused who is charged with killing of a person and the issue of difference between an offence called as 'culpable homicide' and 'murder' was discussed minutely and it was observed that :
Whether the offence is culpable homicide or murder, depends upon the degree of risk to human life. If death is a 'likely' result, it is culpable homicide; if it is the 'most probable' result, it is murder.
The offence is culpable homicide, if the bodily injury intended to be inflicted is 'likely' to cause death; it is murder, if such injury is 'sufficient' in the ordinary course of nature to cause death.
The distinction is fine, but appreciable.
It is a question of degree of probability. Practically, I think, it will generally resolve itself into a consideration of the nature of the weapon used. A blow from the fist or a stick on a vital part may be likely to cause death; a wound from a sword in a vital part is sufficient in the ordinary course of nature to cause death.
79. In the present case the accused persons had inflicted injuries on the deceased with bricks, 'the bricks' was a chance weapon available on the spot. They struck the deceased several times causing multiple injuries but not aiming at the vital part of the body and they did not know that with such injuries, SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 39 the injured would die and they had further thrown him in a drain, assuming that he had expired, but it is not ascertain as to whether he had died prior to he was thrown in the drain, thus neither 'the weapon' used nor the nature of inflicting injuries were with the intentions that the death was the most probable result to cover the case within the ambit of 'murder'.
80. Thus, there appears an intention to cause the bodily injury with which the death was a 'likely' result that takes it within the ambit of 'culpable homicide' but the injuries were not intended to be inflicted in such a manner that such injuries were 'sufficient' to cause death in the ordinary course of nature to cause death.
81. Therefore, in nutshell, the facts and circumstance as established on record are that the vehicle of the deceased collided with the vehicle of the accused persons and the accused Vinod who was a poor driver and was expecting to pay the cost of causing damages to the vehicle to his employer from his pocket and believing that the damages are caused only due to the fault of the TSR driver (the deceased), both the accused persons wanted to settle the account from the deceased for compelling him to pay the expenses of the repairs of the damages and that is why the deceased was not assaulted at the place where the vehicles had collided rather they wanted to take the TSR driver (the deceased) to the police station for entering into a compromise in front of the police personals but when they found that the TSR Driver had tried to ran away with his TSR in a different direction to that of the police station in order to escape from his liabilities, these two accused persons chased him and when an altercations had taken place SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 40 between them and in that process, in an anguish and spur of moment of anger, these accused persons inflicted injuries with bricks as already available on the spot itself and thus, the occurrence had taken place in a sudden and in spur of moment of anger that has taken a shape of 'quarrel' and the weapon of inflicting injuries that was a chance weapon and caused injuries that resulted into the death of deceased.
The totality of facts gathered for determining the intentions show there was an intention of the accused persons to cause bodily injuries but the injuries were such that the death was a 'likely' result and was not the 'most probable result' to take this case within the ambit of 'culpable homicide' and not 'murder'.
82. Had it been the case that the accused persons had intentions to cause death of the TSR Driver as a most probable result for causing damage to their vehicle then there was no need to take such TSR Driver to the police station for settling the matter, they could have inflicted injuries by using any such 'weapon' that could 'definitely' in all probabilities cause death at the spot itself where the vehicles had collided but in this case the accused persons entered into a quarrel with the deceased when he tried to escape from his liability of paying the expenses for the damages caused to their car and in the anguish / anger, the accused persons inflicting injuries to the deceased by pickingup the bricks from the spot itself, thus the decision of causing bodily injuries to the deceased was sudden and in the heat of anger that has arisen during an altercation took place with the deceased.
83. The injuries inflicted on the deceased, which, from the medical evidence, it SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 41 does not appear that there was an intention to cause such bodily injury to the deceased that was 'sufficient' in an ordinary course of nature to cause death. Ordinarily, if the accused persons would wish to destroy the life of the deceased, it was very easy for them to destroy his life by using much 'dangerous' weapon even available with them in their car or on the spot and they could have caused death by inflicting one or two injuries only with such 'force' and on the 'vital' part that he could have been died without wasting much time particularly when they saw that some of the public persons were approaching to them rather they had thrown the deceased in a drain (Nala) in such injured condition only in order to save their skin.
84. The issue of culpability of an accused killing a deceased to be covered under Section 299 or 300 IPC was also considered by Hon'ble Apex Court in case titled as Shankar Narayan Bhadolkar Vs. State of Maharashtra on 9 March, 2004 and it was observed , 'In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not viceversa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'.
For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide.
The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'.
The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304.
Then, there is 'culpable homicide of the third degree'. This is the lowest SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 42 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 Section 304.
85. The three types of culpable homicide above mentioned are basically depends on the key words used within the provisions of Section 299 and 300 IPC in describing the degrees of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree.
The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury.......sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
86. Ld. Additional Public Prosecutor for the State has argued that in the testimony of PW1, the eyewitness has disclosed that he saw that the two boys (both the accused persons) were giving beatings to a person (deceased) with brick mercilessly and he heard a painful crying of the boy who was being beaten and thus, their intentions were to cause death of the deceased.
87. To this contention, the observations made by the Hon'ble Supreme Court in the case of Virsa Singh v. State of Punjab, (AIR 1958 SC 465) are considered. In such case, Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3) of Section 300 IPC.
It was observed that 'the prosecution must prove the following facts before it can bring a case under SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 43 Section 300, "thirdly".
First, it must establish quite objectively, that a bodily injury is present;
Secondly the nature of the injury must be proved. These are purely objective investigations.
Thirdly, It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further, and Fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender'.
88. In the background of above noted observations on the underlying difference between the murder (300 IPC) and the culpable homicide that is not a murder (299 IPC, 304 IPC), is applied to the present case that the basic difference is of a particular type of intention of accused persons at the time of inflicting injuries for covering it within the ambit of 'murder' that such bodily injury was of such a degree of 'certainty' of death in all probabilities and if the death is a likely result from such bodily injuries then it would be culpable homicide (299 IPC) but not amounting to murder and will be covered within the ambit of Section 304 IPC (Part1).
89. Further, it is not the 'number' of injuries but the 'measure' of muscular force used at the time of causing injuries and the part of the body aimed at, that would be the determinable factor as to whether the accused persons intended to cause such bodily injuries by which the death would be most probable result in all circumstances or the injuries by which the death was a likely result.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 4490. The principles when applied to the facts of the instant case, it is observed that the accused persons who used 'brick' as a weapon, though inflicted injuries several a time on the deceased but the number of injuries mentioned in the postmortem report/ MLC and nature of such injuries were that these were not aimed at a vital part of body or with such force that these could have produce the death as a certain and most probable result to cover it within the ambit of Section 300 IPC.
91. As per the postmortem report, in the internal examination of head, it is reported that no fractures of skull bones were present. Patchy subarachnoid hamorhages were present over the brain. On neck, no breakage of Hyoid bone and thyroid cartilage shown. No fractures of the rib cage were present. The cause of death was due to combined effect of cerebral damage and asphyxia consequent to blunt force trauma.
The accused persons, if intended to cause death as a certain & definite result of such bodily injury could have used such muscular force on head to cause his death as definite result but it is not so in this case, if the facts established on record are taken in its entirety.
92. As per the postmortem report, the blunt force trauma to the head was cause of death, that may have been caused when the injured was thrown in the drain, on seeing the public approaching the spot and in order to save their skin, they run away. The injuries No. 1 and 2 i.e. Laceration over the posterior aspect of left parietal region of scalp were found as the cause of death.
As per the eyewitness, it is not testified that the deceased was facing the accused persons when he was beaten by the boys (the accused persons) or he was SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 45 facing the earth at the time of giving beatings. PW1 has deposed that he tried to save him and in that process he was thrown on the TSR. PW1 has not specifically mentioned the manner or strength of 'the force' used by the accused persons at the time of inflicting injuries with bricks.
Further, the totality of the circumstances as came on record made it clear that the accused persons had no intentions to kill the deceased rather when 'a quarrel' had taken place between them, they had beaten the deceased with brick available on the spot. The use of brick as the weapon also makes it clear that the accused persons at the time of causing bodily injuries to the deceased were not sure or having knowledge that by causing such bodily injuries death of the deceased would be the most probable result of such injuries.
93. Thus, from the abovenoted discussions on the facts and law, it is clear that prosecution had not established the facts that could prove that the accused had such intentions of causing bodily injuries as was described in Clause 3 of Section 300 IPC to take the case within the ambit of 'murder' rather the court is of the considered view that it was 'culpable homicide' not amounting to murder to be covered within the ambit of Section 304 IPC and as per the facts established on record, it is covered well within PartI of 304 IPC as the intentions of causing bodily injuries were clear on the part of the accused persons at the time of occurrence but not such bodily injuries that could definitely and certainly cause death.
94. Ld. Counsels for accused persons have argued that the case is covered U/s 304 PartII and not 304 PartI, in view of the law settled in Rajju Vs. State of U.P. Cited as 1994 Cril. J 105.
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 4695. It is observed that the facts and circumstance of such case cited above are distinguishably different to that of the present one thereby the opinion therein has lost its application to the present case as in the present case, the accused persons have caused the injuries to the deceased having intentions of causing such injuries that may have caused death as a 'likely' result and the accused persons may be deemed to have acquired knowledge that by inflicting injuries with bricks they may be caused death to such person (deceased) and thus, there was no 'absentia' of the intentions to take it in the part II of Section 304 IPC.
Therefore, the case is clearly covered within the ambit of Section 304 Part I.
96. Further, as per the settled legal propositions of law, in the case titled as Sharad Birdhichand Sarda Vs. State of Maharastra, cited as AIR 1984 SC 1622, the Hon'ble Apex Court has laid down the tests of certain pre−requisites before recording conviction in a criminal trial, which are as under:
i). The circumstances from which the conclusion of guilt is to be drawn 'must or should' and not 'may be' fully established.
ii). The facts so established should be consistent only with the hypothesis of the guilt of the accused persons & these established facts should not lead or be explainable on any other hypothesis except that the accused are guilty;
iii). The circumstances should be of conclusive nature and tendency;
iv). They should exclude every possible hypothesis except the one to be proved; and
v). There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
97. The above settled principles of law when applied to the facts of instant case and on careful perusal of entire evidence on record including the disclosure statement of the accused persons, admissible in evidence u/s 27 of Evidence Act, SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 47 it is observed that the prosecution has duly established on record through the ocular as well as documentary evidence that the accused persons Rahul @ Kake and Vinod have inflicted injuries by bricks to the deceased Rajesh, with common intentions to cause such bodily injuries to the deceased that his death was the likely result.
98. Thereby, it is duly proved against both the accused persons namely Rahul @ Kake and Vinod that they have committed an offence of culpable homicide U/s 299 IPC punishable U/s 304 (PartI) IPC but not amounting to murder.
99. Thus, the prosecution was able to establish beyond reasonable doubts that both the accused persons namely Rahul @ Kake and Vinod have committed the offence of culpable homicide not amounting to murder punishable u/s 304 (PartI) IPC against.
Resultantly, the accused persons namely Rahul @ Kake and Vinod are held guilty of the offence under Section 304 (PartI) IPC read with Section 34 IPC.
100. Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
Announced in the open Court (Dr. Archana Sinha)
on this 31st day of May 2017 Addl. Sessions Judge02,
North, Rohini Courts, Delhi
31.05.2017
SC No. 58096/16 , FIR No. 96/12 PS. Vijay Vihar State Vs. Rahul @ Kake & Ors Page No. 48