Delhi District Court
State vs . Salman on 21 February, 2014
State Vs. Salman
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 29 of 2012
ID No. : 02401R0283692012
FIR No. : 25/2012
Police Station : Anand Parbat
Under Section : 302 IPC
State
Versus
SALMAN
S/o Mushtaq
R/o Village Chittar Koni,
Dildar Nagar,
Distt. Gazipur, U. P.
.........Accused
Date of Institution : 06.06.2012
Date of Committal : 04.07.2012
Date of judgment reserved on : 31.01.2014
Date of judgment : 15.02.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Dinesh Sharma, Advocate, Amicus Curiae for the
accused
SC No. 29/12 Page 1 of 35
State Vs. Salman
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on March 17, 2012 at about 3:10 P.M. an intimation was received at police station Anand Parbat through wireless operator that an information had been received in police control room from mobile phone number 9711478146 that one person had been murdered at Industrial Area, gali No. 4. Said intimation was reduced into writing vide DD No. 16A (Ex. PW3/A) and same was assigned to ASI Ajit Singh (PW8) who along with constable Ashok (PW13) left for the place of occurrence.
(i) It was alleged that on reaching the place of occurrence, accused Salman was found apprehended by public persons and it was revealed that two boys were fighting with each other and one of them was accused Salman and he had assaulted the another boy by the means of a broken electric tubelight at his neck, consequently bleeding started from his wound and he fell down on road. It was further revealed that PCR Van had already taken the injured to hospital. Since, it was revealed to ASI Ajit Singh (PW8) that PCR van had taken the injured to LHMC, PW8 left for the hospital after leaving constable Ashok (PW13) at the place of occurrence.
(ii) On reaching the hospital, ASI Ajit Singh (PW8) collected the MLC of one unknown injured whereupon doctor had declared the injured unfit for statement. Thereafter, PW8 returned to the place of occurrence and inspected the place of occurrence after summoning the crime team.
Thereafter, exhibits were lifted from the spot. It was further alleged that at that time Gulab Chand (PW2) met at the spot who claimed himself as an SC No. 29/12 Page 2 of 35 State Vs. Salman eyewitness of the incident and got recorded his statement (Ex.PW2/A) to the investigating officer. .
(iii) PW2 in his statement alleged that at about 2:45 P.M. he was present at his tea-shop and saw that two boys were fighting with each other and one of them was having tube-light in his hand. That boy had given a blow of tube-light at the neck of another boy, consequently, bleeding started from his wound and he fell down in front of factory No. 6AA. Thereafter, public persons apprehended the assailant, who disclosed his name as Salman. In the mean time, someone informed the police at 100 number, consequently, PCR van reached there and took the injured to the hospital. On his statement, PW8 made an endorsement (Ex. PW8/B) and sent PW13 to lodge an FIR. Thereafter, further investigation was assigned to Insp. Mahesh (PW17). It was alleged that during investigation, PW17 had seized the blood stained clothes of accused and also inserted Section 302 of Indian Panel Code as injured succumbed to his injuries. Dead body was got preserved for 72 hours for the purpose of identification. Despite best efforts, identity of deceased could not be ascertained. On March 24, 2012 inquest was conducted and dead body was sent for post-mortem. Exhibits were sent to FSL.
2. After completing investigation, challan was filed against the accused before the Court of learned Metropolitan Magistrate for the offence punishable under Section 302 of Indian Panel Code (IPC in short).
3. After complying with the provisions of Section 207 Code of Criminal Procedure, case was committed to the Court of Sessions on June 23, 2012. Thereafter, case was assigned to this Court on July 4, 2012. Accordingly, case was registered as Sessions Case No. 29/2012.
SC No. 29/12 Page 3 of 354. Vide order dated July 27, 2012, a charge for the offence punishable under Sections 302 of Indian Panel Code was framed against the accused to which accused pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 20 witnesses:-
PW1 Sh. Harish Kumar, foreman of factory, material witness PW2 Sh. Gulab Singh, eye witness PW3 HC Charan Singh, duty officer, proved DD No. 16A PW4 HC Wazir Singh, duty officer, proved the FIR and DD No. 23A PW5 HC Devi Dutt, In-charge PCR, took the injured to the hospital PW6 Constable Anuj, duty constable at LHMC PW7 Const. Satender, formal witness, delivered the exhibits at FSL, Rohini PW8 ASI Ajit Singh, first investigating officer PW9 Constable Ravi Dhaiya, PCR official, proved PCR Form-Part I PW10 Sarfaraz, made a call to police control room PW11 Constable Dinesh, photographer PW12 Dr. Mukta Rani, Assistant professor, proved the autopsy report PW13 Constable Ashok, joined the investigation with PW8 PW14 SI Pankaj, In-charge Crime Team SC No. 29/12 Page 4 of 35 State Vs. Salman PW15 HC Om Parkash, MHCM PW16 Insp. Mahesh Kumar, draughtsman, proved the scaled site plan PW17 Insp. Mahesh Kumar, investigating officer PW18 Dr. Yogesh Yadav, proved the MLC of injured PW20 Sh. Parshuram Singh, Asstt. Director (Physics), proved the FSL report PW20 Ms. Sunita Gupta, Sr. Scientific Officer (Biology), proved the FSL report
6. On culmination of prosecution evidence, accused was examined under Section 313 Code of Criminal Procedure wherein he denied all incriminating evidence led by the prosecution except that he was apprehended by public persons and handed over to the police. He also admitted that police had seized his T-shirt and pant but took the plea that at that time there was no blood stain on his pant. He submitted that he had been falsely implicated in this case as he was coming from the house of his father from Nehru Nagar and was going to Sarai Rohilla via Anand Parbat. While he was passing through gali No. 4, police apprehended him stating that they would leave him. Thereafter, police took him to the police station and then beaten him and falsely implicated him in this case. However, he refused to lead evidence in his defence.
7. Learned counsel appearing for the accused sagaciously contended that there is not only inordinate delay in lodging the FIR but there is also inordinate delay in sending the copy of FIR to the learned Illaqua Magistrate and no explanation has been put forth by the prosecution to explain the said delay. It was thus contended that the FIR had been lodged after due deliberation and consultation, which raises suspicion over SC No. 29/12 Page 5 of 35 State Vs. Salman the prosecution case.
(i) It was further contended that prosecution case is based on the testimony of PW1 and PW2 but no reliance can be placed on their deposition. It was submitted that PW1 in his testimony categorically deposed that accused and deceased were under the influence of liquor and due to that reason they were not permitted to work in the factory and they were asked to go away from the factory. But his testimony does not get any support from the medical evidence as there is nothing in the MLC of injured and accused to show that they were under the influence of liquor as alleged by PW1. It was further submitted that even PW1 has not supported the prosecution case by deposing that no incident had taken place in his presence.
(ii) It was further contended astutely that since there are material contradictions between the testimony of PW2 and prosecution case, no reliance can be placed on his deposition. It was further argued that as per the testimony of PW2 police had left the spot finally by 6:30 P.M whereas prosecution case is that PW8 had recorded the statement of PW2 at about 8:15 P.M and police party had conducted the investigation at the spot till 11:30 P.M. It was further contended that though PW2 deposed that he was present at the spot, when police official visited the spot first time, yet prosecution case is that PW2 was not present there and due to that reason his statement could not be recorded prior to 8:15 P.M. It was thus argued that PW2 was not present at the spot at the time of alleged incident and since PW2 is a poor person, police had planted him as an eyewitness to solve a blind murder case.
(iii) It was further contended perspicaciously that prosecution has SC No. 29/12 Page 6 of 35 State Vs. Salman set up a case that the injury was caused by an unbroken electric tube-light, but no such injury is possible by an unbroken tube-light. There is no concrete evidence on record to establish the prosecution case that any such injury could be caused by a single blow of unbroken electric tube-light. It was thus, argued that this further shows that PW2 is a planted witness.
(iv) It was further argued that in fact deceased was working in the factory of PW1 and he had sustained some injury in the factory which proved fatal and accused had been falsely implicated in this case to save owner of the factory.
8. Per contra, learned Additional Public Prosecutor appearing for the State refuted the said contentions by arguing astutely that there was no delay in registration of the FIR as PW2 met to PW8 when he returned from the hospital, thus it cannot be said that the FIR was lodged after due deliberation or consultation. However, he candidly admitted that there is some delay in sending the copy of FIR to Illaqua Magistrate but swiftly added that the said delay is not fatal to the prosecution case.
(i) It was further energetically contended that mere fact that PW 17 failed to conduct any investigation to the effect that accused and deceased were under the influence of liquor, is not sufficient to discard the testimony of PW1 who categorically deposed that accused and deceased were not permitted to work in the factory as they were under the influence of liquor. It was further contended that PW1 categorically deposed that when they left from the factory, they were quarrelling with each other.
(ii) It was further vigorously argued that PW2 is a reliable witness as he vividly described the incident and there is no reason to disbelieve his SC No. 29/12 Page 7 of 35 State Vs. Salman testimony. It was further contended that the contradictions pointed out by learned defence counsel are not fatal to the prosecution case in any manner. It was further submitted that if there was any default, it was on the part of police officials and their default can not become a reason to disbelieve the deposition of PW2.
(iii) It was further contended that from the testimony of PW2 it is established that accused had given a blow of electric tube-light on the neck of deceased and his testimony is fully corroborated by the testimony of PW12 Dr. Mukta Rani, Assistant Professor, thus there is no reason to disbelieve the prosecution case that injuries were inflicted by the electric tube-light.
(iv) It was further argued that there is no substance in the defence version that accused had sustained injury in the factory as accused has failed to adduce any evidence in support of his contention.
9. I have heard rival submissions advanced by learned counsel for both the parties at length, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to state that neither of the parties has cited any case law in support of his contentions.
Delay in sending the copy of FIR to Illaqua Magistrate:
10. First question emerges as to whether there was any delay in sending the copy of FIR to Illaqua Magistrate or not?
11. It is admitted case of prosecution that alleged incident had taken place on March 17, 2012 at about 2:45 P.M and the rukka was SC No. 29/12 Page 8 of 35 State Vs. Salman prepared at about 8:15 P.M and FIR was registered on 8:35 P.M. As per case set up by prosecution, statement of complainant Gulab Chand was recorded after returning from the hospital as Gulab Chand was not present when PW8 reached the spot first time. As per the testimony of PW8 he returned to the place of occurrence from the hospital at about 7:15 P.M. Thus, as per prosecution version, statement of PW2 Gulab Chand was recorded after 7:15 PM when PW8 returned from the hospital and thereafter rukka was prepared on his statement. If prosecution version is believed, no inordinate delay appears apparently in registration of the FIR. However, PW2 categorically deposed that when police reached the spot first time, he was present at the spot and police had not only made enquiry from him but also recorded his statement. According to PW2, police had left from the spot at about between 6 P.M to 6:30 P.M and thereafter, he never met with the police officials. It means that the statement of PW2 was recorded between 3:30 P.M to 6 P.M as PW8 in his cross-examination deposed that he reached the spot within 15 minutes after receiving DD No. 16A which was recorded in the police station at about 3:10 P.M. If PW2 was present at the spot when police visited the place of occurrence first time and ASI Ajit Singh (PW8) made enquiry from him and recorded his statement, it shows that there was some delay in registration of the FIR. But it is not the prosecution version. As per prosecution version, statement of PW2 was recorded after returning from the hospital. The issue as to whether the statement of PW2 was recorded after returning from the hospital as deposed by PW8 or prior to 6:30 P.M as deposed by PW2 shall be dealt with in detail while discussing the testimony of PW2.
12. Indisputably, as per prosecution version, FIR was registered on March 17, 2012 at 8:35 PM. Prosecution has also filed the copy of FIR having endorsement of learned Illaqua Magistrate and same is marked as SC No. 29/12 Page 9 of 35 State Vs. Salman Ex. PW4/A. Bare perusal of said FIR reveals that copy of FIR was received by learned Illaqua Magistrate on March 19, 2012 at about 10 A.M. Thus, it becomes clear that there is a delay of more than 37 hours in sending the copy of FIR to the learned Magistrate. During trial, prosecution has failed to furnish any explanation whatsoever about the said inordinate delay. Now question arises whether on the basis of said delay entire prosecution case can be disbelieved. This issue was dealt with by the Hon`ble Apex Court in case Bijoy Singh v/s State of Bihar, AIR 2002 SC 1949 and relevant para reads as under:-
Para 7. "Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157, Cr. P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it."
(emphasis supplied) SC No. 29/12 Page 10 of 35 State Vs. Salman
13. Since in the instant case prosecution has failed to furnish any explanation whatsoever about the said inordinate delay, in the light of above settled proposition of law, Court is required to examine the prosecution case minutely to ensure itself as to whether accused has been implicated in this case falsely or not? Thus, to my mind, mere fact that prosecution has failed to explain the said delay is not sufficient to discard the prosecution version outrightly.
What is prosecution case:-
14. As per evidence led by the prosecution, prosecution has set up following case against the accused:-
(i) that accused and deceased were working in the factory since March 16, 2012 on daily basis and they were not permited to work after lunch on March 17, 2012 as they were under the influence of liquor.
(ii) that when they left from the factory both were quarrelling with each other.
(iii) that while they were quarrelling with each other PW2 had seen them and at that time accused was having a tube-light in his hand.
(iv) that during quarrel, accused had given a blow of electric tube-light at the neck of deceased, consequently bleeding started from his wound and he fell down in front of factory No. 6AA.SC No. 29/12 Page 11 of 35
(v) that blood stains were found on the clothes of the accused.
(vi) that the piece of glass was found in the wound of deceased
15. From the above, first question arises as to whether accused and deceased were working in the factory or whether they were not permitted to work in the factory in post lunch session on March 17, 2012 as they were under the influence of liquor or not?
16. In this regard, the testimony of PW1 & PW17 are relevant.
17. PW1 in his examination-in-chief categorically deposed that on March 16, 2012, he had hired two labours from Sarai Rohilla Chowk and they worked in his factory on that day and payment was made to them in the evening. He identified the accused as one of the said labours. As per prosecution version, deceased was another labour. He further deposed that on March 17, 2012 he again hired both the said labours and he had given a sum of ` 100/- to them for lunch. He further deposed that after lunch when they joined the work, he noticed that they had consumed liquor, accordingly, he did not permit them to work in the factory. He paid them ` 175/- and asked them to go away and told them not to come again. Accordingly, both the boys went away from his factory. During his cross-examination conducted by learned Additional Public Prosecutor, he deposed that he stated to the police that when accused and deceased left from the factory, they were quarrelling with each other. Thus, from the testimony of PW1, it becomes clear that he did not permit the accused and deceased to work in the factory in post lunch session on March 17, 2012 as he noticed that they SC No. 29/12 Page 12 of 35 State Vs. Salman had consumed liquor.
(i) PW17 inspector Mahesh in his cross-examination admitted that in the MLC of deceased and accused it is nowhere mentioned that smell of alcohol was coming from their mouth. He also candidly admitted that even in the post mortem report of deceased, it is not mentioned that alcohol was found in his stomach. In order to cover the said lapse, PW17 had given a very strange explanation by stating that he presumed that doctor had not mentioned in the MLC of deceased inadvertently that no smell of alcohol was coming from his mouth. He further deposed that due to that reason he did not disbelieve the testimony of PW1 Harish. However, during his deposition, he failed to furnish any explanation on what basis he presumed that doctor had inadvertently failed to mention this important fact in the MLC of deceased. However, subsequently in his cross-examination, he admitted that there was default on his part in this regard. It is admitted case of the prosecution that the injured was taken to the hospital by the PCR official and even they did not depose that any smell of alcohol was coming from his mouth. It is admitted case of prosecution that PW17 had no occasion to see the injured personally as the investigation was assigned to him when Section 302 Indian Panel Code was added. If it was so, it means that he had no occasion to see the injured personally and to verify whether deceased had consumed any liquor or not or whether any smell of liquor was coming from his mouth or not. In these circumstances, the testimony of PW17 to the extent that he had presumed that doctor had inadvertently had not mentioned in the MLC that smell of liquor was coming from his mouth is baseless. Needless to say that by deposing so, he has made aspersion on the integrity of doctor who prepared the MLC. If he had any doubt, he should have contacted to the doctor immediately and sought clarification from him. Moreover, during investigation, he failed to collect SC No. 29/12 Page 13 of 35 State Vs. Salman any evidence to establish the fact that on March 17, 2012 either accused or deceased had consumed liquor or not. In the absence of any cogent evidence, it is seldom to believe the testimony of PW1 to the extent that deceased and accused were under the influence of liquor.
(ii) PW1 in his cross-examination clarified that accused and deceased came to the factory after taking lunch at about 1:35 P.M and within 5-7 minutes they left from his factory. He further deposed that he had hired them @ of ` 275/- for full day wages. Though suggestion was put to PW1 that accused did not come to his factory on March 17, 2012 but said suggestion was categorically denied. No other evidence was adduced by the accused to establish that he did not work in the factory on that day. Even during cross-examination, it was not disputed that deceased had not worked in the said factory on said dates. Even it was also not disputed in his cross-examination that accused and deceased had worked in the factory on March 16, 2012 also. In these circumstances, there is no reason to disbelieve the testimony of PW1 to the extent that accused and deceased had worked in the factory on March 16, 2012 and they had also worked in the factory on March 17, 2012.
Presence of PW2 at the spot:-
18. Next pivotal question arises as to whether PW2 was present at the spot when police reached the spot first time or not?
19. In this regard the testimony of PW2, PW5, PW8, PW11, PW13 and PW14 are relevant.
(i) PW2 in his examination-in-chief deposed that after the SC No. 29/12 Page 14 of 35 State Vs. Salman incident someone had made a call to the police at 100 number, consequently, police reached there and took the injured to the hospital. He also testified that local police also reached there and apprehended the accused and further deposed that police had recorded his statement Ex. PW2/A. In his cross-examination, he clarified that PCR van reached at the spot at about 3:15 PM and local police also reached there at about 3:30 P.M. He further deposed that police had made enquiry from number of persons and photographer also reached the spot between 3:30 P.M to 4:00 P. M and took photographs of the spot. He further deposed that police remained there till 6 P.M to 6:30 P.M and police officials finally left from the spot by 6 P.M to 6:30 P.M.
(ii) The testimony of PW2 is corroborated by PW5 HC Dev Dutt who took the injured to the hospital by deposing that PCR van reached the spot by 3:15 P.M. PW13 Constable Ashok also corroborated the testimony of PW2 by deposing that when they reached the spot, public persons were present there and they apprehended one person who disclosed his name as Salman i.e. accused and further deposed that one tea-vendor named Gulab Chand also met there and it was revealed that injured had taken to the hospital by PCR van. Thus, PW13 admitted that when they reached the spot, PW2 met them. PW14 SI Pankaj Kumar, In-charge of Crime Team also corroborated the testimony of PW2 by deposing that his team had inspected the place of occurrence between 4:30 P.M. to 5:30 P.M. He further deposed that after inspection, they left from the spot by 5:30 P.M. and thereafter, they never visited the place of occurrence. Thus, it becomes abundantly clear that PW2 Gulab was present when police officials including PW8 visited the place of occurrence first time.
(iii) On the contrary, PW8 in his examination-in-chief deposed SC No. 29/12 Page 15 of 35 State Vs. Salman that Gulab Chand met him first time when he returned from the hospital. In his cross-examination he categorically deposed that when he reached the spot first time, Gulab Chand was not present there and he met him first time when he returned from the hospital at about 7:15 P.M. To this extent even the testimony of PW8 is contrary to the testimony of PW13 who accompanied with him when he reached the spot first time. Moreover, the testimony of PW8 is also contrary to the deposition of PW14 because as per his version, Crime Team was summoned at the spot after returning from the hospital i.e. after 7:15 P.M. whereas PW14 categorically deposed that he had inspected the place of occurrence between 4:30 P.M to 5:30 P.M. His deposition also gets strength from his report Ex. PW14/A wherein time of inspection is mentioned as 4:30 P.M to 5:20 P.M. In these circumstances, the testimony of PW8 to the extent that PW2 Gulab Chand met him first time when he returned to the spot from hospital is false. Rather from the testimony of PW2 and facts and circumstances of the case, it becomes clear that PW8 SI Ajit Singh had recorded the statement of PW2 much prior to 6:30 P.M. Even the crime team had also inspected the place of occurrence by 5:20 P.M and they had left from the spot by 5:30 P.M. In these circumstances, it appears more plausible that PW8 had left from the spot by 6/6:30 P.M after recording the statement of PW2 and when he came to know that injured had succumbed to his injuries, he had prepared a rukka purported to be prepared at 8:15 P.M and got registered an FIR at about 8:35 PM. It is pertinent to highlight that injured had succumbed to his injuries at 8:30 P.M.
(iv) Even during cross-examination of PW2, no suggestion was put to him that he had not made any statement (Ex. PW2/A) to the police on March 17, 2012. No doubt, a suggestion was given to him that he had made a false statement at the instance of police but the same was SC No. 29/12 Page 16 of 35 State Vs. Salman categorically denied. In other words even it is not disputed during his cross-examination that PW2 had given his statement Ex. PW2/A to the police on March 17, 2012 between 3:30 P.M to 6 P.M.
(v) Further from the testimony of PW2, it is established that the incident had taken place in front of his shop and the entire incident was visible from his shop and even this fact is also established from the site plan Ex. PW2/E and the photograph Ex. PW2/11. Thus, it cannot be said that PW2 was not in a position to see the occurrence.
19. In view of the foregoing discussion, I do not find any substance in the contention of learned defence counsel that PW2 is a planted witness.
Is there any inconsistency between the medical and ocular evidence:-
20. Next polar question comes forth as to whether there is any inconsistency between the ocular and medical evidence?
21. Learned counsel appearing for the accused vigorously contended that since there is inconsistency between the prosecution version and medical evidence, no reliance can be placed on the prosecution version. It was submitted that as per prosecution version, injury was inflicted by giving the blow of unbroken tube-light whereas as per medical evidence no such injury is possible by unbroken tube-alight.
22. Perusal of the charge-sheet reveals that when police reached the spot first time, public persons informed the police that the injury was inflicted by giving the blow of a broken tube-light, thus it cannot SC No. 29/12 Page 17 of 35 State Vs. Salman be said that prosecution had set up a case that injury was caused by unbroken tube-light.
(i) PW2 is the sole eye witness. In his examination-in-chief he deposed that when he witnessed the incident, he saw that accused was having an electric tube-light in his hand and he had given a blow of electric tube- light at the neck of deceased. In his examination-in-chief, he did not state whether the tube-light was broken or unbroken. Though, PW2 was cross-examined at length, yet during cross-examination no effort was made to seek clarification whether it was a broken or unbroken tube-light. In the absence of any cogent evidence, it will not be appropriate to draw an inference that when PW2 deposed that injury was caused by giving a blow tube-light, he meant to say that it was caused by giving the blow of unbroken tube-light. Moreover, during the cross-examination of PW2 defence has not even disputed the fact that injury was not inflicted by giving the blow of tube-light as a suggestion was given to PW2 that a quarrel had taken place between him i.e. PW2 and deceased as deceased refused to give money for the tea and upon this PW2 had given a blow of electric tube-light to the deceased. Certainly the said suggestion was denied by the PW2. But by putting this suggestion, it becomes clear that accused did not dispute that injury was not caused by giving the blow of electric tube- light.
(ii) Now coming to the testimony of PW12 Dr. Mukta Rani. She in her examination-in-chief categorically deposed that injury No. 1 could be caused by broken electric tube-light. When a specific question was put to her whether injury No. 1 could be possible if someone assaulted by unbroken tube light, she deposed that injury is possible, if tube-light is broken on impact. Thus, she never said that the injury is possible by giving SC No. 29/12 Page 18 of 35 State Vs. Salman the blow of unbroken tube-light. No doubt, PW12 in her cross-examination averted a question by stating that she can not say whether shape of tube- light in circular form would appear if injury be caused by stabbing a broken tube light. To my mind, the said testimony of PW12 is not fatal to the prosecution case in any manner as it is not the prosecution case that accused had stabbed broken tube-light in the neck of deceased. Rather prosecution case is that he had given a blow of tube-light, it means that deceased must have sustained incised wound and not stabbed wound. From the post-mortem report it is limpid that deceased had sustained only incised wound 9cm X 4cm X 6cm over right side lower part of neck and it was caused by sharp object. No doubt in her cross-examination, PW12 admitted that lacerated and incised wound are two kinds of wound and in the MLC of deceased it was recited that first injury was lacerated wound and it was caused by blunt object. She also admitted that she did not consult the doctor who prepared the MLC before giving finding on the cause of death. Indisputably, initially injury was examined by PW18 in the Emergency Ward vide MLC Ex. PW18/A and in the MLC it was recited that it was a lacerated wound and it was caused by blunt object. Admittedly, at the time of recording the observation in MLC, PW18 had only examined him cursory and thereafter, he referred him to Surgery department. Thus, the possibility that he had not examined the patient minutely cannot be ruled out. Whereas during the post-mortem, all injuries were examined minutely. Moreover, from the testimony of PW2, it is established that the injury was caused by giving the blow of electric tube-light, thus there was no reason to cause injury by blunt object. In these circumstances, I am of the view that the observation of PW18 that deceased had sustained lacerated wound and it was caused by blunt object is not fatal to the prosecution case in any manner. Though, PW12 in her examination-in-chief deposed that a piece of glass having size 2.5 cm X 1.5 cm was found SC No. 29/12 Page 19 of 35 State Vs. Salman lodged inside the wound but in her report Ex. PW12/A, she did not mention that she had seized the said piece of glass. As per report Ex. PW12/A, she had seized only underwear, one black thread around waist, one metallic white stone ring, blood on gauze piece and sternum for DNA profile. But in the seizure memo Ex. PW13/A, it is recited that after post-mortem, doctor had also handed over one plastic container containing glass piece of tube light duly sealed with the seal of LHMC FMT. From the FSL report Ex. PW20/A, it is clear that the said container was also sent to the FSL and the same was found sealing with the seal of FMT LHMC and the said container was given Ex. 8 during examination. On examination, blood was found on the said piece of glass and as per the report Ex. PW20/B, it was human blood. No doubt, there is a lapse on the part of PW12 as she failed to mention in the post-mortem report that the said piece of glass was also given to the police. But to my mind, it is an inadvertent error on the part of PW12 as the same was handed over to the police and this fact is mentioned in the memo Ex. PW13/B and the same was also examined in the FSL. Thus, in my opinion the said lapse on the part of PW12 is not fatal to the prosecution case.
(iii) No doubt, there is also lapse on the part of investigating officer as he failed to seek opinion from the FSL whether the said recovered piece of glass tallied with the remaining piece of glasses of tube-light found from the spot. Had the opinion been sought on this point, prosecution would be in a better position to establish that the piece of glass recovered from the wound belonged to the same tube-light. Instead of seeking opinion on the above point, investigating officer preferred only to seek opinion whether recovered piece of glass found containing the blood of deceased or not. To my mind, the prosecution has not only to establish that the recovered piece of glass had blood stains of deceased but also to establish SC No. 29/12 Page 20 of 35 State Vs. Salman that the recovered piece of glass was also of the same tube-light. Thus investigating officer should have also sought opinion in this regard from the FSL. But unfortunately, he did not pray for any such opinion. But in the instant case, the said lapse on the part of investigating officer is not fatal to the prosecution case in any manner as during the cross-examination of PW2, accused did not dispute that the injury was caused by giving the blow of tube-light. Rather he took the plea that the said blow was given by PW2 and not by him.
Whether PW1 had given a sum of` 175/- to the deceased or not:-
23. Prosecution has set up a case that when PW1 had noticed that accused and deceased were under the influence of liquor, he did not permit them to work in the factory and gave ` 175/- to them and asked them to leave the factory with direction not to come again. During investigation, a sum of ` 8/-was recovered from the search of deceased, which was seized vide Ex. PW8/A. Similarly, as per the personal search memo Ex. PW13/A nothing was recovered from the accused. It means that the amount of ` 175/- which was allegedly given by PW1 to them was not recovered either from the deceased or the accused. Apparently, the said discrepancy appears to be unworthy for discussion. But is not so. As prosecution has set up a case that accused and victim were quarrelling with each other while they left from the factory and immediately thereafter, accused had assaulted the deceased. If it was so, it means that neither the accused nor the victim had any opportunity to spend the said amount. No doubt, PW1 in his deposition did not support the prosecution case by deposing that the alleged incident had not taken place in his presence and he came to know about 30-40 minutes at about 3 P.M that they had quarrelled with each other and accused had given a blow of tube- light to SC No. 29/12 Page 21 of 35 State Vs. Salman the deceased. Similarly, he also deposed that he had stated to the police that when they left from the factory they were quarrelling with each other. As per the deposition of PW1 they left from the factory by 1:45 P.M. Since, PW2 deposed that the alleged incident had taken place at about 2:45 P.M. It means that the alleged incident had not taken place immediately when they came out from the factory. Rather they had gone somewhere. Thus, they had sufficient time to spend the said amount. If they had spent the said amount together, it means that they were not quarrelling with each other while they left from the factory. In these circumstances, the testimony of PW1 to that extent does not inspire any confidence.
(i) From the testimony of PW1, it can be culled out safely that they left from the factory by 1:45 P.M. As per the testimony of PW2, the alleged incident had taken place at about 2:45 P.M. It means that they had approximately one hour to spend the said amount and this fact is also corroborated from the testimony of PW2 who deposed that the quarrel between them was going on on the point of some money dispute and accused was demanding his money from the deceased. Unfortunately, no investigation had been conducted by the investigating officer where they had gone from the factory. Since, the said amount was not recovered either from the accused or from the deceased, it shows that deceased had spent the said amount and on the said amount a quarrel had taken place between them. In these circumstances, the said lapse is not fatal to the prosecution case.
Whether non-investigation on the first PCR call Ex. PW17/DA is fatal to the prosecution case:-
23. Learned counsel appearing for the accused vigorously SC No. 29/12 Page 22 of 35 State Vs. Salman contended that police control room had received a call from mobile no.
9971668628 at about 15:04:34 hours that one person had sustained injury while working in the factory at gali no. 4, Industrial Aria, Anand Parbat. Said information was recorded by the police control room in PCR form Ex. PW17/DA.
(i) Indisputably, no investigation was contended by the investigating officer on the said call. Even no attempt was made to interrogate the person who gave the said call to the police. Admittedly, the reason furnished by PW17 for not doing so is not convincing as he deposed that he had not conducted any investigation because the said call was never assigned to him. Admittedly, PW17 was investigating a murder case and since he had himself collected the PCR form Ex. PW17/DA, it was his duty to interrogate the caller to verify on what basis he had given the said information to the police control room. But he failed to do so and the reason furnished by him are totally absurd.
24. But question arises as to whether the said lapse on the part of investigating officer is fatal to the prosecution case or not?
(i) To my mind, the answer is in negative as during cross- examination of PW1, a suggestion was given to the witness that accused did not work in his factory on March 17, 2012. Even no suggestion was given to him that deceased had sustained any injury while working in his factory. Even no evidence was led in this regard. In the absence of any evidence on record, it cannot be said that the deceased had sustained injury while working in the factory particularly when PW2 categorically deposed that he had witnessed the incident and there is no reason to disbelieve his testimony and his testimony to the extent that injury was SC No. 29/12 Page 23 of 35 State Vs. Salman caused by the tube-light is fully corroborated by the medical evidence.
Lapses during the investigation:-
25. Indisputably, there is lapse on the part of PW6 const. Anuj as he failed to intimate the local police when PCR van OSCAR 56 brought the injured to the hospital. The testimony of PW6 that he got lodged DD No. 16A is contrary to the record as the said DD was received in the police station at 3.10 PM whereas OSCAR 56 reached the hospital at 3.45 PM. In order to cover up his lapse, he deposed that when he made a call to local police, duty officer informed him that he had already received the DD No. 16A in this regard. Needless to say, it is the paramount duty of duty officer to record each and every information received in the police station, thus if duty officer refused to record the said information, it means that there is a default on the part of duty officer but since there is nothing on record which may suggest that duty officer had refused to record the information, the reason furnished by PW6 does not inspire any confidence.
26. As already stated that injured had succumbed to his injuries at 8.30 PM but PW6 informed the local police at about 12.10 AM. Again the explanation furnished by him that doctor informed him about the death of injured only at about 11.30 PM is not convincing as in his register he did not record that doctor informed him at 11.30 PM that injured had died at 8.30 PM. Rather it is recited in the register that injured had died at 11.30 PM. There is nothing in the register which may suggest that the injured had died at 8.30 PM and doctor had given the intimation of his death only at 11.30 PM. Further, the intimation was given to the local police only at 12.10 AM. It means that even after receiving the intimation of death of injured, PW6 took about 40 minutes to convey the same to the local police. Such type of laxity SC No. 29/12 Page 24 of 35 State Vs. Salman is not expected from the police official in such a heinous crime.
27. PW17 made a futile attempt to establish that the crime team had also visited the place of occurrence after 8.45 PM when he reached the spot and all exhibits were seized in the presence of crime team. Similarly, PW8 made an attempt to establish that crime team had visited the spot after 7:15 PM. Whereas there are overwhelming evidence on record as already discussed to prove that crime team had inspected the place of occurrence between 4.30 PM to 5:20 PM and thereafter, they left the spot finally by 5:30 PM. Such type of manipulations are not healthy for the administration of criminal justice, rather such instances erodes the credibility of investigating agency.
28. There is also lapse on the part of PW14 SI Pankaj as he deposed that there was a piece of tube-light having the length of 6 inch. Though he deposed that the same is visible in the photograph Ex.PW2/12 but it is not so. Even, no such piece was seized by the IO nor produced in the Court. It is pertinent to point out that only tiny pieces were produced in the Court.
29. As already discussed, there is also lapse on the part of PW17 as he failed to explain the delay in sending the copy of FIR to learned Illaqua Magistrate. He also failed to conduct any investigation qua Ex.PW17/DA. He also failed to explain how he prepared the site plan at 10.00 PM at the pointing out of PW2 when he was not present at that time as he categorically deposed that police had left the spot finally at 6.30 PM and his testimony appears more plausible and believable in the facts and circumstances of the case. Further, he also failed to collect evidence whether accused and victim had consumed liquor or they were under the SC No. 29/12 Page 25 of 35 State Vs. Salman influence of liquor and reason furnished by him for not placing reliance on the MLC is unconvincing and unreliable.
30. However, learned defence counsel failed to convince the Court how the said lapses are fatal to the prosecution case. As already discussed that most of the lapses are not fatal to the prosecution case in any manner.
Whether accused can be held liable for the charges of murder :-
31. PW2 is the star witness of the prosecution. He categorically deposed that he had witnessed the incident. As already discussed, there is no reason to disbelieve his presence at the spot. Admittedly, the alleged incident had taken place near his shop, thus PW2 was in the position to witness the incident. Moreover, during his cross-examination nothing came out which may cause any doubt over his presence at the spot. On the contrary, it is established that he was present at the spot and he vividly described the incident.
32. He categorically deposed that at about 2.45 PM, he saw that two persons were quarrelling with each other and after hearing noise, he came out from his shop and saw that quarrel was going between accused and deceased on the point of some money dispute. Both have caught hold to each other by collar and accused was demanding his money from the deceased. He further deposed that accused was having a tube-light in his hand. He further deposed that they were coming from North side and going towards the South direction and he saw them first time when they reached at the crossing of Gali No. 4D and 4P and at that time the distance between his shop and them was only 15 feet to 18 feet. It means that he was SC No. 29/12 Page 26 of 35 State Vs. Salman otherwise in a position to see the said incident. PW2 categorically deposed in his testimony that accused was having a tube-light in his hand and he had given a blow of tube-light on the neck of another person, consequently bleeding started from his neck and he fell down in front of his shop i.e. out side Factory No. 6AA. During investigation, police had also seized the clothes of the accused vide memo Ex. PW2/D. As per the said memo, sweat T-shirt full sleeves and jeans pant were seized by the investigating officer as the same were having blood stains mark. During his examination, accused admitted that police has seized his T-shirt and pant but took the plea that at that time, there was no blood stains on his clothes. However, he failed to adduce any evidence in this regard. In the absence of any evidence on record, I do not find any substance in his plea. During investigation, the said clothes were also sent to FSL for analysis and the same were given exhibits as Ex.5a and Ex.5b. As per the report Ex. PW20/A, blood was detected on the said clothes and as per the serological report Ex. PW20/B it was human blood of Group B. Indisputably, the blood of deceased was also of group 'B'. During trial, accused failed to adduce any explanation about the said blood, this further strengthen the prosecution case that it is the accused who had inflicted injuries to the accused. Further, from the testimony of PW12, it is established that the injury No. 1 was sufficient to cause death in ordinary course of nature and cause of death was haemorrhage and shock consequent upon cut throat injury via injury No.1. Since, the injury No. 1 was sufficient in ordinary course of nature to cause death, accused is liable for murder under Clause (3) to Section 300 of IPC.
33. Now question arises as to whether the present case falls within Exception 4 to Section 300 IPC or not?
SC No. 29/12 Page 27 of 3534. In case Surinder Kumar Vs. Union Territory, Chandigarh, AIR1989SC1094, Hon`ble Apex Court laid down the principles relating to Exception 4 to Section 300 IPC and same are as under:-
Exception 4 to Section 300 reads as under:
Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner:
Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault.
7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight ; (ii) there was no premeditation ; (iii) the act was done in a heat of passion ; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.
(emphasis supplied)
35. Same view was followed by the Apex Court in Ajit Singh v/s. State of Punjab JT2011(10)SC177.
36. In the light of the above settled proposition of law, facts of the case in hand will be analysed to ascertain as to whether case falls within SC No. 29/12 Page 28 of 35 State Vs. Salman the Exception 4 or not.
37. It is admitted case of the prosecution that deceased had sustained only one following injury:
"Incised wound 9 X4 X 6cm over right side lower part of neck irregularly placed from below 0.5 cm to mid of chin and 1 cm to right of mid line. The wound is cutting through the skin, subcutaneous tissues, muscles and internal and external jugular veins on right side. A piece of glass of size 2.5 X 1 cm was found lodged inside the wound."
38. Thus, it can safely be culled out that accused had not taken any undue advantage or acted in a quarrel manner as he did not give any other blow to the deceased despite the fact that he had opportunity to do so as after sustaining above injury, injured had fallen down on the road. But accused did not take any undue advantage of his position.
39. It is also admitted case of prosecution that accused and deceased both worked in the factory on March 16, 2012 as well as on March 17, 2012 on daily wages. As per the deposition of PW1, they left for lunch together on March 17, 2012 and he did not permit them to work in post lunch session in the factory as smell of alcohol was coming from their mouth, consequently he had given the balance amount of ` 175/- to them and asked them to go away from the factory. Accordingly, they left from his factory. From the testimony of PW2, it becomes clear that when he saw both of them at about 2:45 P.M, they were quarrelling with each other on the point of some money dispute as accused was demanding his money from the deceased. Thus, it becomes clear that accused was quarrelling with the deceased on the point of money. Admittedly, PW2 deposed that SC No. 29/12 Page 29 of 35 State Vs. Salman when he saw them at 2:45 P.M, accused was having a tube-light in his hand. Admittedly, accused did not have tube-light when he left from the factory at about 1:50 P.M. From the facts and circumstances of the case, it can safely be culled out that accused had lifted the said tube-light either at the time of quarrelling or just prior to that. PW2 also deposed that accused was demanding his money from the deceased. As already discussed that the amount of ` 175/- which was given by PW1 was neither recovered from the accused nor from the deceased. Thus, in the given facts and circumstances, it appears more plausible that accused was demanding from the said amount but it appears that deceased had already spent the said amount. From the testimony of PW2, it becomes clear that accused had not committed the offence with any premeditation and he had given the blow of electric tube-light in a sudden fight which had taken place on account of money dispute between them. It also becomes clear that accused had given a blow of electric tube-light in a heat of passion when deceased failed to refund the amount to the accused. As already discussed that accused had not taken any undue advantage of his position nor he acted in a cruel or unusual manner either before giving the blow or subsequent thereto.
40. In view of the aforesaid discussion, I am of the considered opinion that present case squarely falls within the Exception 4 to Section 300 IPC, thus accused is liable for the offence punishable under Section 304 (Part-I) of Indian Panel Code.
41. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to prove the guilt of accused beyond the shadow of all reasonable doubts for the offence punishable under Section 304 (Part-I) of Indian Panel Code, thus, I hereby SC No. 29/12 Page 30 of 35 State Vs. Salman hold the accused Salman guilty thereunder.
42. Considering the numerous lapses found in the investigation, copy of judgment be sent to Commissioner of Police to enable him to take action against the erring police officials as he deems fit. Further, since there was unexplained delay of approximately 37 hours in sending the copy of FIR to the learned Illaqua Magistrate and such instances are being observed in numerous other cases, Commissioner of Police is also directed to fix the responsibility for the said unexplained delay and take appropriate action against the erring official under intimation to this Court.
Announced in the open Court on this 15th day of February, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 TIS HAZARI COURTS, DELHI/sv SC No. 29/12 Page 31 of 35 State Vs. Salman IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 29 of 2012 ID No. : 02401R0283692012 FIR No. : 25/2012 Police Station : Anand Parbat Under Section : 302 IPC State Versus SALMAN S/o Mushtaq R/o Village Chittar Koni, Dildar Nagar, Distt. Gazipur, U. P. .........Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Dinesh Sharma, Advocate, Amicus Curiae for the Convict ORDER ON THE POINT OF SENTENCE:-
1. Vide separate judgement dated February 15, 2014 accused had been held guilty for the offence punishable under Section 304 Part-I of Indian Penal Code.SC No. 29/12 Page 32 of 35
2. Learned counsel appearing for the convict requests for a lenient view on the grounds that convict is a young boy of 24 years having no criminal antecedents. Though accused was charge-sheeted for the offence punishable under Section 302 of Penal Code, yet prosecution has failed to bring home the guilt of accused for the charges of murder. It is submitted that accused is held guilty only for the offence punishable under Section under 304 Part-I of Penal Code. It is further submitted that it has already been held that convict had given a blow of broken tube-light in sudden fight and he had no intention to cause the death of deceased.
3. Per contra, learned Additional Public Prosecutor submits that no doubt accused has been held guilty only for the offence punishable under Section 304 Part-I of Penal Code but prosecution has also succeeded to establish that accused had intention to cause bodily injury, thus convict does not deserve any leniency and requests to award maximum punishment i.e. life imprisonment as provided under Section 304 Part-I of Penal Code.
4. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. Admittedly, accused was prosecuted for the charges of murder punishable under Section 302 of Penal Code but prosecution failed to prove the said charges, however prosecution has succeeded to prove the charges for the offence punishable under Section 304 Part-I of Penal Code. During trial, it is also established that convict had no intention to murder the deceased and fight had taken place between them all of sudden SC No. 29/12 Page 33 of 35 State Vs. Salman on some money dispute. During the said quarrel, convict had given a blow of broken tube-light at the neck of deceased, which proved fatal. It has also been proved that convict had not taken any undue advantage of his position or acted in a cruel manner. It is also undisputed fact that both i.e. convict and deceased belonged to low strata of society and they were working in the factory of PW1 on daily wages since March 16, 2012, which also establishes that there was no previous enmity between them. No doubt, convict had given a blow of broken tube-light at the neck of deceased, which proved fatal, but it is also true that convict did not misuse his dominant position as he did not give any further blow when deceased fell down on the ground. This is one of the major mitigating factors in favour of the convict. Further, indisputably convict is a young boy of aged 24 years and having no criminal antecedents. Considering his young age and clean antecedents, it can not be said that there is no chance of reformation. Even there is nothing on record, which may suggest that his conduct in prison was not upto the mark.
6. In the light of aforesaid discussion, I am of the considered opinion that it is not a fit case to award maximum sentence as provided under Section 304 Part-I of Penal Code, rather I am of the view that convict deserves a lenient view to enable him to reform himself.
7. Accordingly, I hereby sentence the convict Salman rigorous imprisonment for eight years and a fine of ` 10,000/- in default further simple imprisonment for a period of six months for the offence punishable under Section 304 Part-I of Indian Penal Code. Benefit of Section 428 of Code of Criminal Procedure be also given to him.
SC No. 29/12 Page 34 of 358. Copy of judgment along with order on the point of sentence, copy of all evidences and charge be also given to the convict free of cost.
Announced in the open Court on this 21st day of February, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 TIS HAZARI COURTS, DELHI/sv SC No. 29/12 Page 35 of 35