Delhi District Court
State vs . Laxmi Prashad Fir 397/14 (57298/16) on 24 August, 2018
State Vs. Laxmi Prashad FIR 397/14 (57298/16)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 57298/16
FIR No. 397/14
PS Vikas Puri
U/s 302 IPC
STATE
VERSUS
LAXMI PRASAD
S/O SH.PATTU
R/O JHGGI NO. 415, NEAR LAVATORY,
INDIRA CAMP NO.5, E BLOCK,
VIKAS PURI, NEW DELHI.
Date of Institution : 19.09.2014
Date of Reserving Judgment : 20.08.2018
Date of Judgment : 24.08.2018
Offence Complained of : U/s 302 IPC
Result: Acquitted Page 1 of 58
State Vs. Laxmi Prashad FIR 397/14 (57298/16)
Offence Charged with : U/s 302 IPC
JUDGMENT
1.Accused Laxmi Prasad has been facing trial for committing the offence Punishable U/s 302 IPC.
PROSECUTION'S CASE :
2. The Prosecution's case commenced upon receipt of DD no.9A on 05.06.2014 by ASI Rajbir Singh. He alongwith Ct.Satbir, went to Indira Camp No.5, E Block, Vikas Puri, New Delhi, where they came to know that the injured had been taken to DDU hospital by PCR officials. Thereafter, ASI Rajbir Singh and Ct.Satbir went to DDU hospital where the doctor had declared the injured Ghanty @ Suresh S/o Sh.Ladu Ram 'brought dead' vide MLC no. 5748/14. No eye witness met in the hospital. They came back to the spot where Insp.Mahesh Kumar met them alongwith the complainant Smt.Pinki Result: Acquitted Page 2 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) W/o late Sh.Munna. IO recorded her statement wherein she stated that she had been residing with her brother Suresh @ Ghanty & mother.
On 05.06.2014, at about 04:30 AM, her brother Ghanty came to the house while running and informed that he went to answer the call of nature on the road in front of Lok Vihar Apartment, where accused Laxmi, who is residing in the same Colony was already present, had quarreled with him. He had given injuries on his stomach with a sharp object. His brother Ghanty also stated to her that this accused Laxmi had earlier also quarreled with him. Thereafter, Suresh @ Ghanty became unconscious. This witness informed about the incident to one boy namely Anshul who was residing in her neighbourhood, who reached her house and informed the Police, at number 100. PCR Van reached and took the injured to hospital. Anshul had also reached the hospital alongwith the injured. Thereafter, he informed on telephone to her mother that the doctor had declared the injured 'brought dead'. This witness further stated that prior to one month of this incident, accused had quarrel with her Result: Acquitted Page 3 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) brother Suresh @ Ghanty but they had not informed the police, it being a personal matter. Since then the accused had enmity with her brother and quarreled several times prior to the incident.
3. IO prepared rukka and sent Ct.Satbir for getting registration of the present FIR U/s 302 IPC. Site Plan was prepared by the IO at the instance of complainant. He got the Postmortem conducted on the deadbody of deceased. After conducting Postmortem, the deadbody was handedover to relatives. Exhibits were handedover by the doctor to the IO.
4.During investigation, at the pointing out of Naresh Kumar, brother of deceased, accused Laxmi Pd. was arrested from near Galaxy Apartment Market vide Arrest Memo. His personal search was also conducted. The accused got recorded his disclosure statement wherein he disclosed about the present incident. Pointing out memo of the place of incident was prepared at the instance of accused. Thereafter, accused got recovered one Screw driver (पपचकस) from the bushes of Khatta Lok Vihar Apartment which was having blood Result: Acquitted Page 4 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) stains. Sketch was prepared. The same was sealed with the seal of MK.
5. The doctor had opined the cause of death as due to complications (shock and intestinal perforation) of the injury over the abdomen. The doctor had also given the opinion regarding alleged weapon of offence that the injuries on deceased Suresh @ Ghanty can be caused by the above described alleged weapon of offence. Exhibits were sent to FSL, Rohini. Statements of witnesses U/s 161 Cr.P.C. were recorded. After completion of investigation, the Chargesheet was filed and the present case was committed to the Sessions Court. CHARGE :
6. On 20.10.2014, Charge has been framed against accused for the offence U/s 302 IPC, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
7. To prove its case, Prosecution has cited 19 witnesses out of whom Result: Acquitted Page 5 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) 17 witnesses have been examined before the Court.
8. On 14.07.2017, Ld.Prosecutor dropped the witness no.7/Ct.Satbir as PW16/SI Rajbir Singh had been examined on the same facts.
9. The Table as below shall broadly indicate the name of the witness, his/her role as per prosecution and short gist of their testimonies/documents proved through them.
S.No. Name of Evidence
Witness/Natu
re
PW Ms.Pinki She has supported the case of the Prosecution.
1 (Complaina She deposed all the facts as stated by her in her
nt/sister of statement to the Police U/s 161 Cr.P.C. She
deceased) has proved her statement Ex.PW1/A and
identified her signatures at Point A.
She deposed that on 05.06.2014 at about
04:00 AM, her brother Suresh went to ease himself at the drain near Lok Vihar Apartment.
Result: Acquitted Page 6 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16) At about 04:30 AM, his brother came to the house and told her as well as her mother that accused Laxmi Pd. had hit him with some pointed object. Her brother did not disclose from which side accused Laxmi Pd. came.
Thereafter, they called their neighbourer Anshul and he came to their house and in his presence also, her brother told that Laxmi Pd. had given him injury.
Deceased had further told that Laxmi Pd.
had also given him injuries prior to this incident.
Thereafter, Anshul called the police at number 100, who came at the spot and recorded his statement. Anshul took her brother Suresh to DDU hospital. From the hospital, Anshul made a Phone call to one of their neighbour intimating that Suresh has expired. She further deposed that when her brother Suresh came to the house, he was having injury on the right side of his abdomen.
Result: Acquitted Page 7 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16) On the point of identification of accused Laxmi Pd., this witness deposed that she did not know the accused prior to the incident and she came to know about him after her brother disclosed about him to her.
PW Smt.Sundar This witness also supported the case of 2 i (mother of Prosecution and deposed the same facts as deceased) deposed by PW1. Furthermore, she has identified the accused before the Court. She further deposed that earlier she had not lodged any complaint before the police regarding the quarrel and beatings given to her son Suresh @ Ghanti by the accused Laxmi as they were residing in the same locality.
PW Sanjay On 05.06.2014, he was called by Insp.Mahesh 3 Kumar(Pho of PS Vikas Puri to take Photographs of tographer) Postmortem examination process at Mortuary, DDU hospital. He took Photographs of Postmortem examination being conducted there from his digital camera. He got developed the photographs from the lab and handedover 27 Photographs to Insp.Mahesh. He identified the photographs Ex.PW3/A.1 to Ex.PW3/A.27.
Result: Acquitted Page 8 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16) PW Dr.Komal This witness has deposed that on 05.06.2014, he 4 Singh conducted the Postmortem examination on the deadbody of deceased and prepared P.M.Report Ex.PW4/A. He also examined the weapon of offence and Postmortem report and found that the injury no.1 could be caused by the weapon under examination. He proved his opinion as Ex.PW4/B. PW Dr.Naorem On 05.06.2014, at 05:50 AM, injured Ghanti 5 Bobo Singh was brought in the hospital in unresponsive state (SR) by ASI Satya Narayan, PCR. He examined the Casulaty, injured and found him unresponsive and was DDU declared brought dead. He proved the MLC of hospital Ghanti as Ex.PW5/A. PW HC This witness has proved the computer generated 6 Dharmendr copy of FIR as Ex.PW6/D, his endorsement on a Kumar rukka as Ex.PW6/A, Register containing DD (Duty no.14A as Ex.PW6/B and True copy of DD officer) no.14A as Ex.PW6/C. Result: Acquitted Page 9 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) PW7 Ct.Gurdawar This witness had delivered the copy of FIR of this case at the resident of Area MM and Senior Police Officers on 05.06.2014.
PW8 ASI Sanjay On 05.06.2014, at about 05:08 AM, a call Toppo was transmitted to this witness from Police (Computer Control Room Channel who further operator) transmitted the said call on the PCR Van Power 58 at 05:10 AM, which was regarding quarrel at Indira Camp No.5, Vikas Puri. This witness has proved the PCR form no.1 as Ex.PW8/A and Certificate U/s 65B of the Indian Evidence Act as Ex.PW8/B. PW9 ASI Om This witness had prepared the scaled Site Prakash Plan of the spot as Ex.PW9/A and (Assistant handedover the same to the IO on Draughtsman 11.08.2014.
Result: Acquitted Page 10 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16) PW10 Naresh This witness has identified the deadbody of Kumar(brothe deceased vide his Statement Ex.PW10/A r of deceased) and receipt Ex.PW10/B. He has also proved the Arrest memo of accused Laxmi Pd. as Ex.PW10/C and seizure memo of Screw driver as Ex.PW10/D. Further, he has identified the Screw Driver in the Court as Ex.PW10/1.
This witness was crossexamined by the Ld.Addl.P.P. wherein he has identified his signatures at Point A on the Seizure memo of Screw Driver Ex.PW10/D. He deposed that he did not know if police had prepared sketch and Seizure memo of Screw driver Ex.PW10/1. He denied the suggestion that he is deliberately evading reply to the question regarding seizure of screw driver and preparation of Seizure memo.
The attention of the witness was also drawn towards statement U/s 161 Cr.P.C.
Ex.PW10/E from Portion X to X1 and he denied that he stated to the police regarding the fact of sealing and seizing of screw driver.
Result: Acquitted Page 11 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16) PW11 Ms.Anita This witness has proved Biological Chhari, SSO Examination Report of case exhibits as (Biology) Ex.PW11/A and Serological Report as FSL, Rohini. Ex.PW11/B and also identified her signatures at Point A. She has deposed that on Biological examination, blood was detected on exhibits (1) Screw driver, 2(a) Banyan, 2(b) Under wear, (3) Blood sample and (4) Blood in gauze.
On Serologically examination, blood group "B" was detected on all the exhibits except exhibit 1 Screw Driver & exhibit 3 Blood sample.
PW12 ASI On 04.06.2014 at about 05:11 AM, on Satyanarayan receiving call from control room regarding quarrel at Indira Camp No.5, Vikas Puri, this witness alongwith PCR officials reached the spot where the injured Ghanti @ Ganje was found in injured condition having injuries on his belly. The injured was taken to DDU hospital by him and Anshul where he was declared as dead.
Result: Acquitted Page 12 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16) PW13 Ct.Madan On 07.08.2014, on the direction of Lal IO/Insp.Mahesh, he had taken one Parcel stated to be containing weapon of offence from MHC(M) vide RC No. 41/21/14 and handedover the same to Dr.Komal Singh, DDU hospital and thereafter, he handedover the copy of RC to the MHC(M).
On 12.08.2014, he again obtained four Sample seal vide RC no. 42/21/14 and deposited the same in intact condition at FSL, Rohini under receipt. He handedover the copy of RC to MHC(M) on that very day.
PW14 HC Lahari On 05.06.2014, Insp.Mahesh Kumar had Ram deposited with him four Parcels and sample MHC(M) seal duly sealed with the seal of DFMT DDU hospital. One Parcel was sealed with the seal of MK. Personal search articles of accused Laxmi Pd. was also deposited. He made entry in register no.19 at Srl.No. 1762.
Result: Acquitted Page 13 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16) On 07.08.2014, he had given one Parcel sealed with the seal of MK stated to be containing weapon of offence to Ct.Madan Lal for opinion vide RC no.
41/21/14, which was received on the same day and he made entry in this regard in front of entry no. 1762.
On 12.08.2014, exhibits of this case i.e. four parcels and four sample seals were given to Ct.Madan Lal for depositing the same with FSL, Rohni vide RC no.
42/21/14 and the same was deposited on the same day under receipt.
On 15.05.2015, result was received through Ct.Mohd.Shariq alongwith four Parcels and he handedover the same to the IO.
This witness has proved the Photocopy of entry no. 1762 dt. 05.06.2014 as Ex.PW14/A, Photocopies of RC no. 41/21/14 as Ex.PW 14/B and 42/21/14 as Ex.PW14/C and photocopy of acknowledgement of case property as Ex.PW14/D. Result: Acquitted Page 14 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) PW15 Anshul This witness has deposed that about 2 2½ (neighbour years back, at about 04:30 or 05:00 AM, he of deceased) was sleeping in his house. Pinki came to his Jhuggi and told that Laxmi had caused injuries to her brother by some sharp object in his stomach. She also told that Suresh @ Ghanti was lying at the door of his house. He told Pinki to call at 100 number. Thereafter, he had reached the house of injured and saw that Suresh @ Ghanti was lying near the door of his house. Pinki called on 100 number through some Phone. Police Gypsy came there and took the injured to DDU hospital, where the doctor declared him dead. He also accompanied with injured to the hospital. Thereafter, he made call from the hospital to mother of Suresh @ Ghanti and told her that Suresh had expired.
This witness has identified the deadbody of deceased vide Statement Ex.PW15/A and handing over memo Ex.PW10/B. This witness was crossexamined by the Ld.Addl.P.P.for the State wherein he denied the suggestion that he made call at Result: Acquitted Page 15 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) 100 number and told that injuries were caused to a male person by some sharp object and police official be sent. He admitted that accused Laxmi Pd.had also previously, before this incident, caused injuries to Suresh @ Ghanti in his stomach by screw driver. He voluntarily deposed that the said fact was told to him by mother of Suresh. He had not seen accused Laxmi Pd.causing injuries to Suresh @ Ghanti on the previous occasion. He admitted that the incident was of the year 2014. He denied that he stated to the police officials that he made a call at 100 number and told them that injuries were caused to a male person by some sharp object and police official be sent.
Result: Acquitted Page 16 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16) PW SI Rajbir This witness has deposed about all the 16 Singh (1st investigation conducted by him. He proved the IO) following documents :
(1) Statement of Pinki Ex.PW1/A;
(2) Tehrir Ex.PW16/A;
(3) Site Plan prepared at the instance of Pinki Ex.PW16/B;
(4) Arrest Memo, Personal Search Memo and Disclosure statement of accused Ex.PW10/C, Ex.PW16/C and Ex.PW16/D;
(5) Sketch of Screw Driver Ex.PW16/E;
(6) Seizure memo of Screw Driver Ex.PW 10/D and (7) Opinion regarding weapon of offence Ex.PW4/B. This witness has also identified the Screw driver Ex.P.10/1 and Cloth Pullanda in which Screw driver was produced before him by Dr.Komal Ex.PW16/1 before the Court.Result: Acquitted Page 17 of 58
State Vs. Laxmi Prashad FIR 397/14 (57298/16) PW Insp.Mahesh Being second IO of this case, he has also 17 Kumar (2nd deposed about the investigation conducted by IO) him and proved the following documents :
(1) Site Plan Ex.PW16/B;
(2) Request letter regarding conducting of Postmortem examination Ex.PW17/A; Brief facts Ex.PW17/B; Form 25.35 Ex.PW17/C and Identification Statements Ex.PW15/A and Ex.PW10/A;
(3) Postmortem report Ex.PW4/A;
(4) Seizure memo of clothes of deceased, blood sample and sample seal Ex.PW17/D;
(5) Photographs of Postmortem examination proceedings Ex.PW3/A.1 to Ex.PW3/A.27; (6) Arrest Memo, Personal Search Memo and Disclosure statement of accused Ex.PW10/C, Ex.PW16/C and Ex.PW16/D;
(7) Pointing out memo of place of incident Ex.PW10/B;
(8) Sketch of Screw driver Ex.PW16/E;Result: Acquitted Page 18 of 58
State Vs. Laxmi Prashad FIR 397/14 (57298/16) (9) Site Plan Ex.PW17/E;
(10) Seizure memo of Pullanda of Screw driver Ex.PW17/D;
(11) Scaled Map of place of incident Ex.PW9/A;
(12) His application to the office of CMO alongwith Road Certificate seeking opinion regarding the weapon of offence i.e. Screw driver Ex.PW17/F;
(13) Opinion of doctor Ex.PW4/B;
(14) PCR form Mark PW17/G;
(15) Copy of RC no. 42/21/14 Mark PW 17/H regarding deposition of Samples in the FSL.
(16) Copy of acknowledgement from FSL Ex.PW17/I and (17) Result from FSL Ex.PW11/A and Ex.
PW11/B and deposited by this witness before the Court vide his application Ex.PW17/J. This witness has also identified the Screw driver before the Court as Ex.P.1.
Result: Acquitted Page 19 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16) DEFENCE :
10. The incriminating circumstances produced by the Prosecution in the testimonies of PW1 to PW17 were put to the accused in his Statement U/s 313 Cr.P.C., wherein he denied all the questions put to him. He stated that he was arrested from Minocha Apartment, Vikas Puri, where he had gone to attend his duty as Plumber and no weapon was recovered from him. He further stated that he is innocent and never had any quarrel or fight with the deceased ever in his life.
Further, on the date of incident, he never visited the place of incident. There are many people by name of Laxmi in his vicinity. He did not know why PW1 and PW2 accused him for the alleged incident. DEFENCE EVIDENCE :
11. Accused has produced two witnesses in his defence.
12. DW1 is Sh.Munna Lal who is stated to be working as Plumber in Manocha Society, Vikas Puri and according to him on 5th day of month of June of the Year which he did not recollect, he was on duty Result: Acquitted Page 20 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) at 06:00 AM when accused also joined his duty at 06:10 AM. After 5 to 10 minutes, the Security Guard informed this witness that some police officials with the brother and Jija of accused had come to the Society and asking for him. The witness instructed the accused to go and check about the information. When the accused went outside the gate, he saw that the Police apprehended the accused. He produced copy of Attendance Register (relevant Page) which is Mark DW1/2. Original register is not produced.
13. His second witness is DW2/ Sh.Sukhlal i.e. real brother of the accused. According to him, on 05.06.2014, accused was in his house in the entire night and left in the morning to attend his work when it was still two or three minutes to 06:00 AM. At 07:00 AM, two Police officials came to his house inquiring about his brother and asked him to accompany them. He was taken to PS Vikas Puri in Police vehicle and from there, he was taken to Manocha Apartment where his brother was arrested.
14. All the incriminating evidence was put to the accused in his Result: Acquitted Page 21 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) statement U/s 313 Cr.P.C. wherein he denied the case of the Prosecution. He stated that on 05.06.2014, he was sleeping in his Jhuggi and did not visit the place of incident. He further stated that he was arrested from Manocha Apartment, Vikas Puri where he had gone to attend his duty as Plumber and no weapon was recovered from him. He had never any quarrel or fight with the deceased. There are many people by the name of Laxmi in their vicinity and he did not know why PW1 and PW2 accused him for the alleged incident.
15. This Court has heard Ms.Nimmi Sisodia, Ld.Prosecutor in support of the Prosecution's case and Sh.P.S.Rana, ld. counsel for accused.
16. Record has been perused carefully.
ARGUMENTS BY LD.PROSECUTOR :
17. Ms.Nimmi Sisodia, Ld.Prosecutor has urged that despite apparent discrepancies in statement of PW1 and her mother PW2 as well as PW15, the fact remains that the common thread running through the testimonies of each of these three witnesses is that the Victim had Result: Acquitted Page 22 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) stepped out of his house early in the morning on 05.06.2014 when he had gone to ease himself and returned running in an injured condition and that he provided description of the person who injured him besides providing the motive i.e. 'past altercation'.
18. The said person, according to the Prosecution, is undoubtedly established as the accused Laxmi Pd. The motive behind his act of stabbing the Victim on his abdomen is stated to be, regardless of the contradiction qua the time gap of previous quarrel, is said to be the some previous quarrel which took place between the present accused and the deceased.
19. The Prosecutor therefore urges paramount importance to this Dying declaration which is sought to be proved through PW1 and PW15.
ARGUMENTS BY LD.DEFENCE COUNSEL :
20. The defence has vehemently contended that no case U/s 302 IPC is proven against the accused. It is contended that none of the witness Result: Acquitted Page 23 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) had seen the accused committing the crime. The incident is said to have taken place in the early morning of 05.06.2014 and there is absence of any other eye witness. It is contended that there are presence of grave contradictions among the statement of PW1, PW 2 and PW15 thereby negating belief on either of them. It is urged that in contrast to statement Ex.PW1/A, PW1 has gone on improving her testimony by introducing her mother/PW2 as the person who found the Victim alive and also her version of so called Dying Declaration for the first time in the Court. Here also, the defence has urged the Court to take into account the different time of the events which PW1 and PW2 have stated. Likewise, qua PW15, it is urged that he never says either to the police during investigation or in this Court on oath that he ever became the witness to the Dying Declaration in the life time of the Victim. It is therefore submitted that the Court must not rely on such uncorroborated and disputed piece of evidence, even though it might be admissible as a Dying Declaration. The defence therefore has, straightway attacked on the Result: Acquitted Page 24 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) very foundation of this case i.e. the authenticity of the alleged Dying Declaration vis a vis the conflicting testimonies of PW1, PW2 and PW15.
FINDINGS :
21. As it would be apparent by now, the present case is primarily based not on an eye witness account or even circumstantial evidence but on a Dying Declaration. This Dying Declaration in the present case is stated to be an oral dying declaration that, if PW1 is to be believed, was made in the presence of PW1 herself, her mother Smt.Sundari/PW2 and secondly repeated again after the brief spell of unconscious of the deceased in the presence of PW15 namely Anshul.
22. The question that arise for consideration in accordance to Section 354 (1) (B) of Cr.P.C. is :
Whether the accused Laxmi Pd. Committed murder of the Victim Suresh @ Ghanty in the manner complained of ?Result: Acquitted Page 25 of 58
State Vs. Laxmi Prashad FIR 397/14 (57298/16)
23. Before I proceed any further, it is necessary to mention here the relevant Sections in this regard. Culpable homicide is defined under Section 299 IPC which reads as under:
299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Illustrations
(a) Always sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or with the knowing it to be likely to cause Z's death, includes B to fire at the bush.
Result: Acquitted Page 26 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16) B fires and kills Z. here B may be guilty of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death. Explanation 1. - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2. - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
Explanation 3 - The causing of the death of child in Result: Acquitted Page 27 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
24. Culpable homicide is first kind of unlawful homicide.
It is causing of death by doing (i) an act with the intention of causing death; (ii) an act with the intention of causing such bodily injury as is likely to cause death; (iii) an act with the knowledge that it was likely to cause death. Proceeding further, Section 300 IPC is a species of Section 299 and it defines murder. It is important to mention here that the charge so framed against the accused persons is a charge for murder which has been defined under Section 300 IPC which reads as under:
300. Murder - Except the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of Result: Acquitted Page 28 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) causing death, or -
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is cause, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to caused his death, Result: Acquitted Page 29 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) strikes him with the intention of causing bodily injury; Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, give him such a blow as would not in the ordinary course of nature kill a person in a sound stated of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a swordcut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a Result: Acquitted Page 30 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) premeditated design to kill any particular individual.
25. Each of the four clauses as mentioned above, requires that the act which causes death should be done intentionally, or with the knowledge or means of knowledge that death is a natural consequence of the act. An intention to kill is not always necessary to make out a case of murder. A knowledge that the natural and probable consequence of an act would be death will suffice for a conviction under Section 302 IPC. Reference may be had to "Santosh, 1975 CrLJ. 602 (SC).
26. The intention or knowledge necessary in order to render killing culpable homicide must be clearly prove by the prosecution which can usually be done by proof of the circumstances which prove the act of omission in question for the presumption is that a man knows the probable result of his conduct.
27. Before proceeding even further, it is submitted in brief that there is a difference between culpable homicide and murder. All murders are culpable homicide, however, all culpable homicide may not be Result: Acquitted Page 31 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) murder as defined under Section 300 IPC and punishable under Section 302 IPC. The distinction between these two offences is very ably set forth by Melveill, J. in Govinda's case [(1876) 1 Bombay 342] and Sarkariya J in Punnayya's case [State of AP Vs. R. Punnayya AIR 1977 SC 45].
The facts which reduce murder to culpable homicide are:
(a) It should have been committed without pre meditation;
(b) It should have been committed upon a sudden quarrel;
(c) It should have been commission in the heat of passion;
(d) It should have been committed without the offenders having taken undue advantage or acted in a cruel or unusual manner;
28. In the Perspective of Law as above, I will once again emphasize the need for reasserting that in the instant case no eye witness account is available nor the IO seems to have made investigation regarding presence of an eye witness from near the road, Lok Vihar Apartment Result: Acquitted Page 32 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) regarding presence of accused at that time. Further, the IO does not seem to have made any effort to verify whether the accused was indeed present in his house between the time of incident i.e. 04:00 to 05:00 AM at his own house. The Court cannot be oblivious to the fact that as many as two witnesses are produced in defence. One of them is an interested witness being DW1. He is a Plumber by profession employed in Manocha Society in Vikas Puri. He is a coworker of the accused and therefore not a related witness. He has stated that the accused had returned on duty on the day of incident at 06:00 AM. Mark DW1/2 (unproved) shows that he returned in Society on duty on 05.06.2014 at 06:10 AM as apparently at Point A.
29. DW2, real brother of accused is an interested witness and therefore his testimony is liable to close scrutiny. Even this witness states that the accused left his house for his work place i.e. Manocha Apartment about 2 to 3 minutes prior to 06:00 AM.
30. Now the above testimony when seen in the light of testimony of Result: Acquitted Page 33 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) PW1 reveals that she did not know the accused prior to the incident. She came to know about the accused only after her brother disclosed about him after the incident.
31. Likewise, testimony of PW2 also goes to show that she could not have known the accused prior to the incident.
32. So far as PW15 is concerned, he also admits that he had never seen the accused causing injury to the deceased prior to the incident.
33. It is therefore not established on record if any of these three witnesses actually knew anything about the accused Laxmi Pd. since prior to the incident or not.
34. What is established is that PW1 is unequivocally and without doubt stating that he never knew the accused prior to the incident. This element is missing in testimony of PW2 and PW15. Unfortunately, neither the Prosecution nor the defence has brought about this fact from the mouth of PW2 in the Court to infer whether atleast they knew the accused since prior to the incident.
35. I am saying so because I have observed apparent contradictions in Result: Acquitted Page 34 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) these testimonies which I shall point out in succeeding Paragraphs. The Court has to rule out any motive for false implication. Any such possibility will go in favour of the accused who is otherwise claiming innocence and false implication.
36. Thus, in this quest, the Court observes that PW1 who never knew anything about the accused said something which is quite 'improbable' while under crossexamination. If she did not know anything about the accused, and if she came to know that the accused was residing in the same locality (after knowing it from her deceased brother), it will be safe to infer that she did not even know as to which Jhuggi the accused resided in. However, she makes the following statement viz :
"The family members of accused Laxmi Pd. Made him run from his Jhuggi in order to save him".
37. This statement is missing in Ex.PW1/A and therefore its improbability is very strong. Coupled with the fact that PW2 does not say anything of similar kind, raises a question mark on the said Result: Acquitted Page 35 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) statement of PW1.
38. In the previous Paragraphs, I mentioned about the contradictions that have come in the testimonies of the above three witnesses regarding the Dying Declaration. I shall refer to the same now.
39. Before I advert to the aspect of Dying Declaration, the following prospective of law is to be clearly understood.
40. Section 32 (1) of the Indian Evidence Act is as under :
"When it relates to cause of death - when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question".Result: Acquitted Page 36 of 58
State Vs. Laxmi Prashad FIR 397/14 (57298/16)
41. An oral dying declaration includes dying declaration made in any other form except the written one. The oral evidence of witness as to the statement made by the injured who died subsequently would prove the declaration as dying declaration.
42. There is no hard and fast rule to judge the authenticity of a dying declaration. The dying declaration if in writing not necessarily is more reliable than oral one.
43. The rule is "Ipsissima verba" i.e. before a dying declaration is accepted by a court as such, actual words of declarant must be proved which is a very salutary rule. However it cannot be held that unless the actual words repeated by each witness of the declaration, it is not possible for the court to come to the conclusion that the declarant made the declaration or what the import or meaning of the declaration was.
44. Under Section 32(1) of the Act a dying declaration which is in the nature of hearsay evidence is relevant and admissible in evidence sheerly on the basis of principle of necessity. Though the maker of Result: Acquitted Page 37 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) the statement has died after making the statement yet the same is admissible regarding the cause of his death. It is not incorrect to say that a dying declaration is also one of the best available evidence which has been duly recognized by law despite of the fact that it is of hearsay nature.
45. The clear language of Section 32(1) of the Act read with observations the Apex Court suggests various propositions for admissibility of this class of hearsay as :
(a) Section 32(1) of the Act is an exception to rule of hearsay. It makes admissible the statement of a person who dies whether it is homicide or suicide provided it relates to the cause of or the circumstances leading to his death.
(b) The test of proximity should not be too literally construed to practically reduce it to a cut and dried formula or universal application so as to be confined in a strait jacket. Thus, where death is a logical Result: Acquitted Page 38 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) culmination of a continuous long drama, a finale of the story, the statement regarding each step directly connected with the death would be admissible. It would have to be read as an organic whole not torn from the context. Some times statements relevant to or furnishing immediate motive may also be admissible as part of the transaction of death like where death takes place within a very short time of marriage or where the time is not spread over more than 34 months.
(c) Second part of the Section 32(1) is yet another exception to the rule of criminal law that evidence or a person who is not subjected to cross examination by the accused is of no value as the person on the verge of death is not likely to make a false statement unless there is strong evidence that the statement was secured by prompting and/or tutoring.
(d) Section 32(1) does not speak of homicide Result: Acquitted Page 39 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) alone but includes suicide also and all the circumstances relevant to prove homicide would be equally relevant to prove suicide.
(e) Where the main evidence consists of deceased's statement (s) and letter (s) directly connected with or related to declarant's death revealing a tell tale story, the same would be admissible as it clearly falls within the four corners of section 32(1) the distance of time alone in such cases would not make the statement(s) irrelevant.
46. Dying declaration is an important piece of evidence with regard to concerning circumstances with respect to which the deceased is not likely to be mistaken. Even if a particular statement of the deceased which while it was made by him or put into writing assumed the character of dying declaration, yet to become admissible it must pass through two tests :
(a) It must refer to the cause of his death or as to any Result: Acquitted Page 40 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) of the circumstances of the transaction which resulted in his death; and
(b) It is admitted in evidence only in those cases in which cause of that person's death comes into question.
47. It is a pre requisite that the declarant must have died.
48. However for the purpose of admissibility, it is not necessary that the dying declaration should be recorded by a particular person or it must be in a particular format. The same has to be evaluated at the time it is considered by the court as to what evidentiary value it carries or how much reliance can be placed on it.
49. The dying declaration must be complete in so far as it goes to be admitted under Section 32(1) of the Act. The basic ingredients or a dying declaration are as to who and in what manner death of the declarant was caused or circumstances resulting in his death. But if any interruption (by death or by intruder) cuts short the statement and the basic material ingredients have not come in it, then fragmentary statement is not admissible what ever the declarant intended to say or Result: Acquitted Page 41 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) has said. In a case, the Apex Court observed that where a statement was severable in two parts and none of them was dependent on other so far as correctness was concerned, the court could act upon the part which it find trustworthy if from the record it is corroborated on material aspects though the other part was not proved as correct. (Godhu Vs. State AIR 1974 SC 2188).
50. Besides factors relevant for admissibility it is important to ascertain admissible zone i.e. against whom such statements are admissible. Admissibility of dying declaration rests upon the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. Such statements are admitted considering that they are declarations made in extremity, when the maker is at the point of death, when every hope of this world is gone, when every motive to false hood is silenced and the mind is induced by the most powerful consideration to speak truth. The principle on which such statements are admitted in evidence is based on the legal maxim "Nemo Result: Acquitted Page 42 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) moriturus Proesumitor mentir" i.e a man would not like to meet his maker with a lie in his mouth.
51. In a case the court held that a dying declaration which is not in words of declarant but a mere note of substance of what he said is unsafe for conviction. (Emperor Vs. Sikander AIR 1930 A 532).
52. Dying declaration is certainly an evidence though it is only a piece of untested evidence. Like any other evidence, it must satisfy the court that what is stated therein is unalloyed truth and that it is absolutely safe to act upon it. (Priyalal Vs. S. AIR 1970 A & N 137).
53. The courts must be cautious about the circumstances as to when a dying declaration was made, the capacity and opportunity of dying man to observe the accused and narrate incident, his faculty to remember and his capacity to reproduce the events. If the dying declaration is not recorded in words of maker, certain tests must be applied by the court. Dying declaration must be carefully and critically scrutinized by the court and the dying declaration which inspires confidence of the court possesses great evidentiary value.
Result: Acquitted Page 43 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16)
54. The Apex court observed in a case that while appreciating the credibility of the evidence produced before the court, the court must view the evidence as a while and then come to a conclusion as to its genuineness and truthfulness. There mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The court must be satisfied that the dying declaration is truthful.
55. The dying declaration is hearsay evidence and the person to whom it is communicated must prove it.
56. In a case the Supreme Court observed that the deceased made two oral dying declarations one before one sister and the other before another sister. However both the dying declarations have created doubt regarding presence of both these witnesses and from the testimony of PW3, the court observed that the demneaour of all these persons was not up to the mark. Further serious doubts arose in the mind of court if the deceased had made any such dying declaration to PW5 as the same was brought to the notice of the Result: Acquitted Page 44 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) court for the first time during the trial and was not mentioned anywhere in her complaint to the police which was an admitted fact. The other dying declaration to the other witness was also doubtful and so court disbelieved all the dying declarations as well as the testimonies of witnesses in whose presence it was stated to have been made. {Ramesh Prashad Vs. State of Bihar Criminal AIR 2000 SC 398 : 1999(4) RCR (Crl.) 229 (SC)}
57. In the above backdrop of the law, I am drawn to the fact that the Police did not record verbatim version of what precisely was stated by the deceased to Pinki/PW1. All that can be gathered is that her brother returned running to his house and told that he had gone on the road in front of Lok Vihar Apartment to ease himself where Laxmi Pd. was already present. The said Laxmi Pd. used to reside in the same Jhuggis and he had argued with him and thereafter, hit on his abdomen with some sharp object. He further told PW1 that this Laxmi Pd. is the same person who had earlier quarreled with him.
58. The IO had examined mother of PW1 namely Smt.Sundari U/s Result: Acquitted Page 45 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) 161 C.P.C. who narrated the same version.
59. IO had also examined PW15 Anshul who stated nothing about the Dying declaration.
60. As PW1, all that the witness narrated is that her brother came back to the house at 04:30 AM and told her as well as her mother that accused Laxmi Pd. had hit him with some pointed Object.
61. From this point onwards, the version of the witness is not as per her version in Ex.PW1/A.
62. It is so as the witness states that, "thereafter, she called our neighbourer Anshl and he came to our house and in his presence also, my brother told us that Laxmi Pd. had given him injury. He further told that Laxmi Pd. Had also given him injuries prior to this incident".
63. Impression is therefore given to the Court that both mother and daughter had called Anshul whereas it is not so as per Ex.PW1/A. Firstly, Ex.PW1/A is silent regarding presence of mother/PW2 in Result: Acquitted Page 46 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) the house. Secondly, as per said statement, witness herself had gone to the house of Anshul to call him and told him about the version of her brother deceased.
64. In the Court, she introduces her mother to be present in the house;
she introduces a new fact that deceased narrated his ordeal to her in presence of her mother; she twists facts by stating that "We" called Anshul and she improves on her testimony thereby making a material departure from Ex.PW1/A stating that same facts were told to Anshul by none other than her brother who later succumbed to the injuries.
65. Not only the above, but her voluntary testimony is of utmost relevance regarding defence of the accused and thus extracted as under :
"I cannot identify accused Laxmi Pd.".
66. Following question put to the witness by the Prosecution is also of utmost relevance viz :
"Q. whether you are acquainted with the person, who Result: Acquitted Page 47 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) is present as an accused in this case namely Laxmi Pd.?
Ans. I was not knowing the accused previously but when he committed murder of my brother, I came to know about him".
67. The very next question by the Prosecution assumes significance as the prosecution tried to assist the witness to identify the accused. The question is extracted as under :
"Q. You have stated as above that I cannot identify accused Laxmi Pd. but now you deposed that accused Laxmi Pd., who is present in the Court as the same person who had committed murder of your brother. What is your explanation as to why initially you replied in 'Negative'?
Ans. I was not knowing him earlier to the incident but I came to know about him after my brother Result: Acquitted Page 48 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) disclosed about him to us".
68. It would be important to understand as to what did the brother disclose. What the brother disclosed to PW1 is that one Laxmi Pd. had injured him with a sharp object in his abdomen and he is the same Laxmi Pd.who is resident of the same Jhuggi area and had earlier quarreled with him.
69. Thus, besides the name and the fact that the said Laxmi Pd.resided in the same Jhuggi complex, no other peculiar identification of the assailant Laxmi Pd. was provided by the deceased in his last statement.
70. It is in her crossexamination that deceased had left the house at 04:00 AM without conveying them and at that time she and her mother were sleeping and both the children were also awoke. The ages of the children are not provided. There is no clarification on record if the said children who were awake, also witnessed the injured making a Dying declaration before his death.
71. The witness woke up at 04:30 AM when his brother knocked on Result: Acquitted Page 49 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) the door but this fact is not mentioned in Ex.PW1/A.
72. Surprisingly, Suresh @ Ghanti was lying injured in the house for about half an hour and during this period, all the the witness did was call her neighbourer Anshul. This unusual conduct is unexplained.
73. Further more, the witness states that she does not maintain the Mobile Phone and none of his family members were having any Mobile Phone on the date of incident. This version is in contrast with the contents of Ex.PW1/A wherein the Mobile number of the witness is recorded as '8826082831'. If the witness had the Mobile Phone, she could have made the Phone call to the Police but according to her, it was Anshul who made the call to the Police at 06:00 AM and the Police arrived at 07:30 AM. This cannot be true. PCR Form Ex.PW17/G (Ex.PW8/A) is on record showing that Call was made at 05:08:04 hours from Mobile Number '9911039196'.
74. As per Ex.PW15/B i.e. Statement of Anshul U/s. 161 Cr.P.C., Result: Acquitted Page 50 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) this Phone number is shown to be belonging to him and as per Portion Mark A to A, thereupon it is Anshul who made PCR Call at Phone Number 100. But when examined in Court, PW15 deposed that, "Pinki called on 100 number through someone. I did not make call at 100 Number". He stuck to this stand even in his cross examination by the Ld.Prosecutor.
75. Nevertheless, the time of Phone call is 05:08 AM and MLC Ex.PW5/A shows that the Victim was present in the hospital at 05:50 AM. The precedence will have to be therefore given to documentary evidence as the ocular evidence of PW1, PW2 and PW15 is varying about time.
76. As per PW2, her son left the house at 05:00 AM and returned at 06:30 AM. She had spoken to Suresh @ Ghanti for about 5 to 10 minutes and he was conscious. As per PW1, her mother fell unconscious immediately upon noticing that her Son was injured. There is a contradiction as above.
Result: Acquitted Page 51 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16)
77. Further, as per PW2, Police reached the spot at about 07:00 or 07:30 AM. She came to know about the death of her Son at 08:00 AM.
78. Since the anomaly of time of incident is not clear from the testimonies of public witnesses, hence, the Court falls back upon the documentary evidence which categorically shows that PCR Call was made at 05:08 AM. The Victim was lying injured in the house for about 30 minutes and thus, the time of incident was some time between 04:00 AM to 04:30 AM only.
79. There is no eye witness to the incident and the version of the deceased regarding his assailant only establishes the name factor and the residence factor.
80. Proceeding ahead, PW2 claims to be present in the house but she is silent about the children of PW1. According to PW2, she did not loose consciousness and heard dying declaration of deceased. Her Son thereafter fell unconscious. Her daughter called Anshul. When Result: Acquitted Page 52 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) Anshul arrived, her Son also narrated the entire incident to Anshul and fell unconscious. She also states that Anshul only called the PCR.
81. She creates serious doubt in the Prosecution version during her crossexamination, when she states, "when my Son returned home, at that point of time, nobody was present there. The door of the house was lying opened, when my Son returned home".
82. If the witness is to be believed then neither PW1 nor her Sons were present in the Jhuggi at 04:30 AM but if PW1 is to be believed then not only she but her Sons as well as PW2 were also present in the Jhuggi.
83. Further more, in her crossexamination, the witness confuses between facts and circumstances that it was she who called Anshul from neighbourhood. According to PW1, it is she who had gone to call Anshul and even as per Anshul, only PW1 had come to his house.
Result: Acquitted Page 53 of 58State Vs. Laxmi Prashad FIR 397/14 (57298/16)
84. So far as PW15 Anshul is concerned, it was never his case that he witnessed the last words spoken by the deceased. But PW1 and PW2 have deposed on oath that Anshul had heard the dying declaration. Same is not the Prosecution's case as PW15 Anshul never stated that the deceased made a dying declaration in his presence.
85. What is therefore crystal clear from the above is that the related witnesses i.e. PW1 and PW2 are twisting facts, improving and in the process, contradicting each other.
86. The common thread that flows through both the testimonies is that none of them knew Laxmi Pd. prior to the incident.
87. PW1 has admitted that she knew nothing about any previous quarrel of Laxmi Pd. with her brother/deceased. PW2 states that there was a quarrel between her Son and accused Laxmi Pd. but it was about a year prior to the incident which cannot be factually correct as said quarrel is stated to be only a month prior to the Result: Acquitted Page 54 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) incident.
88. In my considered view, the above conflicting testimonies which are self destructive cannot be made sole basis of evidence to order Conviction.
89. In my further considered view, the dying declaration is not proved. The other piece of evidence against the present accused is recovery of the Screw Driver Ex.P.1.
90. As a matter of fact, mere recovery of this article, even if proved, cannot be sole factor to order Conviction. Nevertheless, in the present case, the Recovery Memos are signed by SI Rajbir and Ct.Satbir. This is despite the fact that according to the IO, it is the accused who had pointed out to the place where he had thrown the said Screw Driver.
91. PW10, elder brother of Suresh @ Ghanti is a witness to arrest of the accused and recovery of Screw driver. However, he did not see the Screw driver at the time of its recovery. He did not know if Police prepared Seizure memo Ex.PW10/D at the time of seizure of the Result: Acquitted Page 55 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) Screw Driver. PW1 admits that she had signed on blank papers.
92. Even if I proceed to believe that the recovery of Screw Driver has been made at the instance of the accused only then also it can be observed from the testimony of Expert witness PW11 that she had examined Parcel 1 containing one Screw Driver which had few Blood stains. She also examined Ex.2(a) i.e. Baniyan, Ex.2(b) i.e. Underwear, Ex.3 i.e. blood sample and Ex.4 i.e. blood in gauze. The Serological analysis were carried out and blood group 'B' was detected on all the exhibits except Ex.1 i.e. Screw Driver and Ex.3 i.e. blood sample. Thus, though the Court has not been provided with the blood group of deceased but since his undergarments had blood stains of blood group 'B', it will be safe to infer that the blood group of the deceased was 'B'. However, this is not the blood group that could be detected from the blood stains that were present on the Screw Driver which is stated to be a weapon of offence.
93. Therefore, recovery of even the Screw Driver puts no Result: Acquitted Page 56 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) incriminating role on the present accused as it is not linked to be weapon of offence on Forensic examination.
94. Regarding the identity of the accused, suffice would be to say that PW1 never new the accused prior to the incident and as a matter of fact, PW2 and PW15 never stated in the Court that they knew the accused Laxmi Pd. since prior to the incident or that it is this Laxmi Pd. only with whom, the deceased had a fight on a previous occasion.
CONCLUSION :
95. Consequently, benefit of doubt is given to the accused. This Court holds that the Prosecution is not able to prove the case against the accused beyond reasonable doubt. Thus, accused Laxmi Pd.is hereby acquitted for the Offence U/s 302 IPC.
Accused has already furnished PBs/SBs for Rs.10,000/each (Rupees Ten thousand each) with one surety each in the like amount, in view of Section 437A Cr.P.C. as per Order Result: Acquitted Page 57 of 58 State Vs. Laxmi Prashad FIR 397/14 (57298/16) dt. 31.07.2018. Surety is present. His PB/SB is accepted for a pe riod of six months from today.
Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of fil ing appeal, if any.
ing appeal, if any.
File be consigned to Record Room.
Announced in open Court (Manish Yaduvanshi)
on 24.08.2018 ASJ05(W)/THC
Delhi/24.08.2018(P)
Digitally
signed by
MANISH
MANISH YADUVANSHI
YADUVANSHI Date:
2018.08.25
16:38:52
+0530
Result: Acquitted Page 58 of 58