Delhi District Court
Sc No. 158/22, Fir No. 343/21, Ps Sarita ... vs . Abdhesh @ Pappu 1 Of 21 on 1 April, 2023
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-5, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
SC No. 158 of 2022
CNR NO. DLSE01-002223-2022
State
Vs.
Abdhesh @ Pappu
S/o late Lal Singh
R/o H.No. Jhuggi No. 130,
Rajasthani Camp,
Sarita Vihar, New Delhi.
FIR No. 343/2021
PS: Sarita Vihar
U/s: 302 IPC
Instituted on : 03.01.2022
Committed on : 05.03.2022
Argued on : 17.03.2023
Decided on : 01.04.2023
JUDGMENT
1. The accused in the instant case has been sent to face trial with the allegations that on 04.10.2021 at about 7.30 to 8.00 PM in front of Flat No. 113, near Jai Mohan Property, LIG Flats, Road leading to Madanpur Khadar, Mathura Road, Sarita Vihar, New Delhi within jurisdiction of PS Sarita Vihar, he committed murder of victim Arvind by stabbing him with a poker. Accused was thereby alleged to have committed offence u/s 302 IPC.
SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 1 of 21
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2023.04.01 14:11:53
+0530
2. The facts as discernible from record may be taken note of: On 04.10.2021, on receipt of DD No. 84A, 85A and 86A, HC Virender reached at the spot and informed SI Roshan Lal about blood having been found scattered there. SI Roshan Lal alongwith Ct. Santosh reached at the spot and came to know that injured has already been shifted to Apollo Hospital. In the meantime, on receipt of DD No. 93A and 97A, SI Roshan Lal and Ct. Santosh went to Apollo Hospital and collected MLC of injured Arvind Kumar wherein latter was declared as brought dead. They met eyewitness namely Pradeep Kumar in the hospital and took him to the spot. Crime team was called at the spot and spot was photographed.
2A. During investigation, one pair of chappal, one dupatta, two pieces of a wooden stick, one cardboard and blood were lifted from the spot and same were seized. Thereafter, statement of eyewitness Pradeep Kumar was recorded who stated that on 04.10.2021 at about 7.45 PM, he was going on his rickshaw from Madanpur Khadar Village to Sarita Vihar Metro Station and when he reached near a tree in front of LIG Flat No. 113, he saw that two persons were manhandling with each other and 2-3 rickshaws and 3-4 persons were standing there; that he went there and saw that brother-in-law (damad) of his aunt (bua) namely Arvind was lying there and accused was beating him with fist and leg blows; that he pulled and got separated the accused; that when Arvind was about to put key in his rickshaw, accused took out a poker and hit the same on the chest of Arvind; that when he was going to apprehend accused, latter ran away from the spot after showing poker to him also; that victim Arvind was lying at the spot and blood was oozing out from his body; that in the meantime his another brother-in-law (jeeja) namely Bobby Kumar reached SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 2 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:12:06 +0530 at the spot and they both took the victim to Apollo Hospital; that doctor had declared Arvind dead during his treatment. Thereafter, instant FIR was registered against the accused for offence u/s 302 IPC and investigation was marked to Inspector Anant Kumar Gunjan.
2B. During further investigation, wearing shirt of Bobby Kumar was seized by the IO. Exhibits were collected from Apollo Hospital and dead body was shifted to AIIMS Mortuary. After postmortem, exhibits were deposited in malkhana. Accused Abdhesh @ Pappu was arrested from Living Style Mall, Jasola Vihar at the instance of one secret informer who disclosed about his involvement in the present crime. Accused took the IO and other police officials to a vacant land towards Janta Flats and got recovered one poker from the bushes near boundary wall. The said poker was seized by the police. The doctor opined that injury No.1 as mentioned in the PM report is sufficient to cause death in ordinary course of nature. The exhibits were sent to FSL for examination. On completion of investigation, chargesheet was filed under section 302 IPC against accused Abdhesh @ Pappu.
CHARGE
3. On completion of necessary formalities, matter was committed to the Court of Sessions. To a charge under section 302 IPC, framed on 29.04.2022, the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
4. PW1 Sh. Pradeep Kumar @ Deepu deposed that on 04.10.2021 at around 07.45 pm, he was going to Sarita Vihar Metro Station SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 3 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:12:12 +0530 from Madanpur Khadar Village on his battery paddle rickshaw and when he reached near LIG Flat No.113 in front of Jai Mohan Property, he saw that two persons were scuffling with each other on the road and 2-3 other rickshaws were standing there and other public persons were also there; that on seeing this, he parked his rickshaw on the side of the road and reached there and saw two persons were scuffling with each other; that one of them was accused Abdhesh and other one was Arvind i.e. deceased; that he intervened and pacified them; that when Arvind was about to put keys in his e-rickshaw, accused Abdhesh took out a poker (sua) and attacked on the chest of Arvind with the same; that accused had attacked with said poker once on the chest of Arvind; that blood started oozing out from the mouth of Arvind after sustaining the poker blow and he fell down on the ground; that after inflicting injuries upon Arvind, accused Abdhesh had fled away from the spot alongwith his rickshaw.
4A. He further deposed that in the meantime, brother-in-law of the injured Arvind namely Bobby had also reached at the spot; that he alongwith Bobby and other relatives had shifted Arvind in Apollo Hospital for treatment; that police had also reached at the hospital; that during treatment, doctor declared Arvind as dead; that thereafter he alongwith police reached at the spot and also made search for accused Abdhesh; that police recorded his statement Ex.PW1/1. He correctly identified the poker Ex. P1 which was used by accused while inflicting injuries to deceased Arvind.
4B. During cross examination, the witness deposed that he had
SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 4 of 21
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2023.04.01
14:12:18 +0530
seen the CCTV footage as available on judicial record and deposed that he was visible in the said footage in white clothes having gamcha and intervening in order to save the deceased. He denied the suggestion that in the footage, he was helping deceased in attacking the accused. He voluntarily deposed that he was attempting to rescue deceased from accused.
5. PW2 Bobby Kumar deposed that on 04.10.2021 at about 07.30 to 08.00 PM, on receipt of a telephonic call from one Pradeep @ Deepu who informed that Arvind who was his brother-in-law (Saadu) has been stabbed by one Avdhesh @ Pappu by a sua, he reached at the spot and found Arvind lying there in unconscious state; that he had shifted Arvind to the hospital through his rikshaw as he was also a Rikshaw Driver at that time; that in the hospital, doctor declared him dead; that on next day he handed over the rikshaw of accused Abdhesh to the police and his shirt which were seized vide memo Ex. PW 2/1 and Ex. PW 2/2.
6. PW3 Inspector Rakesh Kumar Sharma deposed that on 1310.2021, he joined his duty as SHO PS Sarita Vihar and took charge of the investigation of the present case; that he got prepared scaled site plan Ex. A3; that he requested the Executive Engineer vide letter Ex. PW3/2 for providing CCTV Footage alongwith certificate u/s 65B of Indian Evidence Act alongwith the relevant documents as mentioned in the letter itself and in response of the same, CCTV footage was provided vide letter Ex. AD1 and Ex. AD2 and CCTV footage is Ex. AD3 (colly); that he got deposited the case property on 09.12.2021 and 15.12.2021; that he recorded statement of witnesses and after completion of the investigation, he filed SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 5 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:12:30 +0530 the chargesheet.
7. PW4 SI Roshan Lal is the first Investigating Officer who deposed about the investigation conducted by him. He deposed that on 04.10.2021, on receipt of DD No. 84A, 85A and 86A Ex. A-2 (colly), HC Virender reached at spot i.e. at Madanpur Khadar at Mathura Road in front of Flat no. 113 near Jai Mohan Property, LIG Flats, Sarita Vihar where he telephonically informed him as well as the police station that blood was lying at the spot and the call was marked to him for attending the same; that he alongwith Ct. Santosh had reached at the spot and found that blood in huge quantity was scattered and on inquiry, he came to know that injured has been shifted to Apollo Hospital; that in the meantime, on receipt of DD No. 93A and 97A Ex. PW 4/1 (colly) regarding the MLC, leaving HC Virender at the spot for its safe custody, he alongwith Ct. Santosh reached Apollo Hospital where he found admitted Arvind Kumar vide MLC No. 588/21; that he procured MLC and injured Arvind was declared brought dead.
7A. He further deposed that on inquiry, one witness Pradeep met him in the hospital and he alongwith said witness and Ct. Santosh returned to the spot; that crime team was also called at the spot who inspected the same and spot was got photographed; that one pair of slipper, one dupatta and two pieces of blood stained wooden stick (phanti), one cardboard and blood was also scattered there and same were taken into possession by the seal of RL and were seized vide memo Ex. PW 4/2; that he recorded the statement of eyewitness Pradeep Kumar Ex. PW 1/1 and on the basis of MLC and statement and inspection of the scene of occurrence, he prepared SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 6 of 21 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:12:37 +0530 tehrir Ex. PW4/D and got the FIR registered; that further investigation of the present case was assigned to Insp. Anand Kumar Ranjan who visited the spot and he handed over the documents and exhibits to Insp. Anand Kumar Ranjan; that FIR number was written on the seizure memo Ex. PW4/2 (blood in gauze and blood stained earth control); that seal after use was handed over to HC Virender vide handing over memo Ex.PW4/4; that IO prepared site plan Ex. PW 4/5.
8. PW5 Inspector Anant Kumar Gunjan is the second Investigating Officer who apart from deposing on line of PW4, testified about arrest of accused vide memo Ex. PW5/2. He further deposed that accused got recovered his rikshaw and weapon of offence i.e. 'sua' and same were taken into possession vide seizure memos Ex. PW5/4 and Ex. PW5/5 respectively; that prior to seizure of sua, its sketch Ex. PW5/6 was prepared; that accused also pointed out place of incident vide memo Ex. PW5/7; that accused was taken on one day PC remand for the recovery of his wearing clothes which he was wearing at the time of commission of offence but same could not be recovered; that during course of investigation, he recorded statement of witnesses and thereafter he was transferred from the police station.
9. Record transpires that during course of trial, accused admitted certain documents of prosecution i.e. registration of FIR alongwith certificate u/s 65B of Indian Evidence Act as Ex. A1 (colly), DD No. 84A, 85A, 86A, 93A, 97A all dated 04.10.2021 as Ex. A2 (colly), scaled site plan as Ex. A3, postmortem report of deceased Arvind Kumar as Ex. A4, MLC No. 528/21 alongwith brought dead certificate of deceased Arvind SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 7 of 21 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:13:42 +0530 Kumar (of Apollo Hospital) as Ex. A5 (colly), crime team report as Ex. A6, PCR form alongwith certificate u/s 65B as Ex. A7 (colly), CDR and CAF alongwith certificate u/s 65B of mobile No. 7838742434, 9716202909 and 8750404128 as Ex. A8 (colly), dead body identification statement of Mukesh and Rampal as Ex. A9 and A10 respectively, Letter No. 54(22)/EEE-1/Wi-Fi, St. Lights/2021-22/773(H) dated 23.11.2021 alongwith its annexures as Ex. AD1, CCTV footage certificate dated 26.10.2021 as Ex. AD2, DVDs as Ex. AD3 (colly), Superdaginama dated 24.01.2022 of rickshaw alongwith its four photographs as Ex. AD4 (colly), FSL report dated 29.03.2022 bearing FSL No. SFSLDLH/12547/Chem/4192/21 dated 29.03.2022 as Ex. AD5 and FSL report dated 29.07.2022 bearing FSL No. SFSLDLH/12821/Bio/2873/2021, BIO No. 3036/21 dated 20.07.2022 as Ex. AD6 vide his separate statements recorded u/s 294 CrPC. Therefore, said documents can be read in evidence without formal proof of same in terms of section 294 CrPC.
STATEMENT OF ACCUSED U/S 313 CrPC:
10. Examined under section 313 of CrPC, accused either pleaded ignorance about the incriminating evidence or denied the same as incorrect. He claimed to be falsely implicated and took the following plea:-
"I did not assault deceased with Poker intentionally. I took out the poker from my rikshaw in self defence and in the process, deceased got stabbed with my poker. I had no intention to kill him.
I am innocent. I was falsely implicated in this case. I was coming from Sarita vihar Metro station and was going towards Khadar. Chain of my rikshaw got defective and I was fixing the same after stopping the rikshaw. There was one passerby SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 8 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:13:54 +0530 with whom I had some hot words exchanged and in the meanwhile, the deceased came from behind and hit me with his rikshaw due to which an altercation took place between us. Thereafter, I tried to go from the spot but deceased and that passerby did not let me go and started assaulting me. Thereafter PW1 Pradeep also joined them and they all started assaulting me. To save myself from said assault, I took out the poker from my rikshaw and in the process of scuffling I and deceased fell on the road and in the process the deceased got stabbed by the poker. When I left from the spot, deceased was not bleeding and I was not aware about his injuries."
ARGUMENTS OF Ld. ADDITIONAL PUBLIC PROSECUTOR FOR THE STATE:
11. Ld. Addl. PP for the state argued that the testimony of eyewitness PW1 Sh. Pradeep Kumar @ Deepu is consistent, trustworthy and of sterling quality as nothing came out in his cross-examination to discredit his version and to impeach his credibility. He further argued that there arises no reason for this court to disbelieve testimony of PW1 as he had no prior enmity with the accused. He urged that minor contradictions are bound to be occurred in testimony of a natural witness. It was lastly his submission that prosecution has successfully proved its case against the accused beyond all reasonable doubts for offence u/s 302 IPC.
ARGUMENTS OF Ld. DEFENCE COUNSEL:
12. Ld. defence counsel argued that there are contradictions in the testimony of the eyewitness. It was further argued that a close scrutiny of CCTV footage reveals that it was deceased and PW1 who were assaulting him and it was in the process of saving himself, the accused accidentally hit upon deceased with the sua. It was argued that case of prosecution at best would fall within section 304(II) IPC and not u/s 302 IPC.
SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 9 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:14:01 +0530
13. I have heard rival contentions and perused the record. For appreciating the rival contentions, it would be apt to analyze the evidence brought on record in detail to adjudicate, if the prosecution has been able to prove its case beyond all reasonable doubts or whether accused deserves to be acquitted in the present case?
DISCUSSION ON LAW:
14. Before proceeding further, I would set-up the position of law on various aspects that arise in the matter.
15. In Lallu Manjhi v State of Jharkhand, (2003) 2 SCC 401, it was held as under:
10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact.
However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (See: Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000].)"
16. In Amar Singh v State NCT Delhi, 2020 SCC OnLine SC 826, it was observed as under:
"16. Thus the finding of guilt of the two accused appellants recorded by the two Courts below is based on sole testimony of eye witness PW-1. As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 10 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:14:10 +0530 are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.
29. In the facts and circumstances of the case this was serious lapse on the part of the investigating officer. Though normally minor lapses on the part of the investigating officer should not come in the way of accepting eye witness account, if otherwise reliable. But in the circumstances of the case at hands where the conduct of sole eye witness is unnatural and there are various other surrounding circumstances which make his presence at the site of incident doubtful, such a lapse on the part of the investigating officer assumed significance and is not liable to ignored."
17. In Santosh Prasad @ Santosh Kumar v State of Bihar, (2020) 3 SCC 443, it was observed as under:
"5.4.2. In Rai Sandeep [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750], this Court had an occasion to consider who can be said to be a "sterling witness". In para 22, it is observed and held as under:
22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 11 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:14:19 +0530 one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
18. In State of Maharashtra v Dinesh, (2018) 15 SCC 161, it was observed as under :
"8. In Joseph v. State of Kerala [Joseph v. State of Kerala, (2003) 1 SCC 465 : 2003 SCC (Cri) 356], this Court has observed that where there is a sole witness, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other material on record. In State of Haryana v. Inder Singh [State of Haryana v. Inder Singh, (2002) 9 SCC 537 : 2003 SCC (Cri) 1239], this Court has laid down that the testimony of a sole witness must be confidence inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. In Ramnaresh v. State of Chhattisgarh [Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 :
(2012) 2 SCC (Cri) 382], this Court, after taking note of the aforementioned two judgments, observed that "the principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an accused cannot be based upon the statement of the sole eyewitness to the crime.
All that is needed is that the statement of the sole eyewitness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 12 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:14:25 +0530 produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime". It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement (Seeman v. State [Seeman v. State, (2005) 11 SCC 142 : 2005 SCC (Cri) 1893]).
"11. Thus, in the foregoing circumstances, especially taking note of the unnatural manner in which PW 7 kept quiet till one-and-half months after the incident, that too in the midst of thickly populated vicinity, it is not safe to convict an accused solely relying on her evidence. Thus, we find no firm ground in this appeal or reason to believe the testimony of alleged eyewitness PW 7 calling for our interference in the judgment passed by the High Court. In our view, the High Court has rightly classified and considered the evidence of prosecution witnesses and after properly analysing the facts and circumstances rendered a reasoned judgment, disbelieving the prosecution story. We, therefore, affirm the view taken by the High Court and dismiss the appeal of the State."
19. Next, in Narayan Chetanram Chaudhary v. State of Maharashtra [(2000) 8 SCC 457 : 2000 SCC (Cri) 1546 : AIR 2000 SC 3352], it was observed as under:-
"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person."
20. Further, in Allauddin Khan v State of West Bengal, 2015 SCC OnLine Cal 3033, it was held as under:
"15. It is the settled proposition of law that there (sic, is) bound to be some discrepancies between the depositions of different witnesses when they speak on details, and unless the SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 13 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:14:32 +0530 contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. But discrepancy has to be distinguished from contradiction. While minor discrepancy or variance in evidence will not make the prosecution's case doubtful, contradiction in the statement of witness is fatal for the case. The above principle of law has been laid down in the matter of State of H.P. v. Lekh Raj, reported in (2000) 1 SCC 247 and the relevant portions of the above decision is quoted below:-
7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version.
Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagadish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person. Whether the discrepancy is minor or the same is contradiction fatal for the case is a matter of fact which is special to each case."
21. Further, in State of UP v Nandu Vishwakarma & Ors, (2009) 14 SCC 501, it was held as under:
SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 14 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:14:41 +0530 "23. It is a settled principle of law that when on the basis of the evidence on record two views could be taken--one in favour of the accused and the other against the accused--the one favouring the accused should always be accepted. "
22. In light of these guiding principles, I shall now give my findings in the factual matrix of present case.
23. PW1 is the star witness of prosecution who categorically deposed that accused and deceased were scuffling with each other and he intervened and pacified them. He further stated that when deceased was about to put keys in his e-rickshaw, accused Abdhesh took out a poker (sua) and attacked on the chest of deceased. Therefore, in view of the testimony of PW1, it has been proved on record that accused gave one poker blow on the chest of deceased. However, the circumstances in which the incident took place have been well captured in the CCTV footage Ex. AD3 (colly). In the said footage, it is clearly seen that on 04.10.2021 at 20:00:34 hours, accused Abdhesh @ Pappu came from alongwith his rickshaw and stopped at the spot; after some time, one person came and started talking to accused and thereafter both of them started quarelling. At 20:00:47 hours, deceased Arvind came alongwith his rickshaw and looked at both of them for sometime and thereafter he came down from his rickshaw and intervened in the said quarrel. At 20:01:54 hours, as soon as accused Abdhesh @ Pappu was leaving the spot alongwith his rickshaw, deceased Arvind and one unknown person stopped accused by catching his rickshaw. A quarrel took place between accused and deceased. At 20:02:40 hours, when accused was again leaving the spot, deceased pulled his rickshaw from behind and started manhandling the accused. At 20:03:30 hours, other public persons came at the spot and SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 15 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:15:02 +0530 pacified them. Both of them were again seeing arguing. At 20:04:30 hours, accused took out a sua from the under the seat of his rickshaw and both of them were leaving the spot alongwith their respective rickshaws. In the meantime, heated arguments again took place between both of them. At 20:55:22 hours, deceased took out a danda (phanti) from his rickshaw and started assaulting accused. Both of them are seen fighting while grappling each other near a divider. Though the incident of accused giving poker blow to deceased is not captured but it is the case of prosecution that during the process of fighting and grappling each other, the deceased stabbed victim with sua.
24. Therefore, on the basis of material available on record i.e. testimony of PW1, CCTV footage, following facts emerge as per the sequence:-
(i) At first, the deceased himself intervened in the quarrel/ argument taking place between accused and third person;
(ii) When accused was trying to leave alongwith his rickshaw, the deceased stopped him and started manhandling him;
(iii) Though accused took out a poker but did not use it at first instance rather it was deceased who started assaulting accused with a wooden plank;
(iv) Thereafter, both of them started grappling and fighting with each other near the divider.
25. In Dhirajbhai Gorakhbhai Nayak v. State of Gujarat (2003) 9 SCC 322, Hon'ble Apex Court while discussing the ingredients of Exception 4 of Section 300 IPC, held as under:
SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 16 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:15:10 +0530 "11. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self−control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 17 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:15:18 +0530 there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."
26. Further, in Pulicherla Nagaraju v. State of A.P. (2006) 11 SCC 444, Hon'ble Apex Court while deciding whether a case falls under Section 302 or 304 Part I or 304 Part II IPC, held as under;-
"29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 18 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:15:26 +0530 there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."
27. In my considered view, in the present incident also, the death had occurred without any premeditation when a sudden fight took place between accused and deceased. Further, it is also evident from CCTV footage that it was deceased who had intervened in the quarrel at first instance, stopped and manhandled accused when latter was trying to leave the spot alongwith his rickshaw and again assaulted him with a wooden plank. Therefore, seen in the light of aforesaid circumstances, it is clear that accused had no intention to kill the deceased and it appears that the unfortunate death of deceased occurred in the sudden fight which started between parties and accused did not take any undue advantage.
28. Therefore, the act of accused is well covered under Exception IV to section 300 IPC and in view of the testimony of PW1, it is held that the accused committed culpable homicide not amounting to murder by causing death of deceased. Having held so, it is to be seen whether the act would fall within part I or part II of section 304 IPC. In this regard, following undisputed facts may be taken note of:-
(i) Only one blow was given by accused to the deceased;
(ii) There was no pre-meditation of mind to commit murder;
(iii) It was only when deceased assaulted the accused, he picked up the weapon of assault i.e. sua which is a common tool kept by rickshaw pullers like accused for fixing/ repairing their rickshaw;
(iv) It is also not the case of prosecution that accused had uttered any such word at the time of alleged blow which would prove that he had SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 19 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:15:33 +0530 intention to kill the victim.
29. In view of the aforesaid factual matrix, I am of the considered view that it cannot be said that accused had any intention to commit the death of victim. Rather, in my view, it is a case where accused can only be imputed with sufficient knowledge that his act of giving poker blow on the chest of deceased may result in his death and therefore his act would fall within ambit of section 304(II) IPC and not 304(I) IPC. Reliance is placed upon judgment in case titled as Ajmal vs. State of Kerala, Crl. Appeal No. 1838/2019, where in an appeal against conviction inter alia u/s 302 IPC, Hon'ble Apex Court while converting the conviction of accused u/s 304 IPC, held as under:-
"Considering the statutory provisions laid down in IPC and the law on the point, we find that the present case falls into the category of a culpable homicide not amounting to murder falling under section 304 Part-II IPC for the following reasons:
(i) There was no pre-meditation of mind to commit murder.
(ii) All the accused were admittedly not armed when they stopped the vehicle of the deceased and his friends and compelled them to alight from the same.
(iii) It was during the verbal altercation at that stage that the three accused picked up the weapon of assault namely, sticks of casuarina tree and a brick from the road side.
(iv) Single blow was given to the deceased by the accused nos.1 and 2.
(v) The case set up for exhortation to kill the deceased has not been found to be proved.
(vi) Both the groups consisted of young men.
(vii) The High Court found that there was no unlawful assembly formed with a common object and accordingly had acquitted three other accused and also the present appellants SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 20 of 21 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.01 14:15:40 +0530 from the charge of unlawful assembly under section 149 IPC.
(viii) The appellants have been convicted with the aid of section 34 IPC."
30. To summarize, on the basis of material available on record including testimony of eyewitness, accused Abdhesh @ Pappu is held guilty of committing culpable homicide not amounting to murder as punishable u/s 304(II) IPC. Accordingly, accused Abdhesh @ Pappu stands convicted of offence u/s 304(II) IPC. Let parties be heard on the point of sentence.
31. Copy of judgment be provided to the convict as free of cost.
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2023.04.01 14:15:48
+0530
Announced in the open (ANUJ AGRAWAL)
Court on 1st April, 2023 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
SC No. 158/22, FIR No. 343/21, PS Sarita Vihar State vs. Abdhesh @ Pappu 21 of 21