Delhi District Court
State vs . Mukesh Page No. 1 Of 20 on 21 January, 2012
IN THE COURT OF SH. YOGESH KHANNA,
ADDITIONAL SESSIONS JUDGE - 02,
SAKET DISTRICT COURTS : NEW DELHI.
Date of Institution : 18122008
Judgment reserved for orders on : 07012012
Date of pronouncement : 21012012
Unique Case ID No. 02403R0943162008
SC No. : 148 / 2008
FIR No. : 361/2008
U/s. : 302 IPC
PS : Vasant Kunj
State
( Government of NCT of Delhi )
............................... Complainant.
Versus
Mukesh
S/o Shri Jai Kishan
R/o D450, Kusumpur Pahari,
Vasant Kunj,
New Delhi.
...............................Accused person.
J U D G M E N T
1. On receipt of DD No. 69A, SI Pradeep Rawat and Ct. Sachin of P.S Vasant Kunj, New Delhi reached CBlock, Kusumpur pahadi, near Raj Dairy, New Delhi where they found that two boys had fought with each other, one was taken by his father and another was taken by PCR Officials to Safdarjung Hospital, New Delhi. SI SC No. 148/ 2009 State Vs. Mukesh Page No. 1 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ Pradeep Rawat inspected the spot and found one grey colour tile stone with blood stains and a cycle chain, with white lock make Onida. However, no eye witness was found. Ct. Jitender then brought DD No. 6A and while leaving Ct. Jitender to guard the spot, SI Pradeep with Ct. Sachin went to Safdarjung Hospital, where he found Mukesh S/o Shri Sri Kishan, been declared dead. He then received the MLC of accused Mukesh S/o Shri Jai Kishan. In the meanwhile, the SHO also reached at the hospital. The statement of the father of the deceased was recorded ; Rukka under section 302 IPC, was sent through Ct. Sachin for registration of FIR. The SHO took over the investigation. Special messenger was sent to the senior officers.
2. Sri Kishan S/o Late Shri Badri Prasad, father of the deceased, made the following complaint :
"that I reside in house no. D420, Kusumpur Pahadi, Vasant Kunj, New Delhi and am father of two boys and a girl. My elder son Surender is not a normal child. My another son Mukesh, studies in 9th class and my daughter Jyoti is studying in government school at Kusumpur Pahadi, New Delhi. About six months ago, my son Mukesh had a quarrel with accused in a game and from there accused used to threaten my son and quarrel with him, time and again and had beaten my son SC No. 148/ 2009 State Vs. Mukesh Page No. 2 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ Mukesh. My son Mukesh had told me that accused is keeping enmity with him and tries to pick quarrels with him and had even threatened to kill him. I made complaint to Mr. Amavas, an uncle of accused, who tried to make the accused understand, but accused refused to listen. Two days ago, accused came to my house and threatened that whenever my son would meet him alone he would kill him.
Today at about 10:30 PM when I was going towards Rajinder Dairy, I saw accused quarreling with my son, with a knife in his hand and that my son was having a cycle chain and that both of them were fighting and giving knife and cycle chain blows to each other. As I went near to separate them, accused Mukesh gave a knife blow on the chest of my son. Thereafter, both of them fell on the road. Even my son had beaten the accused badly, with cycle chain. I brought my son in a TSR to Safdarjung Hospital, where my son was declared brought dead. In my presence, accused Mukesh was also brought at the same hospital.
The complainant gave statement dated 2372008 to SI Pradeep Rawat. FIR No. 361/2008, under section 302 IPC, was registered at P.S Vasant Kunj, New Delhi."
3. During the investigation, accused was arrested. After the completion of investigation, the chargesheet was filed. Since it is a Session's triable case, so was committed to Session's Court. On 1372009 charge under section 302 IPC was framed against accused.
SC No. 148/ 2009 State Vs. Mukesh Page No. 3 of 20
/home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/
4. In order to prove its case, the prosecution had examined as many as 22 witnesses. The statement of accused was also recorded under section 313 Cr.P.C wherein he denied his involvement in the crime. Before proceeding further, it would be appropriate for me to state in brief, the statements made by the witnesses.
PW1 Shri Sri Kishan, is the complainant.
PW2 Dr. Vikas Chauhan prepared MLC Ex.PW2/A of the deceased.
PW3 Shri Lal Mohd is an eye witness.
PW4 Shri Sugreev, identified the dead body vide his statement Ex.PW4/A. PW5 Dr. Navjyoti Barman proved the MLCs Ex.PW5/A and Ex.PW5/B of the accused. Accused also suffered simple injuries by blunt force.
PW6 ASI Sube Singh recorded DD No. 6A Ex.PW6/A ; DD No. 7A Ex.PW6/B and FIR No. 361/08 under section 302 IPC and proved its computerized copy as Ex.PW6/C. He also proved his endorsement on Rukka Ex.PW6/D. PW7 Ct. Raj Kumar proved the photographs Ex.PW7/A1 to Ex.PW7/A5 of the spot and its negatives as Ex.PW7/B1 to SC No. 148/ 2009 State Vs. Mukesh Page No. 4 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ Ex.PW7/B5.
PW8 Ct. Jitender Singh took DD No. 6A to the spot and gave it to SI Pradeep Rawat. He guarded the spot, when SI Pradeep went to the hospital. Later in his presence, the investigating officer seized one piece of blood stained stone and another piece of stone without blood, separately, and sealed it with the seal of PR, seized vide memo Ex.PW1/E. Cycle Chain with lock was also seized, after sealing with the seal of PR vide memo Ex.PW1/G. PW9 Dr. Alak Narayan examined the accused vide MLC Ex.PW5/B. PW10 W/Ct. Mamta, recorded the telephone call on the intervening night of 22/2372008, received at 23:10 hours from telephone no. 9818137473 and proved the PCR Form as Ex.PW10/A. PW11 HC Subhash Chand, MHC(M), proved the relevant entries in Register No. 19 regarding the deposit of the case property with him and sending it to FSL. The said entries are Ex.PW11/A to Ex.PW11/D. On 2782008 he sent the six pullandas of this case along with two sample seals to FSL Rohini through SI Kishore Pandey vide RC No. 73/21/08 Ex.PW11/E. PW12 Dr. Prem Kumar conducted the postmortem SC No. 148/ 2009 State Vs. Mukesh Page No. 5 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ examination and proved his report Ex.PW12/A. He deposed that injury no. 3 and corresponding injury to heart was sufficient to cause death in ordinary course of nature. He examined the knife and gave his report Ex.PW12/B, stating interalia, that the injuries inflicted on the body of the deceased and the cut marks on the clothes of the deceased were possible from the said weapon.
PW13 Ct. Tej Pal took the accused for medical examination. The sealed pulanda of the blood sample, as given to him by the doctor, was seized by the Investigating Officer vide seizure memo Ex.PW13/A. PW14 ASI Ram Kishan on the intervening night of 22/2372008, at about 11:30 PM, took accused, lying unconscious near the police post Kusumpur Pahari, to Safdrajung Hospital, Delhi.
PW15 HC Shyam Lal took DD No. 69A to Kusumpur Pahadi, New Delhi and gave it to SI Pradeep Rawat. DD No. 69A is Ex.PW15/A. PW16 HC Ranbir Singh was on patrolling duty on 2272008 at Kusumpur Pahadi, New Delhi. When he reached CBlock, Police Booth, he found one person involved in a quarrel lying on a bench in the street. He called PCR and got the injured accused removed to SC No. 148/ 2009 State Vs. Mukesh Page No. 6 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ hospital by PCR.
PW17 Ct. Hardeep Singh, prepared the scaled site plan Ex.PW17/A of the spot.
PW18 Inspector T.R. Poonia, on 2372008, prepared inquest papers ; filled in Form No. 25.35 Ex.PW18/A ; request for postmortem Ex.PW18/B and handed over the dead body vide receipt Ex.PW1/L to the relatives of deceased.
PW19 SI Kishore Pandey, on 2182008, collected the inquest papers ; postmortem report ; subsequent opinion ; sealed jar with the seal of hospital and gave it to IO ; the Investigating Officer vide memo Ex.PW19/A. On 2782008 he deposited six sealed pulandas along with three sample seals in the FSL Rohini.
PW20 SI Pradeep Rawat reached at the spot with Ct. Sachin at about 11:20 PM and found no one present there. He left Ct. Jitender to guard the spot and reached Safdarjung Hospital. He found Mukesh S/o Shri Kishan had expired, while the accused was taking treatment. He recorded the statement Ex.PW1/A of Shri Kishan and prepared Tehrir Ex.PW20/A. He sent Ct. Sachin to the police station for registration of the FIR. Inspector S.S Hasan, SHO also reached the hospital and took over the investigation. Later, SI Pradeep Rawat witnesseth the arrest of the accused vide memo SC No. 148/ 2009 State Vs. Mukesh Page No. 7 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ Ex.PW1/B ; his personal search vide memo Ex.PW1/C and his disclosure statement Ex.PW1/D. Accused produced his blood stained TShirt, seized vide memo Ex.PW1/H. Thereafter, accused was brought to spot and he identified the place of incident vide memo Ex.PW1/E. Accused Mukesh also got recovered a knife from a drain near the spot. It was in two parts viz blade and handle, separated. The sketch Ex.PW1/J of the pieces of the knife was prepared. The knife was sealed in a pullanda and seized vide memo Ex.PW1/F. Accused got recovered a cycle chain from near a Rehri at the spot, sealed in a pullanda and seized vide memo Ex.PW1/G. In his presence, one grey colour marble piece with blood stains and another such piece, without blood was seized vide memo Ex.PW1/I. All the pullandas were sealed with the seal of PR. Seal after used was given to SI Pradeep Rawat. Crime Team also inspected the spot. SI Pradeep recorded the statement of witnesses and prepared all the documents i.e. Ex.PW1/A to Ex.PW1/I on the directions of the Investigating Officer.
During his cross examination, PW20 deposed that he recorded the statement of complainant before 3 AM and send the Rukka at about 3:30 AM from the hospital and that Ct. Sachin returned to hospital along with the copy of FIR and Rukka SC No. 148/ 2009 State Vs. Mukesh Page No. 8 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ at about 5:30 AM. PW20 admitted that the spot was in his knowledge prior to preparing of pointing out memo. He deposed that he can not give any reason as to why the Investigating Officer did not use his seal for sealing the pullandas.
PW21 Inspector S.S Hasan, Investigating Officer, reached the hospital on receipt of DD no. 69A. He met SI Pradeep Rawat, Ct. Sachin, Shri Kishan, father of deceased. SI Pradeep Rawat recorded the statement of complainant and prepared Tehrir. The FIR was then got registered. Accused Mukesh was apprehended in the hospital itself. He was arrested vide memo Ex.PW1/B ; his personal search was conducted and he led to the spot and got recovered a knife from a drain near the spot. The said knife had broken while causing injuries. The shirt of the accused was seized vide memo Ex.PW1/H. Crime Team inspected the spot in his presence and took photographs. He also seized one grey colour tile with blood and one portion, without blood, vide memo Ex.PW1/I. Cycle chain with lock of Onida was seized vide memo Ex.PW1/G. He prepared site plan Ex.PW21/A at the instance of the complainant. He recorded the statement of public witness Lal Mohd and then returned to the P.S and deposited the case property with the MHC(M). The blood sample in gauze of accused SC No. 148/ 2009 State Vs. Mukesh Page No. 9 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ was seized vide Ex.PW13/A. PW21 also seized two sealed pullandas containing clothes and blood sample of deceased Mukesh, along with sample seal of hospital vide memo Ex.PW21/B. He also obtained subsequent opinion of the doctor and on 2782008 he sent these pullandas to FSL for examination. He also got prepared the scaled site plan and filed the challan after completion of investigation. He proved the FSL reports Ex.PW21C1 to Ex.PW21/C3 ; the broken knife in two pieces viz., handle and blade Ex.P1 and Ex.P2 ; the Tshirt of accused as Ex.P3 ; and the cycle chain with lock of Onida as Ex.P4.
During his cross examination he deposed that did not join the public witnesses at the time of recovery of knife as none was available at the spot at that time. He signed Register No. 19 at the time of deposit of pullanda. He reached the spot at about 5:30 PM and remained there till 8 PM or 8:30 PM.
PW22 Ct. Sachin reached the spot with SI Pradeep Rawat and from there they went to hospital where accused was arrested but he could not identify the accused due to lapse of time.
5. After examining of the witnesses of the prosecution, statement of accused, under section 313 Cr.P.C, was recorded. The SC No. 148/ 2009 State Vs. Mukesh Page No. 10 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ accused denied his involvement in the crime stating , interalia, that recovery was planted upon him ; the real culprit escaped from the spot ; he has been falsely implicated in this case as he was lying unconscious near the spot ; someone shifted him to hospital where he was arrested and that police officials took his TShirt from him ; he did not fought with deceased nor did he stabbed him.
6. On the basis of the above depositions, it is argued by the Ld. Additional Public Prosecutor that the accused be convicted for the offence under section 302 IPC. Ld. Counsel for the accused argued that there is no iota of evidence against the accused, so he be acquitted.
7. I have carefully examined the statement of witnesses ; heard the arguments advanced by both the sides and perused the material available on record.
8. PW2 Shri Kishan, the complainant and PW3 Shri Lal Mohd, an eye witness are the important witneses and their testimonies would clinch the issue.
PW1 had deposed that on 2272008 at about 10:30 PM he SC No. 148/ 2009 State Vs. Mukesh Page No. 11 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ saw accused Mukesh having a fight with his son. They use to have quarrels earlier and that accused had given beatings to his son even earlier.
PW1 deposed that when he reached the spot, he saw his son Mukesh was moving a cycle chain in his hand in an assaulting manner and accused was running after his son with a knife in his hand. Thereafter, accused gave a knife blow on the chest of his son and they both fell down. He took his son to Safdarjung hospital in a TSR where he was declared brought dead. He gave his statement Ex.PW1/A to the police and in his presence accused was arrested. At the instance of accused, a knife in two pieces, was recovered from a drain near the spot and was seized vide memo Ex.PW1/F. The cycle chain was also seized from the spot vide memo Ex.PW1/G. In his presence, a TShirt of the accused was also seized. Police lifted blood from the spot vide memo Ex.PW1/I. He proved the butt and blade of knife as Ex.P1 and P2 ; red colour T Shirt of accused as Ex.P3 ; cycle chain with lock as Ex.P4 and clothes of deceased as Ex.P5.
During his cross examination, he deposed that the distance between his house and the spot is about 100/200 feet and that he had seen the accused beating his son on earlier occasions at SC No. 148/ 2009 State Vs. Mukesh Page No. 12 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ different places. He deposed that he used to pacify the accused, asking him not to have any quarrel with his son and had even told accused that he would report the matter to the police, but once accused had exhorted that he would kill his son one day. He also complained to the uncle of accused. He further deposed that he ran to nab the accused to save his son but before he could reach there, accused had stabbed his son. He however admitted the suggestion that accused received few cycle chain blows from his son during the incident.
Further, PW3 Lal Mohd, an eye witness, deposed that on 2272008, at about 10:30 PM, he was present near Rajinder Dairy along with his vegetable cart, when he saw the accused and the deceased, having a fight with each other. Accused Mukesh picked a knife from his cart and gave a blow on the chest of deceased. Both of them then fell down on the road. On the next day, police recorded his statement and he identified the accused and also the knife in two pieces Ex.P1 and Ex.P2, which he had kept in his cart.
However, during his cross examination, commenced after lunch hours, PW3 deposed that there was some darkness at the place of incident and that the distance between his cart and the spot was about 20 paces, but even during darkness he was able to SC No. 148/ 2009 State Vs. Mukesh Page No. 13 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ see and recognize the accused and the victim. He further deposed that he saw there was a fight going on but he can not say as to who started the fight or that by which object they hit each other, but however, they both fell on the road. However he later deposed that he did not see accused giving a knife blow to the deceased.
Since PW3 was resiling from his earlier statement, so he was allowed to be cross examined by the Ld. Additional Public Prosecutor. PW3 admitted that accused lifted a knife from his cart. He admitted that deceased was hitting the accused with his cycle chain. However, he did not see if the accused hit the deceased with knife but he admitted that knife, he saw in the court, was the same knife, which belong to him, but picked up by the accused during the incident.
A bare perusal of the statement of both these witnesses would show that the relations between the accused and deceased were not good and on the day of incident they both met near the spot and they started fighting. During the fight, son of the complainant, gave beatings to the accused with a cycle chain and whereas accused picked up a knife from the cart of PW3 and hit the same on the chest of the deceased.
Though, ld counsel for the accused submit that PW3 had SC No. 148/ 2009 State Vs. Mukesh Page No. 14 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ turned hostile and had admitted that he had not seen the accused stabbing the deceased but if we read the statement of PW3 as a whole, especially when he says that accused during the fight, picked a knife from his cart and that besides deceased and accused, no one else was fighting and that both of them were hitting each other and that the knife Ex.P2 and Ex.P3, was recovered at the instance of accused, is the same knife which the accused picked up from his cart, leads to only one conclusion that accused gave a knife blow to deceased during the fight. Further, the deposition of PW1, the complainant, who is also an eye witness, very fairly had deposed that his son was also fighting with cycle chain and was giving blows to accused.
Further, PW1 also identified the knife, in two parts viz., blade and handle as Ex.P1 and Ex.P2. The said knife Ex.P1 and Ex.P2 was examined by the doctor and per his subsequent opinion Ex.PW12/B, the doctor admitted that the injuries on the chest of the deceased and the cut marks on the shirt of the deceased are possible with the knife Ex.P1 and Ex.P2.
Thus, by the corroborative statement of PW1 and PW3, it stands proved that the deceased was stabbed on the chest by the knife Ex.P1 and Ex.P2 ; used by accused. The statements of PW1 SC No. 148/ 2009 State Vs. Mukesh Page No. 15 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ and PW3 are trustworthy, as both had deposed not only against the accused but also against the deceased that he was also beating the accused with a cycle chain.
The MLCs Ex.PW5/A and Ex.PW5/B of the accused show that the accused suffered various injuries in the incident. Both these witnesses have admitted that there was a fight between the deceased and the accused. It is also admitted by the PCR official PW14 that when he reached at the spot, he saw the accused lying unconscious and he took taken the accused to hospital and got him admitted there.
Thus, the statements of PW1 and PW3 coroborate with the medical evidence of deceased and even accused. It shows that both were fighting and giving blows to each other with whatever weapons they had in their hands. Nothing has come out in his cross examination, of PW1 / PW3 which could lead to disbelieving the case of the prosecution. It stands proved that the accused also suffered injuries, as described in the MLC Ex.PW5/A and Ex.PW5/B from the hands of the deceased at the time of the incident and that the deceased suffered injuries from the hands of accused.
9. Though, the accused alleges that he was not involved in the SC No. 148/ 2009 State Vs. Mukesh Page No. 16 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ incident and in his statement under section 313 Cr.P.C he has alleged that there was some anti social elements quarreling / fighting with each other and in a cross battle, he also sustained injuries. But per FSL reports Ex.PW21/C1 to Ex.PW21/C3, the T Shirt of the accused was having the blood of BGroup, which in fact, matches with the blood group of deceased and it further corroborates with the statements of PW1 and PW3 that only deceased and accused had fought with each other at the time of incident and thus it falsifies the story of the accused that he was beaten by some antisocial elements and got injured in a cross battle or that he did not fight with deceased nor did he stab him.
10. The deposition of PW1 and PW3 had, thus, given a clear picture of the entire incident as follows :
(a) the deceased and the accused fought with each other ;
(b) deceased was giving blows to accused with cycle chain of iron ;
(c) during the fight, the accused picked up a knife from the vegetable cart of PW3, standing nearby ;
(d) accused gave a knife blow on the chest of the deceased ;
(e) both of them then fell on the road ;SC No. 148/ 2009 State Vs. Mukesh Page No. 17 of 20
/home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ (f ) deceased was picked up by his father and the accused by PCR officials and both were taken to hospital ;
(h) the deceased died due to injury ;
and
(h) Knife Ex.P1 and Ex.P2, was got recovered, at the instance of accused, from a drain near the spot.
11. Now in the light of above proven circumstances the question before the court is if the accused be convicted for an offence under section 302 IPC or he could get the benefit of exception no. 4 of section 300 IPC, which runs as under :
" Culpable homocide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault."
12. Now since it is admitted by PW1 and PW3 that they saw both the accused and deceased fighting with each other and that SC No. 148/ 2009 State Vs. Mukesh Page No. 18 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ none could tell as to who started the fight, so it certainly proves that it was a sudden fight between two, in a heat of passion upon a sudden quarrel, and both of them started causing injuries to each other and that it was during the fight that the accused picked up a knife from the vegetable cart standing nearby and hit deceased on his chest.
Now, let me examine if the act of accused was pre meditated or not.
PW1 and PW3 admitted that the deceased was also hitting accused with a cycle chain. It is also an admitted case that accused did not bring any knife from his house and was not carrying it with him. It was only during the fight that accused picked up the knife Ex.P2 and Ex.P3 from a vegetable cart, standing nearby, and during the fight stabbed the deceased at his chest with the said knife.
The facts show the act of accused was not premeditated. The accused did not act cruelly, since he stabbed the deceased only once during the fight. Had he brought knife with him from his house or had he given more stab wounds to the deceased, even after hitting on chest of deceased, I would have thought that accused acted in a cruel or unusual manner. But, admittedly, the SC No. 148/ 2009 State Vs. Mukesh Page No. 19 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/ entire incident happened during a fight, at the spur of the moment, where one was beating the other by an iron cycle chain and that the other one picked up knife found nearby and hit the first one.
Thus, the facts clearly reveal that accused is entitle to the benefit of exception no. 4 of section 300 IPC, hence is liable to be convicted for the offence of culpable homicide not amounting to murder.
The accused is thus, convicted under Part1 of Section 304 IPC, as considering the previous enmity between the accused and the deceased, the hit on the chest of deceased, would only indicate that the accused intended to give such injury to deceased as was likely to cause death. Hence, convicted.
Announced in the open court ( YOGESH KHANNA ) today i.e. 2112012. Additional Sessions Judge - 02 Saket Courts, New Delhi.
SC No. 148/ 2009 State Vs. Mukesh Page No. 20 of 20 /home1/reader1/Court No. 302/2012/Jan, 12/judgment ( Jan,12)/