Delhi District Court
State vs Babar Khan Etc on 16 April, 2025
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-08,
WEST DISTRICT TIS HAZARI COURTS, DELHI
Presided by: Hem Raj, DHJS
CNR No. DLWT01-000027-2012
State Vs Babar Khan & Ors
SC No. 55944/2016
FIR No. 108/2012
PS: Khyala
U/s 304/308/34 IPC
In the matter of:-
State
Versus
1. Babar Khan
S/o Sh. Sharif Khan @ Shahid Khan
R/o New F-223, Raghubir Nagar, Delhi
2. Umar Khan
S/o Sh. Abdul Gafur Khan
R/o S-221/183, Vishnu Garden, Delhi
3. Shahid Khan
S/o Sh. Abdul Ali
R/o S-221/183, Vishnu Garden, Delhi
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 1/52
4. Hasim
S/o Sh. Abdul Ali
R/o S-221/183, Vishnu Garden, Delhi
5. Bhura @ Asraf
S/o Sh. Abdul Ali
R/o S-221/183, Vishnu Garden, Delhi
Address mentioned in supplementary chargesheet
as New F-62, Raghubir Nagar, Delhi.
.......Accused Persons
Date of Institution of case : 24-09-2012
Date of reserving for Judgment : 13-02-2025
Date of pronouncement of judgment : 16-04-2025
Appearance:
For the State : Sh. J.S Malik, Ld. Addl. Public
Prosecutor.
For accused persons : Sh. Mukesh Kalia and Sh. Chetan Pangasa,
Ld. Counsel.
JUDGMENT
1. The accused persons namely, Babar Khan, Umar Khan, Shahid Khan, Bhura and Hasim were arraigned as accused for the offences u/s 323/341/308/304/427/34 IPC in a charge-sheet filed against them by SHO PS Khyala.
The case of the prosecution:
2. 1 The facts of the prosecution case, in brief are that on receipt of DD No. 31A, on 22.05.2012, PW-4 HC Phool Chand alongwith State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 2/52 PW-21 Ct. Raj Kumar reached at the spot at Vishnu Garden where he found one Scorpio car bearing no. UK07AJ 5999 colour white with broken windows. Inside the car, bricks and one broken baseball bat were also found. It came to their notice that few injured had already been taken to Kukreja hospital. PW-4 called the crime team at the spot and got the photographs done. He left beat Constable Sita Ram and alongwith Ct. Raj Kumar he reached at Kukreja Hospital. In the hospital, he found one Braham Singh Chandela and Surender Singh admitted with the history of assault. Both the injured were declared unfit by the doctors. However, another injured namely complainant PW-3 Sh. Jitender was found to be fit for statement. 2.2. In the hospital, PW-3 got his statement Ex.PW-3/A recorded wherein he stated that on 22.05.2012, his uncle Jagbir alongwith Braham Chandela PW-7 and Ghanshyam came to Paschim Vihar in the aforesaid Scorpio car and thereafter he alongwith them reached at the office of Jagbir at MA Gurudwara. At about 3 p.m, they all left for Lazeez Chicken Dhaba infront of Bus stand of route no. 857. However, he did not enter into the restaurant as it was a Tuesday. Thereafter, they came back at the office. When they were about the leave the office in the car, one Shahid came there and threw a brick on the front windscreen. When Braham Chandela came out of the car, accused Umer attacked him with the baseball. In the meanwhile, accused Sahid alongwith his 3-4 companions came there. They attacked them from the bricks lying at the spot and with the dandas. Braham Chandela and Ghanshyam entered into the car, but accused Sahid, Umar and their companions attacked the car with bricks and dandas. Hearing the commotions, one Surender and Dev Kumar reached at the spot to rescue them. However Sahid, Umar and their State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 3/52 companions started beating them with bodily blows and dandas. At that time, one of the companions picked up one brick from the road and hit it on the head of Surender. Public persons gathered there. One Mehtab Singh took Braham Chandela and Surender to Kukreja Hospital and he followed them there.
2.3. On the basis of his statement, the present FIR u/s 308/427/323/34 IPC was registered. Injured Surender Singh was initially given medical treatment at Kukreja Hospital and thereafter at Gangaram Hospital. However, during the medical treatment, he succumb to his injuries on 10.06.2016. The cause of death was opined as septicemia alongwith respiratory failure caused by pulmonary embolism developed secondary to the injuries inflicted in assault. All the injuries were declared to be ante-mortem and the time since death was found consistent with the hospital timing of death.
2.4. After the completion of the investigation, a chargesheet for the offence u/s 304/427/323/341/34 IPC was filed forwarding three accused namely Sahid, Umar Khan and Babar. Later on, accused Bhura and Hasim were arrested and they were forwarded for trial by the supplementary charge-sheet.
The charge against the accused persons:
3. Accused persons namely Babar Khan, Umar Khan and Shahid Ali did not plead guilty to the charges for the offences u/s 323/34 and u/s 304/34 framed on 24.09.2012 and claimed trial. Accused Bhura @ Asraf and Hasim also did not plead guilty to the charges for the offence u/s 323/324 IPC and u/s 304/34 IPC framed on 07.08.2014 and claimed trial.
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 4/52
4. A supplementary charge-sheet came to be filed on record on 28.07.2014 against accused Bhura @ Asraf and Hasim for the offence u/s 174A IPC. They evaded their arrest and were not apprehended during the investigation of the case and accordingly, on 31.05.2013 they were declared as proclaimed offender by the Ld. MM, West. Later on, both the accused were arrested. Accordingly, on 12.09.2023, a separate charge for the offence u/s 174A IPC was framed against both the accused. They both pleaded not guilty for the aforesaid offence and claimed trial.
The evidence by the prosecution:-
5. To prove the afore-mentioned charges against the accused persons, the prosecution led the following oral as well as documentary evidence: -
Oral evidence:
PW-1 ASI Bal Krishan The then duty officer whogot registered the present FIR.
PW-2 HC Ram Avtar MHC(M), who proved different entries regarding the case property.
PW-3 Sh. Jitender Injured who deposed about the incident in this case.
PW-4 HC Phool Chand He joined the initial investigation.
PW-5 Sh. Manoj The eye witness who deposed about the
Chandela incident.
PW-6 Inspector Pawan The IO who filed the chargesheet in the Sharma court.
PW-7 Sh. Braham One of the injured, who deposed about
Chandela the incident
PW-8 Sh. Vikas Registered owner of car bearing no.
UK-07AJ-5999.
PW-9 Ct. Virender PCR operator who received the message
regarding quarrel on the spot
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 5/52 PW-11 Sh. Vinod He identified the dead body of his cousin Surender Singh in DDU hospital.
PW-12 Inspector He prepared the site plan of the spot.
Mahesh Kumar
PW-13 Retired ASI He recorded DD No.31 A on the basis
Babu Ram of PCR call
PW-14 HC Jag Jeevan He recorded DD No. 30A on the
message received from Ganga Ram
Hospital regarding admission of
Surender Singh
PW-15 Sh. Mehtab He took all the injured to Kukreja
Hospital and got them admitted there.
PW-16 Dr. Rakesh He proved MLC of Surender Singh and
Tiwari Braham Singh Chandela
PW-17 Dr. Komal Conducted postmortem on the dead
Singh, HOD/ Forensic bodyof deceased Surender Singh.
Medicine, DDU hospital
PW-18 HC Rajesh The photographer, Mobile Crime Team
who took 11 photographs of the spot
PW-19 Dr. Anil, CMO He proved MLC of patient Jitender and Kukreja Hospital Surinder prepared byDr. Maninder PW-20 HC Anil Kumar The finger print proficient, who lifted the chance prints from the spot.
PW-21 Ct. Raj Kumar He deposed about the investigation. PW-22 Ct. Vijender Pal He deposed about the investigation.
PW-23 Shyam Veer Brother of deceased Surender Singh,
who identified dead body of deceased in
DDU hospital
PW-24 HC Pradeep He joined the investigation with IO SI
Kumar Arvind Kumar during the postmortem
examination of deceased Surender
Singh
PW-25 Inspector Rajesh He conducted further investigation in Kumar the case and recorded statements of witnesses PW-26 HC Sudhir He deposed about the investigation..
PW-27 SI Arvind Conducted further investigation in the Kumar case.
PW-28 Ms. Imrana, Sr. Prepared the FSL result Scientific Officer (Biology) FSL PW-29 Dr. Deepshikha, Proved MCL of patient Ghanshyam State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 6/52 Sr. Medical Officer, prepared byDr. Amey.
DDU Hospital
PW-30SI Surender He deposed about the arrest of Bhura @
Singh Ashraf, proclaimed offender in this
case.
PW-31 SI Yadram Conducted PO proceedings in respect of
accused Bhura and Hasim
PW-32 HC Sajjan Yadav Deposed about the investigation qua the arrest of accused Bhura @ Asraf, who was declared PO.
Documentary evidence:
Ex. PW-1/A Photocopy of FIR No. 108/12 PS Khyala
Ex.PW-1/B Endorsement of rukka
Ex. PW-2/A Entry at serial no. 767 in register no. 19
Ex.PW-2/B Entry at Sl. no.813 in store room register of PS
Ex. PW-2/C Entry at Sl. no.826 in store room register of PS
Ex. PW-2/D Entry at Sl. no.950 in store room register of PS
Ex. PW-2/E Entry at Sl. no.951 in store room register of PS
Ex. PW-2/F Road certificate no. 132/21/12
Ex.PW-2/G Receipt of FSL.
Ex.PW-2/H Photocopy of relevant entries of register no. 19.
&Ex.PW-2/I
Ex. PW-3/A Statement of Jitender.
Ex.PW-3/B Seizure memo of wearing shirt of Jitender.
Ex.PW-4/A Endorsement on the statement of injured
Jitender of HC Phool Chand.
Ex.PW-5/A Seizure memo of clothes of deceased namely
Surender
Ex.PW-5/B Dead body identification statement of Manoj
Chandela, brother of deceased Surender.
Ex.PW-7/A Arrest memo of accused Babar Khan
Ex. PW-7/A1 to Eleven photographs of Scorpio car no. UK07-
Ex.PW-7/A11 AJ-5999
Ex.PW-7/B Arrest memo of accused Sahid
Ex. PW-7/C Seizure memo of blood stained clothes of
Braham Chandela
Ex.PW-7/D Seizure memo of blood sample of Braham
Chandela
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 7/52 Ex.PW-8/A Superdarinama qua Scorpio Car bearing registration no. UK-07AJ-5999 Ex.PW-8/B RC of Scorpio Car bearing registration no. UK-
07AJ-5999
Ex.PW-8/C Copy of original RC of Car bearing
registration no. UK-07AJ-5999
Ex.PW-9/A PCR form regarding the information of quarrel
received on 22.05.2012.
Ex. PW-10/A PCR form regarding information of quarrel
received on 22.05.2012.
Ex.PW-11/A Dead body identification statement of Vinod,
cousin brother of deceased Surender Singh.
Ex.PW-12/A Scaled site plan
Ex.PW-13/A DD No. 31 A dated 22.05.2012 regarding
quarrel.
PW-14/A DD No. 30A dated 10.06.2012 regarding
admission of Surender Singh in Ganga Ram
Hospital.
Ex.PW-16/A Endorsement on the MLC of Surender Singh.
Ex.PW-16/B MLC of injured Braham Singh Chandela.
Ex.PW-17/A Postmortem report no. 611/12 of deceased
Surender Singh.
Ex.PW-18/A Negative of 11 photographs of vehicle.
Ex.PW-19/A MLC of patient Jitender.
Ex.PW-19/B MLC No. 914/2012 dated 08.06.2012 prepared
by Dr. R. Kukreja
Ex. PW-20/A Scene of Crime visit report by Mobile Crime
Team
Ex. PW-21/A Seizure memo of Scorpio bearing registration
no. UK07AJ 5999
Ex.PW-21/B Arrest memo of accused Umar Khan
Ex.PW-21/C Personal search memo of accused Umar Khan
Ex.PW-21/D Disclosure statement of accused Umar Khan
Ex.PW-21/E Pointing out memo cum seizure memo of
baseball bat and bricks.
Ex. PW-21/F Shirt of injured Jitender.
Ex. PW-21/G Site plan
Ex.PW-22/A Personal search memo of accused Sahid Ali
Ex.PW-22/B Personal search memo of accused Babar Khan
Ex.PW-22/C Disclosure statement of accused Sahid Ali
Ex.PW-22/D Disclosure statement of accused Babar Khan
Ex.PW-22/E Pointing out memo of accused Sahid Ali
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 8/52 Ex.PW-22/F Copy of RC regarding the deposition of case property in FSL, Rohini.
Ex. PW-22/G Acknowledgment of case acceptance Ex.PW-24/A Seizure memo of sealed envelop containing blood in gauze piece bearing the seal of DFMT DDU HOSPITAL.
Ex. PW-27/A Supplementary statement of complainant
(OSR) Jitender.
Ex.PW-27/B Request of IO for postmortem examination on
the dead body of Surender Singh.
Ex.PW-27/C The brief facts of the case and relevant
(colly) documents annexed with application for
postmortem examination of deceased
Ex.PW-27/D Seizure memo of blood sample of injured along
with sample seal. (Though pointing out memo
at the instance of accused Babar Khan is also
27/D) check fold document)
Ex.PW-28/A FSL report prepared by Ms. Imrana, Sr.
Scientific Officer (Biology), FSL.
Ex.PW-28/B FSL report dated 28.10.2013
Mark PW-29/A MLC No. 9927 of Ghanshyam
Ex.PW-30/A Arrest memo of accused Bhura.
Ex.PW-30/B Personal search memo of accused Bhura.
Ex.PW-30/C Disclosure statement of accused Bhura.
Ex.PW-30/D Pointing out memo of place of incident by
accused Bhura
Ex.PW-31/A Court order regarding proceedings u/s 82 Cr.P.C
of accused Hasim and Bhura.(though DD No.
31 A dated 22.05.2012 has also been Ex.as PW-
31/A)
Ex.PW-31/B Order of Court regarding proceedings u/s 83
Cr.P.C of accused Hasim and Bhura.
Ex.PW-31/C The order of Court declaring accused Hasim
and Bhura as PO.
Ex.PW-31/D Arrest memo of accused Hasim.
Ex. PW-31/E Personal search memo of accused Hasim.
Ex.PW-31/F Disclosure statement of accused Hasim.
6. At this stage, it would be apt to discuss the testimonies of PW-3 Jitender, PW-5 Manoj Chandela, PW-7 Braham Chandela, State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 9/52 PW-15 Mehtab, PW-17 Dr. Komal Singh and PW-27 IO/SI Arvind Kumar, who are the important witnesses to the prosecution. 6.1. PW-3 Jitender is the complainant in this case and the FIR was registered on his complaint Ex.PW-3/A only. He deposed consistently to what he stated in his complaint. 6.2. However, record reveals that he was partly examined-in-chief on 15.01.2013 and his further examination-in-chief could not take place as he unfortunately expired on 17.10.2013. 6.3. PW-5 Sh. Manoj Chandela deposed that on the day of incident, he was going to his restaurant from his house and at about 3.30 p.m when he reached at H. No. 240 near Gurudwara Mandir, he saw accused persons namely Babar Khan, Bhura and Sahid and other accused persons present in the court were causing injuries to Surender, Jitender and Braham Chandela with bricks, stone and baseball dandas. Having seen that public persons had gathered, they all run away from there. He called Mehtab to bring his car, who came at the spot and thereafter he took Surender, Braham Chandela and Jitender to Kukreja Hospital. Doctor handed over to him the clothes of injured which he produced to the IO. He further deposed that his brother Surender had sustained serious injuries on his head caused by accused persons and he was referred to Sir Ganga Ram Hospital where he stayed for about 20-22 days and expired thereafter.
6.4. In his cross-examination he stated that the distance between his house and the restaurant was about two and half kilometer. He was maintaining four wheeler on those days. He further stated that from all the accused persons only accused Bhura was known to him prior to the incident. He also did not know the complete and actual State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 10/52 name of Bhura. He stated that when he reached the spot, the accused were giving beatings to Surender, Jitender, Braham Chandela and Dheeraj. He did not try to chase any of them and further stated that Mehtab, his son Braham Chandela and his nephew. He further stated that all the accused persons ran away from the spot after 5-7 minutes of him reaching at the spot. He further stated that the fight was going on at a distance of 500 meters from Lazeez Dhaba. He did not receive any injury and he also did not make any call to the police from his mobile. He did not remember the mobile number of Mehtab as well. He further stated that Mehtab reached the spot after 3-4 minutes. The distance between the Kukreja hospital from the spot was about 2 kilometer. He also did not inform the police after reaching Kukreja Hospital. He stated that Jitender, Braham Chandela and Surender were removed by him in i-10 car of Mehtab. 6.5. He further stated that on the first day police did not make any inquiry from him and he also did not give any statement to the police. He stated that in his presence, the police did not make any inquiry from Braham Chandela and Jitender and that Jitender was also discharged from the hospital on the same day. He stated that he did not make any statement to the police on May, 2012 and till 12.06.2012. He further stated that accused had lodged an FIR against Jitender, Dheeraj, Braham Chandela, Ghanshyam for the said incident. He was confronted with his statement u/s 161 Cr.P.C regarding the fact that accused persons caused serious injuries on his head. He did not mention names of the accused persons, who caused injuries to the doctor. He further stated that he came to know about the names of other accused persons from Braham Chandela and Surender. He did not give any description of the remaining State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 11/52 accused persons to the police. He further stated that he had no previous enmity or quarrel with accused Bhura nor his brother had Surender had any dispute with accused.
6.6. PW-7 Sh. Braham Chandela deposed that all the accused persons namely Babar, Sahid, Umar, Bhura, Abdul Gaffar Khan, Abdul Ali and Hasim were also having iron rods, sword and danda in their hands. The accused persons took out Ghanshyam, Jagbir, Jitender and him from the Scorpio Car and attacked upon them with the said weapons. In the meantime, Surender also reached there and when he tried to save them, all the accused persons attacked upon him with the said weapons. Accused Babar hit the brick on the head of Surender. PW-7 further deposed that accused Sahid hit danda on his both the hands, head and forehead near the right eye. All the said accused persons hit with iron rods and stones on all the parts of his body. He deposed that all the accused persons present in the court, caused injuries to him and his friend with weapons. He stated that he did not remember anything else in the case.
6.7. PW-7 was cross-examined by the Ld. Prosecutor as he resiled from his statement given to the police. In his cross-examination by Ld. Prosecutor, he admitted that he had stated to the IO that when he was sitting in the office of his friend Jagbir, his other friend namely Dheeraj @ Dev and Ghanshyam also reached there in Scorpio Car no. UK-07AJ-5999. Thereafter, he alongwith his friends namely Ghanshyam, Jagbir and Jitender left the office at about 3 p.m and reached at Lazeez Chicken Dhaba near 857 bus stand, Khyala for taking meal. He admitted that on the issue payment, some arguments took place between them and one Muslim boy namely Umar, who was earlier known to him. He further admitted that thereafter they State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 12/52 went to the office of Jagbir and when they were returning to their home in the said Scoprio car, Sahid came infront of the way and hit a brick on the front glass of the car. He also admitted that he got down from the car, Umar attacked upon him with baseball bat. In the meantime, Bhura and Hasim, brothers of Sahid and Babar reached there and attacked him with stones and bricks lying nearby.
When Ghanshyam got down from the car to save him, accused persons also attacked him with bricks an dandas. PW-7 admitted that accused Bhura, brother of Sahid took a brick and hit the same on the head of Surender and blood oozed out from his head. On raising alarm, all the accused persons ran away from the spot. He admitted that his son Mehtab Singh and and Manoj Chandela also reached the spot, who took him and Surender to Sir Ganga Ram Hospital and that during treatment, Surender expired. He admitted his signatures on the arrest memo Ex.PW-7/A and Ex.PW-7/B of accused Babar Khan and Sahid respectively. PW-7 further admitted that on 13.06.2012, he handed over his blood stained clothes i.e. shirt and pant to the IO. He admitted that on 14.07.2012, he had gone to DDU hospital where his blood sample was take by the doctor or that on 07.07.2014, he identified accused Hasim in police custody at Tis Hazari Courts.
6.8. PW-7 was cross-examined by accused persons on 14.12.2018. He deposed that he reached the hospital on 22.05.2012 and he was discharged from the hospital on the next day at about 5 p.m. He did not disclose the number and names of the assailants to the doctor when the MLC was prepared. He deposed that accused Hasim was known to him prior to 22.05.2012 and accused Umar Khan was known to him 3-4 years prior to 22.05.2012 and that he did not State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 13/52 know the names of the parents, brothers and sister of Hasim. He deposed that perhaps on 25.05.2012, he was called by the police for recording his statement and on the same day, he was taken to the hospital. He had made two statements, the first on 23.05.2012 and the second on 25.05.2012. However, the court observed that there was no statement u/s 161 Cr.P.C dated 22.05.2012 and 25.05.2012 of PW-7 available on judicial record.
6.9. He further stated that Jitender had made call to the mobile phone of Jagbir as he was not having any mobile on 22.05.2012. He further deposed that it took them about half an hour to reach Dhaba at Raghubir Nagar where they took lunch while returning and they stayed in the Dhaba for about 15 minutes. He noticed Mohd. Umar having lunch in the Dhaba at that time.
6.10. PW-15, Sh. Mehtab deposed that on 22.05.2012, he was present near his house and at about 3.30 - 4 p.m, he received a call from his uncle namely Manoj who asked him to come at the spot with his car as his had sustained injury in a quarrel. He reached the spot i.e. NA 240, Vishnu Garden where he found his father, Surender, Jitender and Manoj in injured condition. He took all of them in his car at Kukreja Hospital where they got treatment. 6.11. PW-15 was cross-examined by accused persons wherein he deposed that he was using mobile no. 9899262300 at the time of incident. The spot was about 300 meter from his residence and he reached there within 5-10 minutes. His statement was recorded by the police in the hospital. He did not remember if he visited the police station regarding this case. He denied that his statement was recored on 13.06.2012 or that he did not take the injured persons to the hospital or that he did not received any call from his uncle or State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 14/52 that his statement was recorded on 22-23.05.2012. 6.12. Another important witness of the prosecution is PW-17 Dr. Komal Singh, who conducted postmortem on the dead body of Surender. He deposed that the deceased sustained six external injuries. The cause of death was opined septicemia alongwith respiratory failure which was caused by pulmonary embolism developed secondary to the injuries inflicted was assault by the second party. Injuries of the abdomen and other parts were caused by blunt impact. All injuries were ante-motem and are of same duration and manner of death was homicide and time since death was consistent with the hospital timing of death. 6.13 PW-17 was not cross-examined by the accused persons. 6.14. PW-27 SI Arvind Kumar is the first IO of the case. He deposed that on 22.05.2012, he along with Ct. Rajkumar reached the spot i.e. H. No. NA240, Vishnu Garden where he met HC Phool Chand and complainant Jitender. One white colour Scorpio car bearing registration no. UK07AJ599 was also found at the spot. PW- 27 prepared site plan Ex.PW-21/G at the instance of complainant Jitender. He further deposed that at that time on the instance of complainant he apprehended accused Umar Khan. He arrested accused Umar Khan and prepared arrest memo and personal search memo Ex.PW-21/B and Ex.PW-21/C respectively. IO also recorded his disclosure statement and pointing out-cum-seizure memo Ex.PW-21/E of two pieces of brick and two pieces of blood stained baseball sticks recovered from the Scorpio car at the instance of accused Umar Khan. He also prepared document Ex.PW-21/F regarding measurement of baseball stick. The said Scorpio car was also seized by him vide seizure memo Ex.PW-21/A. The State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 15/52 complainant handed over to IO his blood stained shirt worn by him at the time of incident, which he seized vide seizure memo Ex.PW- 3/B. He recorded supplementary statement Ex.PW-27/A of the complainant and deposited the case property in the malkhana and thereafter, accused Umar Khan was produced before the concerned court and remanded to JC.
6.15 He further deposed that on 10.06.2012, he got an information regarding the death of injured Surender Singh at Sir Ganga Ram hospital. On 11.06.2012, he gave request Ex.PW-27/B for postmortem of deceased. He also recorded statements Ex.PW-5/B and Ex.PW-11/A regarding identification of dead body. After postmortem, the dead body was handed over to its relatives and doctor handed over the blood in gauze of deceased along with sample seal to the IO which was seized by him vide memo Ex. PW- 24/A. Thereafter, he returned to PS and deposited the case property in the Malkhana.
6.16. He further deposed that on 13.06.2012, another injured namely Brahan Chandela came to police station. On the basis of secret information regarding the assailants, PW-27 alongwith the raiding party consisting of HC Sudhir, Ct. Bijender and injured Braham Chandela reached at Peeragarhi Chowk where injured Braham Chandela pointed towards accused Sahid and Babar Khan. He arrested both the accused persons and conducted their personal search. He also prepared pointing out memo of the spot at their instance. He further deposed that on the same day, he met injured Braham Chandela at Khyala Village who handed over him his blood stained clothes vide memo Ex.PW-7/C. He further deposed that on 13.06.2012, he met Sh. Manoj Chandela, the brother of State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 16/52 deceased who handed over him the clothes worn by deceased at the time of incident, which he seized vide memo Ex.PW-5/A. 6.17. On 14.07.2012, he along with injured Braham Chandela reached at DDU hospital where the doctor obtained blood samples of injured and seized them. Similarly, on 15.07.2012, he along with Jitender reached at DDU hospital where doctor obtained blood sample of injured and handed over to him the sealed parcel along with sample seal, which he seized. On 19.07.2012, he sent the Exhibits to FSL through Ct. Vijender.
6.18. He was not cross-examined by the accused persons despite the opportunity given. However, later on during trial, Ld. Counsel for accused moved an application u/s 311 Cr.P.C for recalling PW- 27 which was allowed. Accordingly, PW-27 was cross-examined on 10.01.2023.
6.19. In his cross-examination, he stated that he received the information about assigning of the investigation of case FIR No. 107/12 PS Khyala in the evening hours. He voluntarily stated that the call of incident was marked vide DD No. 31 A to him and HC Phool Chand simultaneously and on inquiry of HC Phool Chand, case FIR No. 108/2012 was registered. He did not remember the name of caller on whose information DD No. 31 A was registered or that he examined or recorded statement u/s 161 Cr.P.C of the said caller. He stated that after receipt of DD No. 31 A, he left the police station for Vishnu Garden, however in between beat staff HC Sudhir informed him that he alongwith injured Umar Khan was going to DDU hospital and accordingly, PW-27 reached DDU hospital. However, he firstly reached Vishnu Garden and thereafter went to DDU hospital. He stated that he remained at the spot for about 2-3 State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 17/52 minutes and several persons were present at the spot but nobody gave any complaint at the spot.
6.20. He further stated that he reached DDU hospital at about 5-6 p.m where Umar Khan along with HC Sudhir was present and Umar Khan was under treatment. He further stated that he recorded statement of Umar Khan in the hospital, however he did not remember the time. On the statement of Umar Khan who was accused in FIR No. 108/2012, the FIR No. 107/2012 PS Khyala was registered whereby he made complaint against Braham Chanela and his associates, who were accused in case FIR No. 107/12 PS Khyala. He further deposed that he left the DDU hospital at about 9.30 p.m and reached NA-255, Vishnu Garden. He did not remember if any document except rukka was prepared by him in DDU hospital. He collected the MLC of Umar Khan and at that time Umar Khan was discharged from the hospital. He did not remember if he received any communication from police station regarding any other DD number. He reached the said spot at about 11 p.m and did not ask Umar to accompany him to the spot. He stated that when he left the hospital, he did not know if FIR was also registered against Umar Khan. HC Sudhir did not accompany him from the hospital to the spot.
6.21. He further stated that the distance between NA 240 and NA 255 was about 200-400 mtrs. He stated that when he visited the hospital, accused Umar was having injury on his back. He did not remember if the CMO handed over him a sealed parcel of wearing clothes of accused Umar Khan in the hospital.
6.22. He further stated that he prepared rukka of case FIR No. 107/2012 only in the DDU hospital. He denied that he had taken State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 18/52 into possession the clothes of Umar Khan handed over by the CMO of DDU hospital or that he prepared its seizure memo. He did not remember if the CMO had handed over him the clothes of accused Umar Khan. He did not remember the time he prepared the site plan or that if the complainant Jitender had identified accused Umar prior to the preparation of site plan. He further stated that Jitender pointed out towards accused Umar Khan after one and half hour of his reaching at the spot. He did not remember if after perusing the rukka of FIR No. 108/12, he came to know that Umar Khan is an accused in that case. He further stated that when he reached NA 240 Vishnu Garden at about 12 midnight, he came to know that FIR No. 107/12 and FIR No. 108/12 were cross-cases. He was volunteer to say that after examining the complainant Jitender, he came to know about all the eye witnesses.
6.23. He further stated that he did not remember if in his supplementary statement, Jitender had mentioned the names of all the eye witnesses. He had recorded the disclosure statement of Umar Khan before recording the supplementary statement of Jitender. He did not remember if Jitender was made a witness in the disclosure statement of Umar Khan. He stated that there were no public witnesses present at the time of recording disclosure statement of accused Umar Khan. He did not remember if the public persons were present when he reached at NA-240 Vishnu Garden. The spot was surrounded by residential houses, but no one agreed to join the proceedings. However, he did not give any notice to any person. He denied that no disclosure statement was made by Umar Khan or that his signatures were taken on blank papers.
6.24. During his further cross-examination on 10.04.2023, he stated State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 19/52 that after reaching the spot, he inspected the Scorpio car involved in this case. The Scorpio car was lying in unlocked condition and no public person was present near the car. He had not done the videography or photography of the Scorpio car. He deposed that no public witness was joined at the time when two pieces of blood- stained base-ball stick and two pieces of brick were taken into possession and seizure memo was prepared. He did not remember how many statements of witness Jitender were recorded by him. He stated that before recording the supplementary statement of Jitender, he recorded the disclosure statement of accused Umar Khan. He denied that he had incorrectly recorded the statement of witnesses and created false evidence against accused persons. PW-27 further stated that in the intervening night of 22/23.05.2012, he came to know that Braham Chandela is one of the eye- witness of the incident. He did not remember if Braham Chandela came to him to make a statement in the month of May. He also could not state the dates on which he had visited the house of Braham Chandela in the month of May. He never met Braham Chandela before 13.06.2012. PW-27 did not remember if Braham Chandela had given him any representation regarding this case prior to 13.06.2012. He denied that he had fabricated the statements of witnesses or that the accused persons were not arrested from the spot as deposed by him or that nothing was recovered at the instance of accused persons or that accused persons were made to sign the blank paper to create false evidence against them or that he had not conducted a fair investigation.
6.25. PW-27 further stated that he had not met Manoj Chandela before 13.06.2012 and met him at the time of postmortem of State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 20/52 deceased Surender when he recorded his statement with regard to identification of dead body. He denied that during investigation, he came to know that accused persons were innocent and it was the complainant party who first caused injury to Umar Khan.
7. PW-31 SI Yad Ram is the Second IO of the case. He arrested proclaimed offenders Bhura and and Hasim and filed supplementary charge-sheet in respect of aforesaid accused persons.
Statement u/s 294 Cr.P.C of accused persons:-
8. The statement of all the accused persons u/s 294 Cr.P.C was recorded wherein they admitted the contents and genuineness of document i.e. MLC No.13895 dated 15.07.2012 of Jitender Singh (Ex. AD-Y1). In view of the statement u/s 294 Cr.P.C, the witness namely Dr. Praveen, Junior Resident, DDU hospital (sl.no.17) was dropped from the list of witnesses.
The statement of accused persons u/s 313 Cr.P.C:
9. The statements of accused persons u/s 313 Cr.P.C was recorded. The incriminating circumstances appearing in evidence against the accused were brought to their notices and explanation was sought. Accused claimed that they were innocent and had been falsely implicated in this case. Accused persons wished to lead evidence in their defence.
10. During trial, accused Shahid moved an application for summoning of defence witnesses which was dismissed vide order dated 24.08.2024. The said order has not been challenged by the accused and hence, it became final.
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 21/52 Submissions by Ld. Prosecutor:
11. Ld. Prosecutor argued that the prosecution has been able to prove the case against the accused persons beyond reasonable doubt and thus, the accused are liable to the convicted for the offences they have been charged with. Ld. Prosecutor further relied upon the testimonies of prosecution witnesses while submitting that the prosecution witness have corroborated each other in material particulars wherein they explained the individual roles of accused persons which prove that accused persons in furtherance of their common intention of all committed deadly assault on the victim due to which injured Surender died. He has also referred to the testimony of PW-17 Dr. Komal Singh, who conducted the postmortem and submitted that deceased died due to septicemia which was the result of injury received by him in the assault and further that the said doctor has not been cross-examined by the accused persons at all.
Submissions by Ld. Counsel for accused persons :
12. On the other hand, Ld counsel for the accused while arguing that the prosecution has miserably failed to prove the case beyond reasonable doubt emphasized on the following points:-
• That the testimony of PW-3 Sh. Jitender cannot be looked into as his testimony could not be completed because of his un- timely death and further that the accused did not have the right and opportunity to cross-examined the said witness;
• That there is no independent witness to support the case of the prosecution;
• That there is no motive on behalf of the accused persons to State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 22/52 commit the offences as alleged;
• That the prosecution has failed to prove the true genesis of the incident as the IO has not carried out the fair investigation regarding the version of the accused in the FIR no. 107/2012 PS Khyala, which is the cross-FIR lodge by the accused;
• That PW-5 Manoj is an interested witness as he was brother of deceased Surender Singh and thus, his testimonty cannot be relied upon;
• That the prosecution has failed to explain the injuries on the accused persons causing a reasonable doubt in the prosecution case;
• That the MLC is silent about the name of the accused persons;
• That the prosecution has failed to prove the identification of the assailants beyond reasonable doubt;
• That the conduct of PW-5 Manoj Chandela does not inspire confidence and it is unsafe to rely upon his testimony;
• That there is unreasonable delay in recording the statement of important prosecution witnesses;
• That there are material contradictions in the prosecution case;
• That the prosecution has failed to prove the identification of the assailants beyond reasonable doubt and further the IO did not conduct the TIP of accused Hasim despite the application moved by him;
• That the prosecution has also failed to prove the link between the cause of death of deceased and the alleged overt acts of accused persons as the PM report shows that the deceased died due to septicemia and that too after twenty days of the incident.
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 23/52
13. I have heard the arguments advanced by the parties and perused the record carefully.
14. It is settled principle of criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt and the accused has to prove its defence on preponderance of probabilities. But, moot question is what do we mean by the expression 'beyond reasonable doubt'?
15. For our good fortune, the said expression has been defined by the Hon'ble Supreme Court in the various judgments. In the judgment of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 24/52 induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
16. Furthermore, in the judgment of Sucha Singh and Another Vs. State of Punjab, (2003 ) 7 SCC 643, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:-
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v.
Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 :
1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 25/52 punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC)
315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
17. The court shall deal firstly with the arguments advanced by the Ld. Counsel for the accused persons.
The examination-in-chief of PW-3 Sh.Jitender cannot be termed as evidence being incomplete:-
18. The first and foremost contention of the Ld. Counsel for accused is that the examination-in-chief of PW-3 Jitender cannot be looked into as his deposition cannot be termed as legally admissible evidence. On the other hand, Ld. Prosecutor argued that the said witness after his part deposition, had expired but he supported his complaint and even though his testimony remained incomplete, but it can surely be used to provide corroboration to the other evidence on the record.
To appreciate the rival contentions, the only provision which can be referred to is Section 33 of IEA. The said section provides that the evidence given by a witness is relevant for the purpose of proving the truth not only in a subsequent judicial proceeding , but also in a later stage of the same judicial proceedings when the witness is dead as well as in other circumstances as mentioned in the said section. However, the same would be subject to some conditions. One of the conditions is that the adverse party in the first proceeding had the right and opportunity to cross-examine the said witness.
The record reveals that PW-3 Jitender is the complainant in State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 26/52 this case. He was partly examined in chief on 15.01.2013. However, his further examination was deferred for the want of case property. The summons sent to him for 31.03.2014 returned back with the report that he had expired. The death certificate attached with the summons revealed date of his death as 17.10.2013.
Therefore, it is clear that the witness had expired before he was summoned again and no further examination in chief of the witness was undertaken after 15.01.2013. Although, it is settled law that when the examination in chief of a witness is completed and before he could be recalled for cross-examination and if he dies, his examination in chief can be considered for some purpose, but in a case where examination in chief could not be completed, the said part examination in chief cannot be considered as an evidence. Therefore, I find force in the contention of the Ld. Counsel of the accused and thus, the part examination in chief of PW-3 cannot be termed as an evidence in the eyes of law. Thus, the part deposition of PW-3 cannot be looked into for any purpose as accused did not any right and opportunity to cross-examine the witness.
Absence of Independent public witnesses:
19. The next contention relied by accused is that no independent public person had been joined by the IO in the investigation, which caused a serious prejudice to the prosecution case.
20. What would be the effect of the absence of the independent public witnesses has been considered by the Hon'ble Supreme Court in the landmark judgment of Appabhai and Another Vs. State of Gujarat, AIR 1980 SC 696. In para 11 of the said judgment it was observed here as under:
".................................. It is no doubt true that the State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 27/52 prosecution has not been able to produce any independent witnesses to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not themselves. This kind of apathy of the general public is indeed unfortunate, but is there everywhere whether-in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the independent case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of the truth with due regard to probability,if any, suggested by the accused.............................."
21. Therefore, in view of the aforesaid ratio in the case of Appabhai and Another (supra), it is clear that normally the independent public persons are hesitant to join the process of law fearing the harassment which they may face in the investigation and in the court. The testimonies of the injured, therefore, cannot be castigated merely that no independent public persons have been joined in the investigation. Hence, the court is not inclined to accept this contention of the Ld. Counsel.
Absence of Motive :
22. The next contention by accused is that the prosecution has failed to bring any motive on the record. The facts of the case would reveal that the present case is based upon the oral testimonies of the witnesses and is not one based upon the circumstantial evidence. It is settled law that in a case where direct evidence in the form of eye witness is available, the motive loses its relevancy and State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 28/52 is of no significance. In the judgment of Chandan vs The State (Delhi Administration) 2024 INSC 271, the Hon'ble Supreme Court was posed a similar question. The Hon'ble Supreme Court held that in a case of eye witness account, the motive is not important and the absence of motive cannot provide any excuse to discredit the eye witness. The relevant observations of the Hon'ble Supreme Court are reproduced hereasudner:-
"5. The argument of the defence that the prosecution has not been able to establish any motive on the accused for committing this dastardly act is in fact true, but since this is a case of eye- witness where there is nothing to discredit the eye-witness, the motive itself is of little relevance. It would be necessary to mention some of the leading cases on this aspect which are as under:
In Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55, it was held that it is a well-settled principle in criminal jurisprudence that when ocular testimony inspires the confidence of the court, the prosecution is not required to establish motive. Mere absence of motive would not impinge on the testimony of a reliable eye- witness. Motive is an important factor for consideration in a case of circumstantial evidence. But when there is direct eye witness, motive is not significant. This is what was held:
"In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye- witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy" The principle that the lack or absence of motive is inconsequential when direct evidence establishes the crime has been reiterated by this Court in Bikau Pandey v. State of Bihar, (2003) 12 SCC 616; Rajagopal v. Muthupandi, (2017) 11 SCC 120; Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC
195."
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 29/52
23. Therefore, in view of the aforesaid proposition of law as enunciated by the Hon'ble Apex Court, it is crystal clear that the absence of motive in a case of eye witness account, is not relevant or material and cannot tantamount as an excuse to discredit the eye witnesses. Thus, the submission of Ld. Counsel stands rejected.
True Genesis of Incident not proved:-
24. The next submission canvassed by accused that the prosecution has not been able to come up fairly about the true genesis of the prosecution case as the true facts as contained in FIR No. 107/2012 registered by the accused against the complainant and victim of this case have not been fairly investigated. There is no quarrel on the aforesaid proposition of law that when prosecution has failed to bring true and real genesis of the incident, a reasonable doubt is created in the prosecution case. The Hon'ble Apex Court in the case of Bhagwan Sahai V State of Rajasthan AIR 2016 SC 2714 has reiterated the law in this regard. The relevant observations of the Hon'ble Supreme Court are reproduced hereasunder:-
"Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts."
25. Thus, the aforesaid observations of the Hon'ble Apex Court make it clear that the prosecution failed to bring true genesis of the State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 30/52 incident, must give favour to the accused. However, this Court is of the opinion that the afore-said proposition is not applicable to the case in hand. The reason being that FIR No. 107/2012 and FIR No. 108/2012 (the present case) were registered at the instance of accused persons and the complainant/victims in this case respectively in respect of the same incident. It is not the case that separate FIR for the version of the accused had not been registered or not investigated upon. After completion of the investigation of the said FIR, the charge sheet also came to be filed against the complainant and victims in this case. However, unfortunately, all the accused persons therein (complainant and victims herein) expired during the trial of the aforesaid FIR. Thus, it is clear that two cross-FIRs were registered regarding same incident. It is settled law that when two cross-FIRs are registered, they are to be investigated separately and they are to be tried also separately and by the same court. Moreover, the evidence recorded in one case cannot be read into other case and all the cases shall be confined to the evidence recorded therein only.
26. In the case of State of M.P Vs Mishri Lal (dead) & Ors (2003) 9SCC 426, the Hon'ble Supreme Court laid down the correct procedure about the trial of cross-FIRs pertaining to the same incident. The relevant observations are hereasunder:-
"7. ............. This Court in Nathi Lal v. State of U.P. [1990 Supp SCC 145 : 1990 SCC (Cri) 638] pointed out the procedure to be followed by the trial court in the event of cross-cases. It was observed thus:
(SCC pp. 145-46, para 2) "2. We think that the fair procedure to adopt in a matter like the present where there are cross-cases, is to direct that the same learned Judge must try both the cross-cases one after the other. After the recording of State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 31/52 evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross-case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case.
The evidence recorded in the cross-case cannot be looked into. Nor can the Judge be influenced by whatever is argued in the cross-case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross-case. But both the judgments must be pronounced by the same learned Judge one after the other."
27. In the case in hand, a cross- FIR at the behest of accused herein had been registered by the investigating agency. Moreover, the evidence recorded in this case would suggest that the accused persons have not taken any steps to confront the prosecution witnesses in this case with the record of FIR No. 107/2012 by not bringing anything on record of this case, which could have checked the veracity of the prosecution witnesses or impeached their credibility. Therefore, this court is of the opinion that the aforesaid argument of the Ld. Counsel for accused, is not sustainable and is liable to the rejected, which is rejected.
PW- 5 Manoj Chandela is an Interested Witness:-
28. The next contention vehemently put forth is that PW-5 Sh. Manoj Chandela is an interested witness as he was the brother of deceased Surender and his testimony could not be relied upon. The court is of the opinion that the said contention has no legal force behind it. It is trite law that merely the eye witness is a relative of the victim or deceased, does not make him as an interested witness State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 32/52 unless the accused persons are able to bring something on the record that he was interested for some extraneous reason or consideration in securing the conviction of the accused.
29. In the judgment of Myladimmal Surendran & Ors vs State Of Kerala AIR 2010 SUPREME COURT 3281, the Hon'ble Supreme Court discussed and reiterated the law in this regard. The relevant observations of the Hon'ble Supreme Court are reiterated hereasunder:-
"29. We may at this stage notice the observations made by this Court in the case of State of Rajasthan Vs. Smt. Kalki and Another [(1981) 2 SCC 752] which is as under:-
"True, it is she is the wife of the deceased, but she cannot be called an `interested' witness. She is related to the deceased. `Related' is not equivalent to `interested'. A witness may be called `interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be `interested' in the instant case PW1 had no interest in protecting the real culprit, and falsely implicating the respondents."
(emphasis supplied)
30. Thus, in view of the aforesaid proposition, it is crystal clear that merely some eye witness is the relative of the victim or deceased, does not become an interested witness. A witness can only be called interested witness when he or she drives some benefit from the result of the litigation or in securing the conviction to the accused. Therefore, merely that PW-5 Sh. Manoj Chandela is the relative of the deceased, does not make him a witness devoid of any credence or make him an interested witness.
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 33/52 Furthermore, the accused have not brought any material on the record to infer that the victims had any other extraneous consideration to secure their conviction in the case. Hence, this court does not find any difficulty in rejecting the contention of the Ld. Counsel for accused.
Non-Explanation of the Injuries to accused in FIR No. 107/2012:-
31. The next contention by accused is that the prosecution has failed to explain the injures to the accused persons upon which FIR No. 107/2012 was registered and thus, it creates a serious doubt thereto extending the benefit to the the accused. It is true that when the accused also receive injuries in the same incident, it is the duty of the prosecution to explain the same and in case of failure, the benefit must go to the accused.
32. The Hon'ble Supreme Court in case titled Parshuram VS State of M.P 2023 LiveLaw (SC) 953 discussed and reiterated the law in this regard. The same are reproduced hereasunder:-
"20. We do not find the said observation of the trial court correct. The injuries sustained by Ramrup @ Roopa is by a sharp weapon. It will be trite to refer to the following observations of this Court in the case of Lakshmi Singh and Others v. State of Bihar (1976) 4 SCC 394: -
"12. ....... It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
"(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 34/52 (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case." The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused.
Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima [(1975) 2 SCC 7 : 1975 SCC (Cri) 384] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."
21. A similar view with regard to non-explanation of injuries has been taken by this Court in the cases of State of Rajasthan v. Madho and Another4, State of M.P. v. Mishrilal (Dead) and Others5, Nagarathinam and Others v. State Represented by Inspector of Police6 and recently in the case of Nand Lal (supra)."
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 35/52
33. The court is of the opinion that the discussions already made in respect of the contention about the true genesis of the incident, would be sufficient. However, at the cost of repetition, it is observed that two FIRs had been registered in respect of the same incident on different versions, but the FIR No. 107/2012 could not culminate to a logical conclusion, due to the death of accused therein (complainant/victim herein). Therefore, to say that the prosecution has not been able to explain the injuries on the accused persons in case FIR No. 107/2012 wherein they were the complainant, is not correct. Accordingly, the court is not in agreement with the Ld. Counsel and same stands rejected.
MLCs did not mention the names of assailants:-
34. The next submission made by the accused is that the case of the prosecution is that some of the accused were known to the complainant and the victim before the incident. However, the name of none of the accused persons was mentioned by any of the victims to the doctor which is fortified from the fact that the MLC of the victim is silent about the name of accused. Though the argument of the Ld. Counsel appears to be interesting, but the same is not maintainable in the eyes of law and accordingly, is rejected. The reason being it that the MLC is not an encyclopedia and neither the doctor nor the victim is required to mention the name of the assailant in every circumstances. The MLC is always prepared by the doctor in a condition where the main consideration of the doctor is to save life of the victim or injured. It may or may not happen that the MLC finds mention the name of the assailant. Thus, the MLC or contents thereof cannot be taken as gospel truth.
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 36/52 It may or may not contain the name of the assailant and the MLC and its contents must be considered in the light of other evidence and attending circumstances. Thus, the court is not hesitant in holding that the said contention of the accused persons is not maintainable and accordingly, same stands rejected.
Conduct of PW-5 Manoj Chandela does not inspire confidence:-
35. Ld. Counsel for accused further argued that PW-5 Sh. Manoj Chandela is not a trustworthy witness as his conduct would show that he has given a false statement in the court on oath. While explaining the said arguments the Ld. Counsel argued that the conduct of PW-5 Manoj Chandela was not in accordance with the normal human conduct and thus, the same cannot be relied upon to entail the finding of conviction against the accused. In order to appreciate the said conditions, it would be better to refer the law on the aforementioned subject.
36. In the case of Rammi v. State of M.P., (1999) 8 SCC 649 :
2000 SCC (Cri) 26 : 1999 SCC OnLine SC 951 at page 654, it was observed as under:-
"8....... This Court has said time and again that the post- event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would, therefore, be different....."
37. In Babasaheb Apparao Patil v. State of Maharashtra, (2008) 17 SCC 425 : (2010) 4 SCC (Cri) 762 : 2008 SCC OnLine SC 1773 at page 430, it was observed as under:-
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 37/52 "19. ....... The post-event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be fol-
lowed as a model by everyone witnessing such event. Dif- ferent persons would react differently on seeing any seri- ous crime and their behaviour and conduct would, there- fore, be different........."
38. In Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 : (2013) 4 SCC (Cri) 528 : 2012 SCC OnLine SC 1075 at page 426, it was observed as under :-
"26.......It is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from in- dividuals to individuals. There cannot be uniformity in hu- man reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded. (emphasis supplied)"
39. In Shivasharanappa v. State of Karnataka, (2013) 5 SCC 705 : (2013) 4 SCC (Cri) 803 : 2013 SCC OnLine SC 438 at page 714, it was observed as under :-
"22. Thus, the behaviour of the witnesses or their reactions would differ from situation to situation and individual to individ- ual. Expectation of uniformity in the reaction of witnesses would be unrealistic but the court cannot be oblivious of the fact that even taking into account the unpredictability of human conduct and lack of uniformity in human reaction, whether in the circum- stances of the case, the behaviour is acceptably natural allowing the variations. If the behaviour is absolutely unnatural, the testimony of the witness may not deserve credence and ac- ceptance. ( emphasis supplied)."
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 38/52
40. Thus, from the said settled position of law, it is safe to hold that the post-event conduct of a person may be different and no straight jacket formula could be there to define the same. Hence, the court declines to accept the submission of Ld. Counsel.
Unreasonable delay in recording the statement of the wit- nesses:-
41. The next contention urged by the Ld. Counsel for the ac- cused is that there has been unreasonable delay in recording the statement of witnesses. He argued that the IO has not recorded the statement of witnesses at the earliest point of time despite their availability. He argued that PW-5 Manoj Chandela stated that his statement was recorded on 12.06.2012 and PW-7 Braham Chan- dela also admitted that his statement was recorded on 13.06.2012 whereas the incident in this case took place on 22.05.2012. Ld. Prosecutor contested the said submission while submitting that mere delay in recording of the statement of witnesses by the IO cannot extend any benefit to the accused.
It is settled principle of law that no hard and fast rule can be laid down to appreciate the testimony of witness whose statement has been recorded by the IO after a considerable delay. The Court has to see whether the delay if any in recording the statement of eye witness has been explained by the prosecution or not. While keeping in view the aforesaid proposition of law if one sees the cross-examination of PW-5 Manoj Chandela, one would find that though the cross-examination has been conducted by the accused and it has come on record that his statement was recorded on State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 39/52 12.06.2012, but at the same time one cannot ignore the fact that no reasonable explanation has been sought from him about the delay. Similarly, the accused persons did not seek any explanation from PW-7 Braham Chandela as well regarding the delay in recording his statement. PW-27 Inspector Arvind also was not grilled by the accused persons and no explanation has been sought from him as to why the delay has occurred in recording of the statement of PW-5 and PW-7. At this stage, the court must remind itself that unless and until the accused seeks explanation from the witnesses, the witnesses were not supposed to give an explanation. The situa- tion would have been different if the witness or the IO would not have been able to give an explanation or an explanation which found to be not implausible. Such is not the case here. Hence, the fact that though there is delay in recording of the statement of wit- nesses by the IO, but the accused persons did not seek any expla- nation from the witnesses regarding the delay in their statements. Accordingly, the accused persons cannot derive any benefit from the delay in recording the statement by the IO. Thus, the said con- tention of accused stands rejected.
Material Contradictions:-
42. The next point vehemently raised by the Ld. Defence Coun-
sel is that there are material contradictions in the testimony of the prosecution witnesses. But here the question which assumes im- portance is that what would amount to the material contradictions and what would not. In State of Rajasthan Vs. Kalki (1981)2 SCC 752 the Hon'ble Supreme Court was pleased to held that as under:-
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 40/52 "normal discrepancies in evidence are those which 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 those are always there, however hones and truthful a wit- ness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
To give strength to the aforesaid contention, the Ld. Coun- sel argued that PW-5 Manoj Chandela did not depose anything about the use of sword whereas PW-7 Braham Chandela deposed that the accused persons were also armed with the swords along- with iron rods and dandas in their hands. He further invited the at- tention of the court on the MLC of victim and deceased submit- ting that no injury which could have been given by the sword was found on their persons.
The court has seen the MLCs of the victims/ injured and found that indeed no injury was caused on their person by a sharp edged weapon like sword. However, the court is not oblivion of the fact that the offence in hand had the involvement of several persons. It is also the case of the prosecution and the accused that separate FIRs had also been registered on their respective ver- sions. Therefore, the slight variation or the inconsistency in re- spect of the weapon used or what weapon had been used by which accused, may not be relevant when the offence is committed by several persons. It is not expected of the victim / injured to ob- served and note with minute details thereto. The court is only re- quired to see if evidence of the witnesses, if considered as a whole, has a ring of truth or not. Hence, the court is of the opinion State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 41/52 that no material inconsistency has come on record and accord- ingly, said contention of the accused cannot be accepted. Accord- ingly, the same stands rejected.
Identification of Accused not established and despite request IO did not conduct the TIP of accused Bhura:-
43. In respect to the aforesaid contention, Ld. Counsel argued that the prosecution has failed to properly established the identity of accused persons as the offenders in the case. However, the court is not impressed with the submission as complainant PW-3 Jitender named accused Sahid and accused Umar in the complaint Ex.PW-3/A. PW-5 Manoj Chandela identified accused Babar Khan, Bhura and Sahid by their names in the court and accused Umar Khan and Hasim by their face. PW-7 Braham Chandela also identified the accused persons with their names, correctly in the court. Ld. Counsel also pointed out that no TIP of the accused per-
sons were conducted by the IO, but the court is of the opinion that failure to conduct the TIP of accused may not cause any prejudice to the prosecution if the victim or the witnesses had the sufficient time to note the features of the offenders and thus, the first time dock identification is not bad. Admittedly, the present case is a case where the injuries were caused and received by both the sides and two FIRs were registered, therefore, it can be logically con- cluded that the the victims or the witnesses had the sufficient time to see the offenders.
As far as the submission of Ld. Counsel that IO did not con- duct the TIP of accused Bhura despite his request in the court is concerned, it can be said that it is settled law that TIP is the pre-
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 42/52 rogative of the IO and for his satisfaction that he is proceeding in the right direction in the investigation. The IO of the case may or may not conduct the TIP of a particular accused depending upon the evidence and therefore, the submission of Ld. Counsel in this regard, cannot be accepted. Moreover, the court feels that there is nothing in the evidence that the TIP of the accused Hasim was necessary and the failure of the IO in that regard has caused a harm to the prosecution case. Thus, the court rejects that submis- sion of Ld. Counsel.
Link between the alleged overt acts between accused and the cause of death is not established:-
44. The Ld. Counsel further urged that the prosecution has failed to connect the link between the alleged overt acts of the ac-
cused and the death of deceased Surender, in as much as, the al- leged incident took place on 22.05.2012 and the deceased Suren- der expired on 10.06.2012. The MLC Ex.PW-16/A of Surender showed that he suffered two injuries on his head. PW-19 Dr. Anil, CMO Kukreja Hospital deposed that the injuries sustained by Surender were life threatening and dangerous. It is also the case of the prosecution that deceased Surender was discharged on 08.06.2012 vide Discharge Summary Ex.PW-19/B with date of admission on 22.05.2012. The Discharge Summary Ex.PW-19/B shows that he was in ICCU for some time and had been operated as well. At the time of discharge, his condition was not good and he was referred to Dr. Vijay Arora, Surgeon, Sir Ganga Ram Hos- pital.
PW-17 Dr. Komal Singh conducted postmortem vide his re-
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 43/52 port Ex.PW-16/A and noted the cause of death as septicemia along with respiratory failure which got developed secondary to the injuries inflicted in the assault. He was not cross-examined at all by the accused persons. Thus, there is nothing on the record to disbelieve the expert opinion of Dr. Komal Singh. His opinion firmly established the link between the death of deceased Suren- der Singh and the alleged overt act of accused persons. Therefore, the contention of the Ld. Counsel is not sustainable in the eyes of law.
45. Having considered and discussed the aforesaid contentions of the Ld. Counsel for accused, now comes the stage if the prose- cution has been able to prove the charges against the accused per- sons beyond reasonable doubt. The accused persons have been charged for the offences u/s 323/324/304/34 IPC and accused Bhura and Hasim have been charge for the offence u/s 174A IPC separately as well.
Let me first discuss the offence u/s 304 IPC against the ac- cused persons. Accused persons have been charged with the said offence on 24.09.2012 as well as 07.08.2014. In the charge, my Ld. Predecessor did not mention about the Part of section 304 IPC specifically whether the accused persons were charged with of- fence u/s 304 Part I or 304 Part II. Thus, now the court has to make further inquiry in this regard.
At this stage, the court deems it appropriate to reproduce the observations of the Hon'ble Supreme Court in the case titled Anbazhagan Vs The State represented by The Inspector of Po- lice, CA No. 2043 of 2023, arising out of S.L.P. (Criminal) No. 29289 of 2019 decided on 20.07.2023 wherein the Hon'ble State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 44/52 Supreme Court discussed the principle of law laid down in the landmark judgment of Punnayya and Virsa Singh. The relevant observations in the case of Anbazhagan (supra) are contained in Para 60 which is reproduced as under:-
"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus: --
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Sec-
tion 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate:'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instan- taneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Sec- tion 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Sec- tion 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enu- merated in that section. In the event of the case falling within any of those exceptions, the offence would be cul- pable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the ac- cused is such as to fall within Clauses (1) to (3) of Sec- tion 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowl-
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 45/52 edge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused per- son falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is pun- ishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty in- tention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular in- jury was intended, and objectively that injury was suffi- cient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Sec- tion 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distin-
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 46/52 guished from more 'possibly'. When chances of happen- ing are even or greater than it is not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homi- cide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be re- quired under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Sec- tion 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as de- scribed under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by di- rect evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the in- jury, degree of force used in causing the injury, the man- ner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general prin- ciple, can be drawn that the accused did not have the in- tention to cause the death or that particular injury which State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 47/52 resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is suffi- cient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sud- den fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.
46. Thus, from the aforesaid principles culled out by the Hon'ble Supreme Court, it is clear that when the death is caused by a person with intention to cause such bodily injury as is likely to cause death, the act falls u/s 304 Part I, but where the death is caused by an act where the accused has no guilty intention but only has the guilty knowledge that by such act, he was likely to cause the death of person, the act falls within II Part of Section 304 IPC. In other words, Section 304PArt I is applicable when there is a 'guilty intention' and Section 304 Part II is applicable when there is no 'guilty intention' but only the 'guilty knowledge'.
47. In view of the afore-discussions, if we revert back to the facts of the present case, it has come on record from the prosecu- tion evidence that there were two FIRs in respect of the same inci- dent on the cross versions of the complainant and accused per-
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 48/52 sons, which showed that the parties had claimed the other party as the aggressor and themselves to be the victim. The deposition of prosecution witnesses especially, PW-5 Manoj Chandela and PW- 7 Braham Chandela would reveal that accused persons had base ball bats and wooden dandas with them while attacking the victim in this case. PW-7 Braham Chandela deposed that accused persons after reaching at the spot, attacked them with stones and bricks ly- ing nearby and accused Bhura, brother of Sahid took the brick and hit the same on the head of Surender, which caused blood oozing out from his heard. Thus, it is clear that accused Bhura used brick lying at the spot, which shows that he did not bring the said brick and stones with him or by any other accused persons. Moreover, the MLC Ex.PW-16/A of deceased Surender shows that apart from CLW on his mid-parietal region, he only had the swelling and ten- derness on his body. The postmortem report Ex.PW-17/A pre- pared by Dr. Komal Singh also noted a healed wound over the mid parietal region of the deceased. The death of deceased after 22 days from the incident and that too due to septicemia which was the reason of the injuries received by him during the assault, as per the opinion of PW-17 Dr. Komal Singh. Therefore, it can be safely concluded that accused persons did not have any intention to cause some bodily injury which was likely to cause death of de- ceased and as per Section 299 (b) IPC, the act by which the death is caused must have the intention to cause such bodily injury as is likely to cause the death. Section 299 (c) IPC comes into play that when there is no intention to cause any bodily injury as is likely to cause death, but the accused had the knowledge that by such act, death is likely to be caused.
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 49/52 Thus, by hitting the brick on the head of deceased Suren- der, it can be presumed that accused Bhura in furtherance of com- mon intention of all the accused, hit the brick upon the head of the deceased and had the knowledge that by such act, he was likely to cause death of deceased Surender. Therefore, in view of the afore- said discussions, the Court is of the opinion that the prosecution has proved beyond reasonable doubt that accused persons in fur- therance of common intention, had committed such overt act i.e. hitting the brick after lifting the same from the spot, upon the head of deceased Surender and thus, they cannot be said to have an in- tention to cause such bodily injury as was likely to cause death of the deceased, but certainly they can be attributed with such knowl- edge that by their overt act, the death of Surender was likely to be caused. Accordingly, all the accused persons stand convicted for the offence u/s 304 (II) IPC.
Now, comes Section 323 IPC. The MLC Ex.PW-16/B of PW- Braham Chandela as well as MLC Ex.PW-19/A of the com- plainant Jitender would show that they had also received injuries in the incident and their injuries had been opined by the doctor as simple injuries. Thus, the prosecution has also proved the offence u/s 323/34 IPC against the accused persons beyond reasonable doubt.
As far as Section 324 IPC is concerned, the MLC of victim namely Jitender and Braham Chandela would reveal that they did not receive any injury with any sharp- edged weapon as they did not have any incised wound on their person, which was the essen- tial ingredient of Section 324 IPC. Thus, the medical evidence on the record would show that the prosecution has not been able to State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 50/52 prove the offence u/s 324 IPC against the accused persons beyond reasonable doubt.
Now, remains Section 174A IPC against accused Bhura and Hasim. To prove the offence u/s 174A IPC, the complaint u/s 195 Cr.P.C is essential to be filed on record against the accused. The record reveals the the complainant u/s 195 Cr.P.C is not on the record. In the recent judgment of Amandeep Gill & Anr Vs State, CRL.M.C. 5219/2017 & CRL.M.A. 20512/2017, DOD 19.09.2024, the Hon'ble High Court of Delhi held that without the complaint u/s 195 Cr.P.C, cognizance of offence u/s 174A IPC cannot be taken.
In view of the aforesaid ratio in the judgment of Aman- deep Gill (supra), accused Bhura and Hasim cannot be convicted for the offence u/s 174A IPC. Accordingly, they both stand acquit - ted from the offence u/s 174A IPC.
Conclusion:
48. At the cost of repetition, it can be stated that although the part examination-in-chief of PW- Jitender cannot be relied upon, however, testimonies of PW-5 Manoj Chandela and PW-7 Braham Chandela were sufficient to bring home the guilt of accused per -
sons. The prosecution has also been able to prove that the de - ceased Surender was hit by a brick on his head and he expired af - ter about 22 days having remained in the hospital for the treat - ment. The cause of death given by the concerned doctor was the septicemia along with respiratory failure which was caused by pulmonary embolism developed secondary to the injuries inflicted was assault by the second party. Hence, the prosecution has been State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 51/52 able to connect the overt act of accused persons with the cause of death of deceased. The prosecution has also been able to prove the offence u/s 323/34 IPC, but failed to prove Section 324/34 IPC against all the accused persons and Section 174A IPC against ac - cused Bhura and Hasim.
49. Accordingly, it is held as under:-
i. All the accused persons namely Babar Khan, Umar Khan, Shahid Khan, Bhura and Hasim stand convicted for the offence u/s 304(II) IPC;
ii. All the accused persons also stand convicted for the of- fence u/s 323/34 IPC;
iii. All the accused persons stand acquitted for the offence u/s 324/34 IPC;
iv. Accused namely Bhura and Hasim stand acquitted for the offence u/s 174A IPC.
50. Let the convicts be heard on the point of sentence.
Digitally
signed by
HEM HEM RAJ
Date:
RAJ 2025.04.16
15:57:38
+0530
Pronounced in the open
Court on 16.04.2025 (HEM RAJ)
Addl. Sessions Judge-08 (West)
Tis Hazari Courts Delhi
State Vs Babar Khan & Ors SC No. 55944/2016 FIR No. 108/2012 52/52