Delhi District Court
State vs . Sher Singh Etc. on 13 May, 2015
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS(N-W) : Rohini Courts : Delhi
In the matter of :
SC No. 48/13
State Vs. Sher Singh etc.
FIR no. 702/06
PS Uttam Nagar
U/s 302/307/323 r/w 34 IPC
State
Versus
1. Sher Singh
S/o Sh. Bhondu Ram
R/o A-598, J.J.Colony,
Hastsal, Uttam Nagar, Delhi.
2. Joginder Chauhan
S/o Sh. Sher Singh
R/o A-598, J.J.Colony,
Hastsal, Uttam Nagar, Delhi.
3. Veer Singh
S/o Sh. Sher Singh
R/o A-598, J.J.Colony,
Hastsal, Uttam Nagar, Delhi.
SC no. 48/13 Page 1 of 58
2
4. Krishan @ Banda
S/o Sh. Sher Singh
R/o A-598, J.J.Colony,
Hastsal, Uttam Nagar, Delhi.
5. Premwati
W/o Sh. Sher Singh
R/o A-598, J.J.Colony,
Hastsal, Uttam Nagar, Delhi.
6. Hemlata
W/o Sh. Joginder Chauhan
R/o A-598, J.J.Colony,
Hastsal, Uttam Nagar, Delhi.
7. Pintu
S/o Sh. Om Prakash
R/o Village Utrawali
Police Station, Ahmedgarh,
Distt. Bulandshahar, U.P.
Date of receipt : 15.12.2006
(Received in this court) : 20.11.2013
Date of arguments : 06.05.2015
Date of announcement : 13.05.2015
JUDGMENT
1. The above named seven accused are sent for trial with the case of prosecution that all of them, in furtherance of their common intention, committed murder of Pawan Kumar, and also attempted SC no. 48/13 Page 2 of 58 3 to commit murder of Parmanand, Prakash, Pista Devi & Dalip, and they also caused simple hurt to Parmanand, Pista & Dalip. The story of prosecution unfolds as follows.
1.1 On 13.08.2006 at 8.45 PM a wireless message was received in police station Uttam Nagar regarding quarrel at House no. A-604, Hastsal Colony, Uttam Nagar, Delhi. The information was reduced to writing under DD no. 35A. SI Mahesh Kumar, HC Ramphal and Ct. Rajender were deputed to attend the call. Subsequently, Inspector Suresh Chand also reached the spot and learnt that the injured persons have already been shifted to DDU Hospital. SI Mahesh and HC Ramphal were left at the spot to guard the spot and Inspector Suresh along with Ct. Rajender went to DDU Hospital. In the DDU Hospital, it was learnt that Pawan, who was admitted under MLC no. 20640, was declared brought dead. Other injured persons were also found admitted viz., Prakash (Complainant) S/o Sh. Parmanand vide MLC no. 20424; Pista Devi D/o Sh. Parmanand vide MLC no. 20423; Dalip S/o Sh. Parmanand vide MLC no. 20521; Parmanand S/o Sh. Malaram vide MLC no. 20696 and; one of the accused namely Sher Singh vide MLC no. 20941. In the hospital, statement of Prakash Nagar, one of the injured, was recorded on which present case was got registered.
1.2 Complainant Prakash stated that on 13.08.2006 at about 8.00 PM he had left his driver deceased Pawan Kumar outside his house on „Chabutra‟ (raised platform) since after sometime the SC no. 48/13 Page 3 of 58 4 complainant had to go to Manesar. The complainant himself went to the upper floor of his house. Barely had he sat for working when he heard noise of quarrel of ladies from the gali. He came down and saw that accused Premwati and her daughter-in-law accused Hemlata, who were resident of the house in front of the house of complainant, were abusing his sister & mother, namely, Ganga Devi & Pista. The quarrel was on account of spilling of water due to overflowing from the overhead water tank of the complainant. During arguments of the ladies, accused Sher Singh and one of his son accused Jogender came out of their house. Sher Singh & Jogender also started abusing the mother & sister of complainant. Upon it the complainant and his deceased driver Pawan objected to the abusing. It enraged accused Sher Singh who exhorted his son accused Jogender to call his other brothers and also to bring knife and dandas etc., to teach the complainant and his family a lesson. Upon it, accused Jogender went and brought one dagger from his house. His other brothers accused Krishan and Veer Singh also came out of the house. Krishan was carrying a danda and accused Veer Singh was carrying a glass bottle. Accused Pintu also followed them. Accused Sher Singh exhorted to catch hold of the complainant and others and to finish the complainant and his family members. He also exhorted that first of all Pawan should be seen. Upon it Krishan and Veer Singh caught hold of Pawan from his backside. When complainant tried to rescue Pawan from the clutches of Krishan and Veer Singh, accused Premwati, Hemlata and Pintu caught hold of the complainant.
SC no. 48/13 Page 4 of 58 5Accused Joginder inflicted dagger blow on the left side chest of Pawan. Pawan fell down on the floor. When the complainant started raising alarm, his brother Dalip and his father Parmanand also came out of the house. At that time, accused Krishan gave danda blows upon Dalip as well as on father of complainant, namely Parmanand. Thereafter, accused Veer Singh hit father and sister of complainant with the glass bottle, as a result of which they sustained injuries. When neighbours collected, which included neighbor Sunil Kumar son of Sunder and Satish Kumar son of Kali Charan, the accused persons fled from the spot. At the time of fleeing from the spot, accused Sher Singh fell down and public gave beatings to him. Thereafter, the complainant removed his injured driver Pawan to DDU Hospital where he was declared dead.
1.3 After registration of FIR, investigation was taken up and the accused persons were apprehended. At the instance of accused Jogender, the dragger used in the crime was recovered from the roof of the toilet of house of Jogender. Blood stained clothes of the injured persons were collected. From the spot also exhibits were lifted. On completion of investigation, charge sheet was filed.
2. Accordingly, charges U/s 302/307/323/34 of IPC were framed against the accused to which the accused persons pleaded not guilty and claimed trial. Since in the charges framed against the accused persons, there was an inadvertent error as to the name of injured, where instead of the name of injured, name of accused SC no. 48/13 Page 5 of 58 6 Sher Singh was mentioned, therefore, the charges were amended by this court on 6.05.2015. The accused persons were given option to recall any of the prosecution witnesses, pursuant to the amendment of charges, but the accused persons declined to recall any of the prosecution witnesses.
3. In support of its case, prosecution examined total 33 witnesses.
3.1 The eye witnesses to the crime are examined as PW1 Prakash Nagar(complainant); PW2 Parmanand; PW6 Dalip Nagar; PW12 Sunil Kumar and; PW13 Pista.
3.2 The investigating officer namely Inspector Suresh Chand is examined as PW30.
3.3 The spot witnesses and arrest witnesses are examined as PW16 HC Ramphal; PW17 HC HC Ashok Kumar; PW18 Ct. Rajender; PW19 Lady Ct. Rekha and; PW27 Inspector R. S. Meena.
3.4 Qua the medical evidence, the witnesses examined are PW23 Dr. Shefali; PW25 Roshan Lal (Record Clerk); PW26 Dr. Ashish Arora; PW28 Dr. B. N. Mishra; PW29 Dr. Maninder Kaur Chhabra and; PW31 Dr. Rishi.
3.5 From the FSL, witnesses examined are PW32 A. S. Datta and PW33 Pradeep Kumar.
4. Rest of the witnesses are more or less formal in nature.
4.1 PW3 ASI Ved Prakash was the duty officer who proved SC no. 48/13 Page 6 of 58 7 registration of FIR of the present case Ex.PW3/A; DD no. 43A regarding registration of this case Ex.PW3/C and; endorsement on rukka Ex.PW3/B. This witness also proved DD no. 35A, 40A and 41A as Ex.PW3/D, E & F. 4.2 PW4 ASI Ram Kumar was the In charge, PCR who reached the spot and shifted injured Pista to DDU hospital.
4.3 PW5 ASI SatyaVeer Singh was the Malkhana moharrar of the police station who deposed regarding deposition of the case property in the Malkhana and sending of the case property from the Malkhana to hospital/FSL vide entries in the Malkhana Register no. 19, Ex.PW5/A, B. 4.4 PW7 Raj Kumar & PW8 Praveen Kumar both identified the dead body of deceased Pawan before post mortem of the deceased was conducted.
4.5 PW9 HC Vijay Kumar was the photographer of the mobile crime team who took photographs of the crime scene, Ex.PW9/B-1 to B-
9. 4.6 PW10 SI Abhay Singh carried the exhibits of the case along with FSL form to CFSL, Kolkatta on 27.09.2006 and deposited them in the FSL, Kolkatta on 28.09.2006.
4.7 PW11 SI Mahesh was the draftsman who prepared scaled site plan of the place of incident, subsequently on 29.09.2006, on the basis of measurement and rough notes taken on 03.09.2006.
SC no. 48/13 Page 7 of 58 84.8 PW14 HC Kailash Chand simply carried the DD no. 41A from the police station to Inspector Suresh Chand at the spot qua death of Pawan.
4.9 PW15 ASI Bishambar took injured Sher Singh and Parmanand to DDU Hospital from the spot in the PCR. He was PCR Van Incharge.
4.10 PW20 Woman ASI Paricilla worked as duty officer in police station Uttam Nagar on 07.09.2006. This witness proved DD no. 18A qua departure of Inspector Suresh Chand to DDU Hospital for taking opinion of the doctor.
4.11 PW21 HC Azad Singh simply carried the copies of FIR to the senior officers.
4.12 PW22 HC Surender Singh proved DD no. 15 A dated 14.08.2006 Ex.PW22/A regarding departure of the investigating officer to police station Janak Puri, where the accused persons were lodged in the lockup as there was no lockup facility in police station Uttam Nagar at the relevant time. This witness also exhibited DD no. 9A dated 14.08.2006 which was lodged at 4.45 AM as Ex.PW22/B. DD no. 9A is regarding arrival of investigating officer after arrest of the seven accused lodged at 4.45 AM on 14.08.2006.
4.13 PW24 Ct. Jaipal proved DD no. 61B dated 14.08.2006 lodged at 9.50 PM regarding arrival of the investigating officer after his departure vide DD no. 15A Ex.PW22/A. DD no. 61B is proved as SC no. 48/13 Page 8 of 58 9 Ex.PW24/A.
5. From medical and scientific point of view, the witnesses examined in the matter are as follows :
5.1 PW23 Dr. Shefali was only partially examined in the matter. Her further examination in chief was deferred and thereafter this witness was not examined again and therefore, testimony of this witness has to be ignored. Even otherwise, she did not depose anything else besides stating that she could identify the handwriting and signatures of Dr. Swati and Dr. Ashish who had prepared MLCs of injured.
5.2 PW25 Roshan Lal was the concerned clerk from DDU Hospital who proved MLC of deceased Pawan Kumar as Ex.PW25/A & A1, by identifying signatures of Dr. Swati Aggarwal on the MLC.
5.3 PW26 Dr. Ashish proved the MLCs of, injured Parmanand(PW2) as Ex.PW26/A; Prakash(PW1) as Ex.PW26/B; Pista(PW13) as Ex.PW26/C; Dalip(PW6) as Ex.PW26/D and also the MLC of deceased Pawan as Ex.PW25/A & A1. Perusal of the MLC of Parmanand(PW2) would reveal that he sustained simple injuries in the nature of a contused lacerated wound beneath left eye and swelling around it. Prakash(PW1) also sustained single injury i.e. contused lacerated wound of approximately 2.5 cm x 0.5 cm x 0.5 cm on his right feet. On the MLCs of Pista(PW13), again simple injuries were noticed i.e. one contused lacerated wound of left hand below little finger and one contused lacerated wound over SC no. 48/13 Page 9 of 58 10 right frontal region of skull. MLC of Dalip (PW6) reveals simple injury i.e. contused lacerated wound over frontal region.
5.4 PW28 Dr. B. N. Mishra proved the post mortem report of the deceased as Ex.PW28/A. Dr. B. N. Mishra did not conduct post mortem. Post mortem was conducted by Dr. S. Deka. This witness also proved subsequent opinion given by Dr. S. Deka as to the weapon of offence as Ex.PW28/B. Perusal of the post mortem report would reveal that the deceased had following injuries :-
"Injuries : One stab wound of 6 cm x 1.5 cm over the left side of the chest, horizontally placed 4 cm lateral to left nipple and 28 cm above the left iliac crest, 14 cm from midline through the 4th and 5th intercostal space, penetrating through the muscle, pericardium and to the left ventricle of the heart 3 cms above the apex and 1.5 cm lateral to intraventricular septum, ending inside the left ventricle. Margins of the wound are clean cut, everted, spindle shaped, pericardial sac is full of clotted blood approx. 1 litre, Heart is empty and the incised wound is of 1.5 cm x 1 cm in the heart. Direction is from left to right, front to back below upward."
As per post mortem report, the cause of death of deceased was due to hemorrhagic shock consequent to the above mentioned injury on the chest which was ante mortem and sufficient to cause death. In the subsequent opinion Ex.PW28/B, the doctor who conducted post mortem opined that the injury mentioned in the post mortem report was possible by the weapon SC no. 48/13 Page 10 of 58 11 examined, a sketch of which was also prepared by the doctor in the subsequent opinion Ex.PW28/B. 5.5 PW29 Dr. Maninder Kaur identified hand writing of Dr. Mukesh in the MLC of Dalip Ex.PW26/D. 5.6 PW31 Dr. Rishi identified hand writing of Dr. Lucky in the MLC of Parmanand(PW2), Ex.PW26/A between point Y to Y. The said endorsement is regarding examination of the witness by the concerned eye specialist Dr. Lucky.
5.7 PW32 A. S. Dutta , the concerned CFSL expert from Kolkatta proved the viscera regarding analysis report of the deceased as Ex.PW30/M. In the viscera analysis of the deceased, no poison etc. was detected.
5.8 PW33 Pradeep Kumar the scientific officer from CFSL, Kolkatta proved his report Ex.PW30/N in which after examination of the 21 exhibits blood was detected on some of the articles as mentioned in the report itself and on other articles blood could not be detected.
6. From the police officials who went to the spot and conducted investigation, following witnesses were examined.
6.1 PW16 HC Ramphal accompanied Ct. Rajender and SI Mahesh to the spot on receipt of DD no. 35A. At the spot, blood was found lying. The injured had already been taken to the hospital. Thereafter investigating officer Inspector Suresh Chand went to SC no. 48/13 Page 11 of 58 12 the hospital. This witness was left at the spot to guard the spot. Subsequently, Inspector Suresh along with Ct. Rajender returned from the hospital, summoned the crime team and, conducted investigation at the spot.
6.2 PW17 HC Ashok Kumar is a witness qua seizure of the clothes of injured witnesses viz., Pista Devi, Ganga, Dalip Kumar, Prakash and Parmanand. The seizure memos vide which the clothes were taken into possession is proved as Ex.PW1/D, 13/A, 17/A, 2/A and 5/A. The witness also identified the clothes in the court.
6.3 PW18 Ct. Rajender accompanied HC Ramphal to the spot on receipt of DD no. 35A. Thereafter, Inspector Suresh also reached the spot. Then this witness Ct. Rajender and Inspector Suresh went to DDU Hospital. In the hospital, complaint of Prakash was recorded on which rukka was prepared and the case was got registered through this witness. After getting the case registered, the witness returned to the spot with copy of FIR and original rukka. The witness also is a witness to the collection of exhibits by the investigating officer at the spot and also the arrest of the six accused persons, besides accused Sher Singh, from Uttam Nagar bus terminal, that very night. This witness also witnessed the recovery of dragger got effected by accused Jogender pursuant to his disclosure statement.
6.4 PW19 Lady Ct. Rekha is a witness qua arrest of lady accused in the present matter.
SC no. 48/13 Page 12 of 58 136.5 PW27 Inspector R. S. Meena reached DDU Hospital where he took accused Sher Singh in custody since Sher Singh was also injured in the incident and was under treatment in DDU Hospital. He took accused Sher Singh to the spot from hospital and handed over the custody of Sher Singh to the investigating officer.
6.6 PW30 Inspector Suresh was the investigating officer of this case.
This witness deposed that when he reached the spot on getting information, he found SI Mahesh, Ct. Rajender and Ct. Ramphal at the spot. Injured had already been taken to the hospital. However, blood and some other articles were lying at the spot. He went to the hospital along with Ct. Rajender. In the hospital, MLCs were collected and complaint of PW1 Prakash was taken down. On the complaint of PW1 rukka was prepared and Ct. Rajender was sent to the police station for getting the case registered. Thereafter, he along with complainant Prakash returned to the spot. At the spot, site plan was prepared, the crime scene was got inspected and photographed by the mobile crime team and, exhibits were collected. From the spot, sample blood on cotton swab; blood stained marble piece from the chabutra; sample marble piece from chabutra; blood stained broom; one pair of blue colour blood stained chappal; one black colour left foot chappal; blood stained pillion rider seat of a scooter, one half bottle of liquor; one bamboo danda and some broken glass pieces, were taken into possession after sealing them vide memo Ex.PW12/A. It is also deposed by the investigating officer that thereafter on an information the accused persons besides Sher Singh were SC no. 48/13 Page 13 of 58 14 apprehended from Uttam Nagar bus terminus at about 2.30 AM in the intervening night of 13 & 14 August, 2006. Arrest memos and personal search memos of the accused persons were prepared. Accused Jogender made a disclosure statement Ex.PW1/E and thereafter he got recovered the dragger from the roof of washroom in front of his house near the spot. The blood stained clothes of accused Jogender were also taken into possession after sealing the same vide seizure memos Ex.PW12/B & C. Before the dagger was seized, its sketch Ex.PW1/B was prepared. Thereafter, accused Sher Singh was arrested, who was brought by Inspector R. S. Meena. Blood stained clothes of accused Sher Singh were also taken into possession vide memo Ex.PW12/F. During investigation post mortem was got conducted and the exhibits were sent to the FSL, subsequent opinion as to weapon of offence was also obtained. The witness also identified the case property in the court and also the accused persons.
7. The eye witnesses to the incident PW1 Prakash Nagar, PW2 Parmanand, PW6 Dalip Nagar, PW12 Sunil Kumar and PW13 Pista, all supported the case of prosecution in Toto. All of them also identified the accused persons in the court and the witness also identified the case property in the court.
8. On completion of prosecution evidence all the incriminating evidence was put to the seven accused persons in their examination U/s 313 Cr.P.C. The accused persons generally denied the evidence against them.
SC no. 48/13 Page 14 of 58 158.1 Accused Sher Singh claimed that though he was present at the spot with his wife accused Premwati, but his sons and other accused were not present there and rather his sons were present at Janak Puri and other places where they used to iron clothes of others. Sher Singh stated that in fact the complainant Prakash along with Parmanand and Dalip attacked his wife, and the police instead of booking them picked the accused falsely. Sher Singh claimed that he was picked up by the police from his residence on 13.08.2006 and that Premwati and his sons were apprehended when they were returning to their residence. He claimed that from his house, he was taken to DDU Hospital along with Parmanand. Sher Singh claimed that he did not give any beating to anybody and instead he and his wife received injuries from the complainant side. He denied the version of the prosecution witnesses and claimed that he did not sustain injuries due to fall in the gali. He claims that instead Prakash was carrying a knife and Dalip and Pawan caught hold of this accused and when Prakash inflicted a knife injury on his head, he tried to save himself and then Prakash attempted another blow. The second blow by Prakash landed on the body of Pawan causing injuries to Pawan. Sher Singh claims that he did not exhort anything to anybody at the spot. He also claims that Hemlata and Pintu were not even present at the spot. Rather, Hemlata her daughter-in-law returned later on from her parent‟s home with her brother Pintu, but they also were implicated. He also claims that his clothes were not taken into possession by the investigating officer. He claimed that witnesses deposed SC no. 48/13 Page 15 of 58 16 against him falsely being interested witnesses. However, he admits that a fight between him, his wife on one side and the victims on another side took place because of spilling of water from the water tank on the roof of house of complainant due to which water spilled on the clothes which were being ironed or kept for ironing by them. When he and his wife objected to it, Parmanand telephonically called his sons Prakash and Dalip who came to the spot with driver Pawan and thereafter they assaulted him and his wife.
8.2 Similarly, accused Premwati claimed that only she and her husband were present at the time of incident. She claimed that at the time of incident, her sons, Hemlata and, Pintu were not present. Hemlata had gone to her parental house. When water started falling, her husband accused Sher Singh went to house of Prakash. Prakash came out of his house and told Sher Singh that they would not stop their water pumping motor and said that accused may do whatever they like. Prakash then called his associates and her husband was beaten who fell unconscious. When she went to rescue her husband, even she was assaulted. She claimed that she sustained two stab injuries on her left hand and that in fact Prakash was carrying the knife and he attacked her husband with knife. She also claimed that she was taken to the police station on 13.08.2006 and that they have been falsely implicated by the interested witnesses. She claimed that she was inside her house at the time of incident. She claimed that it was dark at that time, therefore, she cannot say as to what happened SC no. 48/13 Page 16 of 58 17 and rather she was given beatings by someone inside her house, but due to darkness, she could not identify who gave beatings to her.
8.3 When incriminating evidence was put to accused Jogender, even he claimed that he was not present at his house at the time of incident, but was present at his work place, as his wife who used to iron the clothes had gone to her parent‟s house, therefore, he was doing that work of ironing at Arya Samaj Road, Mini Stand, near Canara Bank, Uttam Nagar. When he returned from his work to his house on 13.08.2006, he was picked up from outside the house and implicated in this case. He claimed that no knife/dagger was recovered by him and it is planted upon him by the police. He also claims to have been implicated falsely in the present case.
8.4 Similarly, accused Hemlata claimed that she was not present at the house at the time of incident. Rather she had gone to her parent‟s house in Bulandshahar, U.P., at that time. She claimed that when she returned to the house on 13.08.2006 with her brother Pintu and she was entering her matrimonial house, there was no electricity in the gali and when she reached staircase of the house, she and Pintu were dragged. Those persons also took away their bags and belongings but she could not see their faces and then she was taken to the police station where her thumb impressions were taken on blank papers. She claimed that she was also falsely implicated by the witnesses.
SC no. 48/13 Page 17 of 58 188.5 Even Pintu claimed that he along with Hemlata returned to the matrimonial house of Hemlata on 13.08.2006 in the night and when they were entering the house, there was no electricity, some persons from local public caught them and later on they were taken to the police station. Even this accused claimed that he could not see the faces of those local public persons who so took them from the house. In the next breath, the accused claimed that he was picked up by the police from the house of his sister Hemlata and that he was arrested in the present case falsely.
8.6 Accused Krishan also claimed that he was also not present at the house at the time of incident. He claims that he had gone to his work place at Kakrola Village towards Najafgarh near Sai Baba Mandir, where he was doing the work of white wash in someone‟s house. He claimed that even he was picked up by the police from his house on 13.08.2006 at 9.00 PM after he had returned from his work and that he was not present at the time of incident at the spot. He claimed that he did not witness any offence and he did not know who killed Pawan.
8.7 Accused Veer Singh also claimed that he was not present at the spot at the time of incident. Rather he was present at Janakpuri, Uttam Nagar, where he used to iron clothes and where he was running a stall of ironing clothes. He claims to have been apprehended when he was returning to his house on 13.08.2006 from his work place from the gali near his house. The accused also claimed that he was made to take off his clothes which he SC no. 48/13 Page 18 of 58 19 was wearing after he was picked up by the police. Even he claims false implication in the matter.
9 The accused persons examined one defence witness DW1 Desraj in their favour. The witness DW1 simply proved the MLCs of accused Sher Singh and accused Premwati as Ex.DW1/1 & DW1/2 from DDU Hospital where this witness worked as a record clerk.
9.1 Besides this defence witness, no other defence witness was examined by the accused. Although, all the accused persons claimed that they have been falsely implicated in the present matter but none of them, more particularly, the accused persons besides Sher Singh and Premwati came up with any explanation whatsoever as to why they would be implicated falsely in the present matter and as to why the prosecution witness would depose falsely against them.
10 Besides the injured witnesses PW1 Prakash Nagar, PW2 Parmanand, PW6 Dalip Nagar and PW13 Smt. Pista, prosecution also examined one independent witness PW12 Sunil. No imputations are attributed to Sunil as to why he would falsely depose against the accused or in favour of the complainant. Similarly, there is no plausible reason put forth as to why the police would falsely implicate the accused persons which admittedly had no enmity with the accused.
11 I have heard Ld. Prosecutor for the State and Ld. Counsel for the SC no. 48/13 Page 19 of 58 20 accused.
12 As many as five eye witnesses to the incident have been examined by the prosecution. Out of those five witnesses, the complainant and his family members are PW1 Prakash Nagar (the complainant); PW2 Parmanand Nagar (father of complainant); PW6 Dalip Nagar (brother of complainant) and; PW13 Smt. Pista (Sister of the complainant). All these four witnesses i.e. the complainant and his family members were injured in the incident itself, therefore, they are injured witnesses.
13 An injured witness has a special status in law. Very strong and cogent reasons are required to disbelieve testimony of injured witness. The very fact that a witness is injured in an incident ensures the fact that the witness was present at the spot. The very injury on a witness acts as a guarantee that the witness was indeed present at the spot. The fact that these four witnesses sustained various injuries ensures that they were present at the spot at the time of incident.
13.1 In the case of Mano Dutt v. State of U.P., (2012) 4 SCC 79 at page 90 it is held as follows;
"31. We may merely refer to Abdul Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] where this Court held as under: (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself SC no. 48/13 Page 20 of 58 21 injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. „Convincing evidence is required to discredit an injured witness.‟ [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881 : 1973 SCC (Cri) 563] , Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919] , Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] , Appabhaiv. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559] , Bonkya v. State of Maharashtra[(1995) 6 SCC 447 : 1995 SCC (Cri) 1113] , Bhag Singh [Bhag Singh v. State of Punjab, (1997) 7 SCC 712 : 1997 SCC (Cri) 1163] , Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p.
606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472] , Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] , Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v.State of Maharashtra [(2010) 6 SCC 673 :
SC no. 48/13 Page 21 of 58 22(2010) 3 SCC (Cri) 211] .]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) „28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube well.
In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2013] a similar view has been reiterated observing that the testimony of a stamped witness has its own SC no. 48/13 Page 22 of 58 23 relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.‟
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
To the similar effect is the judgment of this Court in Balraje [(2010) 6 SCC 673 : (2010) 3 SCC SC no. 48/13 Page 23 of 58 24 (Cri) 211] ."
14 Prosecution also examined one independent witness PW12 Sunil Kumar, who is not related to either the deceased or the injured witnesses. He corroborates the testimony of injured witnesses.
15 All the above mentioned five eye witnesses to the incident supported the prosecution case in Toto. Witnesses Prakash, Pista Devi & Sunil deposed that initially there was abusing and initially the fight was between the female members of the two sides. That fight later on took an ugly turn when the male members accused Sher Singh & Joginder also jumped into the fight. Accused Sher Singh called his sons upon which accused Krishan, Veer Singh, and Pintu brother-in-law of accused Jogender, also came out of their house. Accused Jogender brought a dagger. Accused Kishan was armed with a danda. Accused Veer Singh was armed with a glass bottle. Pintu was unarmed. It was accused Sher Singh who exhorted that first deceased Pawan, the driver of complainant Prakash, be taught lesson. It was thereafter that accused Krishan & Veer Singh caught hold of deceased Pawan. When the complainant tried to rescue deceased Pawan, the complainant was caught hold of by Premwati, Hemlata and Pintu. Accused Jogender stabbed the deceased Pawan with the dagger, he was carrying. Only one blow was given. The blow given by Jogender landed on the left side of chest of deceased. Deceased fell down. None of the witnesses have stated that after the deceased fell SC no. 48/13 Page 24 of 58 25 down, the deceased was further beaten or dealt with cruelly. When Prakash shouted for help, PW2 Parmanand and PW6 Dalip also came out of the house. At that time, accused Krishan gave danda blow to Parmanand and Dalip. Accused Veer Singh assaulted Parmanand and Smt. Pista with the glass bottle. When neighbours collected, the accused persons fled from the spot. However, accused Sher Singh was apprehended after he sustained injuries and later on he was also taken to the hospital by the PCR.
16 From the evidence, it would be clear that the fight between the two sides took place because of spillage of water from the overflowing overhead water tank from the complainant side which fell on the ironing table of the accused side, spoiling the clothes kept for ironing. It has also come in the evidence of eye witness that on earlier occasions also for the same reason, there was a dispute between the two sides. There is although no earlier complaint or case registered against either of the side, but one fact is not denied by the either side that due to the water spilling on the clothes of the customers of the accused, there used to be a tension between the two sides.
17 On the date of occurrence also, the fight started for that very reason. It is nobody‟s case that fight was pre-meditated. Initially only abuses were exchanged. When the deceased, who was driver of complainant Prakash and who was standing on the chabutra outside the house of complainant, objected to the abuses along with complainant, that enraged accused Sher Singh and SC no. 48/13 Page 25 of 58 26 Jogender upon which other family members were called by the accused and then the complainant and deceased were attacked.
18 Perusal of the cross examination of the eye witnesses to the incident would reveal that there is no major contradiction or improvement in the testimony of these eye witnesses, so as to render their testimonies doubtful in any manner. Nothing material has been brought in the cross examination of these witnesses in order to impeach their creditworthiness. Not only injured witnesses have been examined but also one independent eye witness PW12 Sunil has been examined. The said independent witness has also supported the case of prosecution and supported the version of the injured witnesses. Indeed there are some minor contradictions in the testimonies of the eye witnesses, but all those contradictions are very trivial in nature and does not affect the root of the prosecution case. These witnesses were examined in the court after a considerable lapse of time and therefore, those minor contradictions were bound to occur. Those contradictions cannot be therefore given any undue weightage to discredit any of the eye witness.
19 Ld. Counsel for the accused argued that the prosecution did not prove that the deceased was engaged as a driver by the complainant or that the deceased was a resident of village Budhela. It is also argued by him that no documentary proof to show employment of the deceased with the complainant has been proved.
SC no. 48/13 Page 26 of 58 2720 The argument of the accused is fallacious. The fact in issue in the present case is not whether the deceased was in employment of complainant or not. The issue here is whether his murder was committed by the accused persons or not. Presence of deceased at the spot is established by the injured witnesses and the independent witness. Presence of deceased is also established from the FSL result which matches the blood group of the deceased taken from his body by the doctor with the blood found lying at the spot. All the witnesses including the independent eye witness categorically deposed that the deceased was a driver of the complainant. There is no requirement in law to prove employment of the deceased as driver of the complainant through any documentary proof. Also, there is no dispute as to the place of residence of the deceased which is not a question to be decided in this case.
21 It is argued on behalf of accused that there is a delay in lodging of the FIR as the incident in question occurred at 8.00 PM whereas the rukka was dispatched at 11.25 PM.
21.1 Perusal of DD no. 35A Ex.PW3/D would reveal that the first information of this case was received in police station Uttam Nagar at 8.45 PM. HC Ramphal, Ct. Rajender and SI Mahesh Kumar were directed to attend the said call. Thereafter, SHO Inspector Suresh Chand also left for the spot at 9.10 PM. The SHO first went to the spot and then went to the DDU hospital. At DDU hospital, statement of PW1, Ex.PW1/A was recorded on which rukka was prepared and the rukka was dispatched for registration of FIR. The deceased SC no. 48/13 Page 27 of 58 28 Pawan was admitted in the DDU Hospital at 9.15 PM. he was got admitted by PW1 Prakash. When Inspector Suresh left police station for the spot and then reached DDU hospital, this process must have consumed some time. He left the police station at 9.10 PM only. Therefore, he must have reached DDU hospital by around 10 PM only. Thereafter upon calling the MLCs of the deceased as well as the injured, the statement of Prakash was taken down. In such circumstances, some amount of time indeed must have been consumed and therefore the dispatch of rukka at 11.25 PM cannot be called as a delay in registration of case. It is not a case where no information of the incident at all was received in the police station up to 11.25 PM. Even otherwise this delay of few hours in lodging of the FIR, which otherwise stands explained from the above discussion, cannot be a reason to suspect the testimonies of injured witnesses. After all, the injured witnesses have no plausible reason to falsely implicate the accused persons and to let go the actual assailants. More particularly, PW12 Sunil has no reason to falsely support the complainant or to depose against the accused.
21.2 In Gurmail Singh v. State of Punjab, (2013) 4 SCC 228, it was contended that there was considerable delay in lodging the FIR and also in sending the special report to the Ilaqa Magistrate. The incident took place on 10-3-1989 at about 9/9.30 p.m. and the FIR was lodged at about 11.30 p.m. There was, therefore, a delay of about two hours in lodging the FIR. SC did not think this delay as per se unreasonable. It was observed as follows :
SC no. 48/13 Page 28 of 58 29"33. In situations such as the present one, a realistic and pragmatic approach is necessary. It is not as if the incident of firing and inflicting of gandasa- blows was over within a minute or so. The entire incident would have taken some time, and thereafter, the victims would have to recover from the shock and trauma caused by injuries suffered by them and make arrangements for medical treatment. Often several emergent issues need attention and so, it is not as if the moment an incident is over, someone is expected to rush to the police station for lodging an FIR. However, if there is an unreasonable or unexplained delay in lodging a complaint, an argument can surely be made, but it is wrong to make a fetish out of every delay in lodging an FIR. Given the facts of this case, we do not think there was any unreasonable or unexplained delay in lodging an FIR.
34. In this context, we may only refer to a recent decision of this Court (authored by one of us, Swatanter Kumar, J.) in Jitender Kumar v. State of Haryana [(2012) 6 SCC 204 : (2012) 3 SCC (Cri) 67] , in which it was held: (SCC p. 219, para 43) "43. It is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given SC no. 48/13 Page 29 of 58 30 circumstances of a case, delay in lodging the FIR can be one of the factors which corrode the credibility of the prosecution version. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The court has to seek an explanation for delay and check the truthfulness of the version put forward. If the court is satisfied, then the case of the prosecution cannot fail on this ground alone."
22 It is next argued by the accused that injuries on the persons of accused Sher Singh and Premwati have not been explained by the prosecution witnesses and therefore, their testimonies should be discarded.
22.1 Perusal of MLC of Sher Singh, Ex.DW1/A, would reveal that he suffered only one injury i.e. contused lacerated wound over right parietal region measuring 5 x 0.5 x 0.5 cms. The said injury was opined to be simple in nature. This accused Sher Singh was admitted in the hospital by HC Bishambar from PCR at 9.35 PM. The history as told by accused Sher Singh himself was assault. Similarly, MLC of Premwati Ex.DW1/2 would reveal that she had two contused lacerated wound on left forearm. Her injuries were also simple in nature. This accused, however, did not go to the hospital after the incident, either by someone, on her own. But she was taken to the hospital by Lady Ct. Rekha at 4.15 AM on 14.08.2006. This accused was therefore taken for her medical SC no. 48/13 Page 30 of 58 31 examination after she was apprehended in the present matter. Even she disclosed the history of injuries as assault. The injuries suffered by Premwati and Sher Singh both are simple in nature and insignificant enough to create any doubt about the version of the eye witnesses. It has come in the evidence that when assault took place, Sher Singh tried to flee and fell down and was apprehended by the public.
22.2 In Gurmail Singh v. State of Punjab, (2013) 4 SCC 228 it is held as follows;
"45. As long as the evidence on record is trustworthy (and it has found to be so by both the courts below) the failure of the prosecution to explain the injuries on an accused person may not necessarily adversely impact on its case. In a recent decision Mano Dutt v. State of U.P. [(2012) 4 SCC 79 :
(2012) 2 SCC (Cri) 226] (authored by one of us, Swatanter Kumar, J.) it was held as follows: (SCC p. 94, paras 38-40) "38. ... this Court has taken a consistent view that the normal rule is that whenever the accused sustains injury in the same occurrence in which the complainant suffered the injury, the prosecution should explain the injury upon the accused. But, it is not a rule without exception that if the prosecution fails to give explanation, the prosecution case must fail.SC no. 48/13 Page 31 of 58 32
39. Before the non-explanation of the injuries on the person of the accused, by the prosecution witnesses, may be held to affect the prosecution case, the court has to be satisfied of the existence of two conditions:
(i) that the injuries on the person of the accused were also of a serious nature; and
(ii) that such injuries must have been caused at the time of the occurrence in question.
40. Where the evidence is clear, cogent and creditworthy; and where the court can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are not explained by the prosecution cannot, by itself, be the sole basis to reject the testimony of the prosecution witnesses and consequently, the whole case of the prosecution. Reference in this regard can be made to Rajender Singh v. State of Bihar [(2000) 4 SCC 298 : 2000 SCC (Cri) 796] , Ram Sunder Yadav v. State of Bihar [(1998) 7 SCC 365 : 1998 SCC (Cri) 1630] and Vijayee Singh v. State of U.P. [(1990) 3 SCC 190 : 1990 SCC (Cri) 378] "
22.3 The fact that Sher Singh was also taken to the DDU Hospital by the PCR Van official further corroborates the testimonies of the SC no. 48/13 Page 32 of 58 33 witnesses of the prosecution. Even otherwise in such an incident involving few persons from both the fighting sides, one cannot expect that one party will not receive any injury and the second party would receive all the injuries. Obviously in such a case of free fight between the parties, either in self defence or as an offensive, the party at receiving end is also bound to react. In such circumstances, existence of simple injuries either on Sher Singh or Premwati does not create any doubt about the version of the prosecution witnesses.
23 It is also argued by the accused that there are contradictions in the testimony of witnesses as to who abused whom; who came first; who came later on; who caught hold of which of the victim and; who exactly did which act or dealt with which blow, creating doubt about the version of prosecution witnesses. As mentioned above, contradictions pointed out are trivial in nature, not affecting the roots of prosecution case at all. One cannot lose sight of the fact that whenever such an incident occurs, as the present one, involving many persons from both the sides, it would be very difficult for each of the person to minutely observe as to who said what, who did what, in what sequence etc. Such persons not only cannot observe such details but also cannot remember and recollect such minute details after a long time. After all, in such incidents effort of a person would be first of all to save himself and then to save his family members and near and dear ones. When many persons armed with weapons attack some persons on the other side, it cannot be expected that the victim side has to SC no. 48/13 Page 33 of 58 34 remember details like who came from which direction, who said what, who was carrying what and, who gave first blow followed by the blows by others etc. 23.1 In CRL.A.819/2011 RAVI KUMAR & ORS. Versus STATE decided on 30.05.2014, Hon‟ble Delhi High court observed that minor discrepancies are bound to occur due to normal errors of perception and observation, errors of memory due to lapse of time, mental disposition due to shock and horror at the time of occurrence. In fact such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of the version. If, on the other hand, witnesses give evidence with mechanical accuracy, it could be cogitated that they were giving tutored versions. The question is whether embellishments in statement of witnesses can destroy the core of the prosecution story. Minor contradictions appearing in the testimony of the witnesses does not materially affect the core of the prosecution case nor render the testimony of the witnesses liable to be discredited.
23.2 These contradictions therefore have to be ignored.
23.3 Similarly, the claim of accused that whether complainant Prakash was on the fourth floor of his house or any other floor and what exactly he was doing before he came down, is not a contradiction affecting his creditworthiness. After all complainant Prakash upon reaching his house left his deceased driver outside his house and he went upstairs to do some work because he had to shortly leave SC no. 48/13 Page 34 of 58 35 for some other destination. When he heard noise of quarrel of females, he came downstairs and then saw that accused Hemlata and Premwati were abusing Smt. Pista and mother of complainant. It was thereafter that accused Sher Singh and Jogender jumped into the quarrel and started abusing the females of the complainant side. It was then that the complainant and the deceased objected to the abuses and then accused Sher Singh called for his other sons and weapons and then the assault begun. Whether the complainant was on fourth floor or his so called temporary office was on third floor is not a question which affects the creditworthiness of this witness.
24 It is next argued by the counsel for accused that another eye witness Satish and other independent witnesses from the locality have also not been examined. It is argued that admittedly other neighbourers also witnessed the incident but they were not examined.
24.1 As mentioned above, five witnesses have been examined in this case. All these five witnesses were eye witnesses to the incident. They include one independent public witness who was not related to the complainant or the deceased. It is the quality of evidence which matters and not quantity. If an incident is witnessed by hundred persons, law does not mandate that all those hundred persons have to be examined and even if 99 of them are examined, those 99 must be disbelieved because of non- examination of one person. There can be a number of reasons for SC no. 48/13 Page 35 of 58 36 the neighbours not willing to become witnesses. In the present matter, both the sides were immediate neighbours, their houses were located nearby. Thus, for neighbours it becomes difficult choice sometimes to come and depose against the offenders fearing backlash or strained relations from the party against whom deposition is to be given. Can testimonies of injured witnesses supported by an independent witness be disbelieved merely because other independent witnesses were not examined? In my considered opinion, the answer has to be categorically in the negative.
25 Absence of any complaint qua the earlier quarrel between the parties on account of spillage of water is not a reason to doubt that the present incident did not occur. The identity of the accused persons is also not doubtful for the reason that the accused persons admittedly had shifted to their house around six months before the incident. Thus, it was not difficult for the complainant neighbourers to clearly recognize the accused persons and to know their names being neighbourers. Particularly, this has to be viewed in the light of the fact that there was earlier also some quarrel between the parties for the same reason. Ld. Counsel for the accused argued that at the time of incident, there was no light and therefore, the identity of accused becomes questionable. I do not see any such doubt as to the identity of accused. All the eye witnesses including the independent witness have specifically identified and named the accused persons. It is not a case where strangers attacked the deceased and the complainant. In their SC no. 48/13 Page 36 of 58 37 statements, accused Sher Singh and Premwati also admitted that indeed a quarrel started between them and the complainant side because of spilling of water. Instead Sher Singh and Premwati claim that they were beaten by the complainant side. Therefore, the incident of quarrel between the accused and the complainant is not disputed. It is nobody‟s case that between the quarrel amongst the complainant and the accused and the subsequent assault, there was any gap of time in which somebody else must have come and assaulted the deceased and the complainant. Rather the testimonies of the eye witness would establish that the incident occurred in one go continuously.
26 It is also argued by the accused that the complainant did not take the deceased to the nearest hospital and he also did not take his another car while shifting the deceased to the hospital. I do not see any force in this contention. As per the version of the eye witness, DDU was the nearest and biggest government hospital near the crime scene. There can be a number of reasons as to why in such cases a deceased is not taken to a private hospital falling in between. After all it was a police case and complainant must have thought it proper to take the deceased to a government hospital instead of private hospital. His eye witness account cannot be doubted for the reason that he chose to take the deceased to a bigger hospital ignoring some smaller nursing homes falling on the way. Which car the complainant chose to shift the deceased to hospital cannot be viewed with suspicion. After all, it was for the complainant to see as to which was the SC no. 48/13 Page 37 of 58 38 immediately available car whose keys were available instantly to save time and what was good for him to do for the deceased. One should not forget that after witnessing such dagger blow on the chest of his driver, the complainant cannot be expected to behave in a particular manner. Behavior of a person varies particularly after witnessing such crimes.
27 Recovery of the dagger from the roof of the wash room outside the house of accused at the instance of accused Jogender is sought to be doubted by the counsel for accused claiming that it was an open and accessible place and that none of the witnesses deposed that they saw accused Jogender throwing the dagger on the roof of the wash room at the time when he was fleeing from the spot.
28 The recovery witnesses from the police have all consistently deposed that after accused Jogender was apprehended from Uttam Nagar Bus terminus along with his other family members besides accused Sher Singh, he made a disclosure statement and then got the dagger recovered. Their testimony is supported by PW1 Prakash Nagar as well as PW12 independent witness Sunil. Signatures of both these witnesses exists on the recovery memo of the dagger. Sketch of dagger was prepared after the recovery of dagger. Even sketch of dagger is witnessed by these two witnesses besides the police officials. As mentioned above, I do not see any reason to disbelieve the testimonies of PW1 & PW12. Even otherwise, the police official witnesses have no reason to SC no. 48/13 Page 38 of 58 39 falsely depose against accused Jogender on that aspect of the matter. The roof of the wash room from where the dagger was recovered was located admittedly outside the house of the accused. Merely because the independent witnesses did not see the accused throwing the dagger on the roof cannot be a reason to disbelieve this fact. At that time, the attention of the witness was more towards the injured Pawan and their priorities was to shift him to the hospital instead of continuously looking at the accused Jogender as to how he was running, where he was running and what he was doing. Roof of the wash room of the accused Jogender cannot be said to be an open and accessible place. The said place was not open and accessible to all & sundry. The persons passing by from the gali could not have even seen the dagger lying on the roof. Therefore, recovery of the dagger from the roof of the wash room was a peculiar fact, peculiar to the knowledge of Jogender and it is that knowledge of Jogender which gains significance. It is that part of statement which is relevant U/s 27 of Indian Evidence Act. The photographs Ex.PW12/D-1 to D5 would reveal that the height of the wash room from where the dagger was recovered was more than ten feet. The said wash room is located on the chabutra in front of the house. If a person stands in gali, one cannot see what is lying on the roof of the said wash room. Even otherwise even if in this case one disbelieves the factum of recovery of dagger, the eye witnesses account cannot be brushed aside. The eye witnesses account in the present case would alone be sufficient to nail the accused.SC no. 48/13 Page 39 of 58 40
29 Ld. Counsel for the accused also argues that there is doubt as to from where accused persons were apprehended besides the accused Sher Singh. The witnesses have deposed that the accused persons were apprehended from Uttam Nagar Bus Terminus, except accused Sher Singh. The MLC of accused Sher Singh Ex.DW1/A establishes beyond doubt that he was taken to DDU Hospital by the PCR Van. He reached the hospital at 9.35 PM. When Inspector Suresh Chand reached hospital, Sher Singh was present in the hospital. Inspector R. S. Meena also reached the hospital, apprehended accused Sher Singh and brought him to the spot. The other accused persons were apprehended from the bus stand. Except for some minor contradictions in the testimonies of the witnesses, nothing serious came on record as to the manner of apprehension of accused from the bus terminus. The accused persons were apprehended on that very night is not denied by the accused. The accused have claimed in their statements that when they returned to their houses from different places, they were apprehended. Arrest of Premwati on that very night gets corroborated from the fact that even she was taken to the hospital at 4.15 AM by W/Ct. Rekha. W/Ct. Rekha also supported the case of prosecution as to the arrest of these accused from Uttam Nagar Bus Terminus. Thus, I do not find anything suspicious in the manner of arrest of accused. Even otherwise more than the manner of arrest of accused, what would be important in the present manner is the manner of their overt acts at the crime scene and the part played by them.SC no. 48/13 Page 40 of 58 41
30 The accused persons also got recovered their blood stained clothes. Vide Ex.PW12/B blood stained Kurta of accused Jogender was taken into possession after his apprehension. This kurta was sent for forensic examination. It was found containing blood of human origin of „A‟ group. The dagger got recovered by accused Jogender was also sent for forensic examination. On the dagger blood of human origin was found but the blood grouping was inconclusive. Accused Jogender did not explain as to how blood came to be existed on his kurta and on the dagger got recovered by him.
31 Clothes of accused Veer Singh, i.e. one vest and pyjama, were also recovered which were also blood stained. In the forensic examination, even his clothes were found to be containing blood stains of human origin of „A‟ group.
Kurta of accused Sher Singh was also seized which also contained blood of human origin but his blood group could not be determined conclusively.
32 The clothes of deceased and the blood sample of deceased collected by the doctor were also subjected to forensic examination. The clothes of deceased and his blood sample were found to be of „A‟ blood group. The clothes of deceased were blood stained with the said blood group which includes one pant, shirt and underwear. Thus, it is established that the deceased had „A‟ blood group. The same „A‟ blood group existed on the kurta of Jogender. Though the exhibits collected from the spot could not establish the blood group exactly but that does not create any SC no. 48/13 Page 41 of 58 42 doubt as to the place of incident or the manner of incident.
33 Though all accused besides Premwati and Sher Singh claimed that they were not present at the place of incident at the time of occurrence or that they were present at different places but none of those accused examined anybody in support of their plea of alibi. Once accused Jogender, Krishan, Veer Singh, Hemlata and Pintu took plea of alibi, the onus was on them that they were present elsewhere. Hemlata and Pintu did not examine anybody from their families to show that they were present at her parent‟s house. Similarly, Jogender, Krishan and Veer Singh did not examine anybody. Thus, these accused failed to prove their claim of alibi to the satisfaction of this court. Though all accused besides Sher Singh claimed that they were not apprehended from Uttam Nagar bus terminus, but in the cross examination of PW1 and PW12 Sunil, it was not even suggested as to from where they were apprehended, if they were not apprehended from Uttam Nagar Bus terminus.
34 Not much can be read in the stray statement of PW1 that accused Veer Singh was caught at the spot and other accused fled. In his cross examination this witness clarified that it was Sher Singh who was apprehended at the spot and not Veer Singh. Similarly, not much can be read from the stray statement of PW1 that Sher Singh was already abusing the complainant side with his wife and daughter-in-law since that fact was also clarified by the witness in his cross examination that Sher Singh came later on and initially SC no. 48/13 Page 42 of 58 43 Premwati and Hemlata were abusing. When the court appreciates evidence of witnesses, it is the entire evidence of a witness which has to be read and then appreciated and some stray statements cannot be read in isolation to demolish the case of prosecution. What is to be seen in such cases is as to what is the effect of the entire evidence of witness and what the witness actually intends to say. Similarly, PW1 also clarified that the accused persons were apprehended from Uttam Nagar bus terminus and not metro station.
35 When PW2 came out of the house along with PW6 after the deceased was stabbed, at that time people present outside were shouting that it was accused Jogender who had inflicted injuries on the deceased. Thus, even though PW2 Parmanand did not see Jogender hitting Pawan and also Dalip did not see it, but the fact that at that time people present there were shouting that Jogender hit Pawan is admissible as res gestae. In the cross examination of PW2, accused admitted that the quarrel started on the point of overflow of water and that previously also quarrel occurred on that account and previously also the accused used to object overflowing of water. PW2 also clarified that he had himself seen dagger in the hand of Jogender when the accused were running away from the spot. In the cross examination of PW2 presence of Sher Singh and Premwati are admitted.
36 The sum & substance of the above discussion is that the prosecution proves beyond reasonable doubt that the fight between the two families started on the question of spilling of SC no. 48/13 Page 43 of 58 44 water; abuses commenced between the lady members of the two sides; accused Sher Singh and Jogender also jumped in the said fight and started abusing the complainant side; on being objected to, other sons were called by accused Sher Singh, with arms; thereafter accused Sher Singh exhorted and then accused Krishan and Veer Singh caught hold of deceased and accused Jogender gave a dragger blow on his chest. Other injured were subsequently given beatings in the manner as mentioned above.
37 That brings us to the question as to under what provisions the accused persons can be found guilty. Question is whether it is a case of Sec. 302 of IPC or at the most it is a case U/se 304 of IPC. Once that question is answered, it will have also to be seen as to which all accused can be convicted U/s 302 or 304 r/w 34 of IPC and which accused can be convicted for any other offence.
37.1 Taking up the first question whether Sec. 302 or Sec. 304 IPC is made out, as is clearly evident from the above discussion, the fight between the two families was sudden and not pre meditated. The fight occurred over a petty issue of falling of water from the overhead tank. Initially there were abuses exchanged between the ladies. The said verbal abuses took an ugly turn when the male members also involved themselves. It has also come in the evidence that accused Sher Singh exhorted his son Jogender to call his other brothers and to bring weapons. Upon it, Jogender brought dagger, Veer Singh brought glass bottle and, Krishan brought danda. Admittedly, Pintu was not armed with any weapon SC no. 48/13 Page 44 of 58 45 when he came out of the house. Similarly, Hemlata and Premwati were not armed with any weapon. It is nobody‟s case that Sher Singh was armed with any weapon or that he picked up any weapon from anywhere. After Jogender, Veer Singh and Krishan brought their respective weapons, deceased was caught hold of by Veer Singh and Krishan. Jogender then gave a single blow from the dagger which landed on the chest of the deceased. The deceased thereafter fell on the ground. It is nobody‟s case that once the deceased fell on the ground, any other blow was given to him by any of the seven accused. Thus, the case falls within the fourth exception of Sec. 300 of IPC and therefore, it is Sec. 304 of IPC which gets attracted and not Sec. 302 of IPC. In this regard, one may refer to the following judgments.
37.2 In the case of Ankush Shivaji Gaikwad Vs. State of Maharashtra 2013 Crl.Law Journal 3044, the facts were, that the appellant accompanied by other two accused were walking past the field of the deceased when a dog owned by the deceased started barking at them. Angered by the barking of the animal, the appellant is alleged to have hit the dog with the iron pipe that he was carrying in his hand. The deceased objected to the appellant beating the dog, whereupon the appellant started abusing the former and told him to keep quiet or else he too would be beaten like a dog. The exchange of hot words led to a scuffle between the deceased and the accused persons in the course whereof, while Accused 2 and 3 beat the deceased with fist and kicks, the appellant hit the deceased with the iron pipe on the head. It was SC no. 48/13 Page 45 of 58 46 held these circumstances should entitle the appellant to the benefit of Exception 4 to Section 300 IPC.
37.3 In Randhir Singh & Ors. Vs. State decided by Division Bench of Hon‟ble High Court on 12.07.2013 in Crl. Appeal no. 403/1997, on the issue of demand of some money a quarrel took place suddenly in which one accused picked up a brick lying nearby and hit the witness and then brought a danda from nearby. Meanwhile, other two accused also came armed with lathies and they hit the complainant with lathi on his head. One lathi blow was given on the head and one on the shoulder. During the incident, one of the accused also exhorted and shouted to kill the victim. Thereafter, the accused took out a knife and stabbed the victim on left side of his chest as a result of which injured fell down and the assailants fled from the spot. It was held by Hon‟ble High Court that the incident occurred at the spur of moment in a sudden fight without pre meditation and infact at the beginning of the fight, neither the deceased nor two of the accused were present. It was held by Hon‟ble High court that there was no previous enmity between the parties to carry out the assassination of the deceased and that other accused were not aware that one was carrying knife in his pocket. Mere exhortation on the part of the accused was held not to mean necessarily that he wanted the accused armed with knife to kill the deceased. In the facts & circumstances, the conviction of the accused was converted to U/s 304 part-I of IPC.
37.4 In Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348] SC held that if on a sudden quarrel a person in the SC no. 48/13 Page 46 of 58 47 heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. SC held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. It was held that;
".....The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner."
37.5 In Ghapoo Yadav v. State of M.P. [(2003) 3 SCC 528 : 2003 SCC (Cri) 765] Court held that in a heat of passion there must be no time for the passions to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC.
SC no. 48/13 Page 47 of 58 4837.6 In Sukhbir Singh v. State of Haryana [(2002) 3 SCC 327 : 2002 SCC (Cri) 616] the appellant caused two bhala-blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court, Supreme Court held:
"19. ... All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 to Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner."
37.7 In Randhir Singh & Ors versus State 2013 SCC OnLine Del 2570, accused Randhir shouted and exhorted his son Sudesh by saying "MAAR SALE KO, JAAN SE KHATAM KAR DE" and thereafter, accused Sudesh took out a knife from the right side of his pant and stabbed Ajit on the left side of his chest. It was held that the exhortation on the part of Randhir Singh would not necessarily mean that he wanted Sudesh Kumar to kill Ajit with the sharp edged weapon. It is an admitted fact that the accused Sudesh Kumar had lifted a brick so as to hit Subhash and SC no. 48/13 Page 48 of 58 49 thereafter he had gone to bring a danda from a nearby Ravi Tent House. It is also an admitted fact that the deceased had received one stab injury on the left side of his chest below the nipple with a sharp edged weapon. Exception 4 to Section 300 IPC was attracted instead of attracting Section 302 IPC.
37.8 In Pulicherla Nagaraju @ Nagaraja Reddy v.State of Andhra Pradesh, (2006) 11 SCC 444, the Court has observed that:
"18. ... the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, SC no. 48/13 Page 49 of 58 50 are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."
37.9 In Sunder Lal v. State of Rajasthan, 2007 (6) SCALE 649, the two accused armed with Gandasi and a lathi respectively had inflicted one blow on the head of the deceased with a Gandasi and SC no. 48/13 Page 50 of 58 51 a lathi respectively and several injuries on the hands and the legs with the Gandasi and the stick; the circumstances were that the intention to kill the deceased was found wanting and in the background of this fact, the Supreme Court took a view that the attack being at a spur of the moment and indiscriminate, constituted an offence of culpable homicide not amounting to murder punishable under Section 304 Part-I IPC.
37.10 Applying the ratio of the above mentioned judgments, the present case also is a case of offence of culpable homicide not amounting to murder punishable under Section 304.
37.11 A question still remains whether it is Part-I of Sec. 304 IPC which gets attracted or whether it is Part-II of Sec. 304 of IPC which will be attracted? Part-I of Sec. 304 of IPC provides punishment where the culpable homicide not amounting to murder is committed if the act by which death is caused is done with the intention of causing death, which in the present case is found lacking, or if the act by which the death is caused is done with an intention to cause such bodily injury as is likely to cause death. From the facts & circumstances, as discussed above, intention to cause death is lacking in the present matter. Intention is lacking for even causing such bodily injury as was likely to cause death. It appears from the circumstances that at the most the intention of the accused persons was to severely beat the complainant side in order to teach them a lesson for the repeated falling of water from the overhead water tank. Therefore, at the most, the accused can be SC no. 48/13 Page 51 of 58 52 imputed with the knowledge that with their act they were likely to cause death and therefore, it is Sec. 304-II of IPC which gets attracted in the present matter.
38 Having come to the conclusion that it is Sec. 304-II of IPC which gets attracted, the next question which arises is which accused is guilty for which offence.
38.1 Taking up the case of Premwati, Hemlata and Pintu, first of all, none of these accused were armed with any weapon. It is nobody‟s case that they exhorted Joginder to inflict the fatal blow on the deceased or they exhorted anybody else to commit any other offence at the time of incident. Against these three accused, the allegations are that initially accused Premwati and Hemlata were abusing the lady members of the family of complainant, and when Sher Singh called his sons with weapons, and the deceased was caught hold of by accused Veer Singh and Krishan and the complainant Prakash tried to save the deceased, these two ladies and Pintu caught hold of Prakash. There is no other allegation against these three accused. From these set of allegations, it cannot be inferred that accused Premwati, Hemlata or Pintu shared common intention to cause death of deceased. None of these three accused, therefore, can be held guilty U/s 304-II of IPC.
38.2 It has also come in the evidence of the witnesses that when the fight broke out between the two sides, accused Premwati and SC no. 48/13 Page 52 of 58 53 Hemlata grappled with the witnesses. In the testimony of PW12, the independent witness, it has specifically come that there was grappling and abusing from both the sides. Thereby meaning that even the complainant‟s family grappled with the family members of the accused including Premwati, Hemlata and Pintu. The said fact to some extent explains as to how Sher Singh and Premwati sustained simple injuries in the incident. Besides the allegations of grappling against accused Premwati and Hemlata, there is no other allegation in the evidence of any of the witnesses that these two accused Premwati and Hemlata gave beatings to anybody. There is no specific allegation in this regard against Premwati and Hemlata. There is no allegation that anybody was given beating even by Pintu.
38.3 PW2 Parmanand at one place alleged that accused Premwati, Hemlata and Pintu gave beatings to his wife as well as to his daughter Pista. But this part of testimony of PW2 is an improvement from his statement given to the police. Though PW2 Parmanand at one place deposed that Premwati, Hemlata and Pintu assaulted his wife and daughter also and that all the accused hit his daughter, but in his previous statement given by this witness to the police, there is no such allegation that Premwati, Hemlata and Pintu gave beatings to anybody. Similarly, statements of other witnesses also, given to the police, in this regard is lacking. This part of statement of Parmanand therefore, is clearly an improvement.
SC no. 48/13 Page 53 of 58 5438.4 Thus, in the given facts & circumstances, against Premwati, Hemlata and Pintu, there is no material at all besides the allegation that they did anything more than abusing, and holding the complainant Prakash. Against them, at the most charge of wrongful restraint could have been proved but no charge for the said offence was framed against them.
38.5 Turning to the case against Jogender, it is clear from the above discussion that it was this accused who brought the dagger from his house and inflicted the fatal blow on deceased. Armed with such a weapon, he gave blow to the deceased. Blow which he gave landed on the chest of the deceased. The injury sustained by the deceased as mentioned in the post mortem report was deep.
38.6 Accordingly, there is no hesitation in holding accused Jogender guilty U/s 304-II r/w Sec. 34 of IPC.
38.7 Turning to the case against Sher Singh, against him the case of prosecution is that he exhorted and called his sons not only to come to the spot but also to bring weapon and then on his exhortation, the deceased was killed. Qua the role of accused Sher Singh to this effect, the witnesses relevant are PW1 Prakash, PW12 Sunil and PW13 Pista, as the other two eye witnesses Parmanand and Dalip came out of their house after the deceased was assaulted.
38.8 PW1 Prakash in his examination in chief simply deposed that accused Sher Singh asked accused Jogender to bring the SC no. 48/13 Page 54 of 58 55 weapons. There is no deposition of this witness PW1 Prakash that after the weapons were brought, Sher Singh exhorted to kill anybody. Testimony of PW1 is absolutely silent as to the fact that Sher Singh exhorted to kill anybody. Instead PW1 stated that Sher Singh also caught hold of the deceased along with Veer Singh and Krishan. This part of testimony of PW1 that Sher Singh also caught hold of the deceased at the time when Jogender gave fatal blow is an improvement made by this witness from his statement given to the police. In his complaint Ex.PW1/A, there is no mention that Sher Singh caught hold of the deceased.
38.9 PW12 Sunil who is an independent witness deposed that Sher Singh called his sons upon which the sons of Sher Singh came armed and then Sher Singh exhorted "iska driver jyada vafadaar banta hai, sabsse pehle isko dekho". Thereafter deceased was assaulted. PW12 Sunil did not depose that Sher Singh exhorted or instigated to kill the deceased. At the most, as per the testimony of this witness Sher Singh asked his sons to see the deceased first.
38.10 PW13 Smt. Pista on the other hand deposed that Sher Singh deposed that "driver ko pakdo aur ussey khatam kar do". If the statement given by this witness to the police is perused, it would be revealed that Smt. Pista in her statement to the police, so far as exhortation by Sher Singh is concerned, simply stated that Sher Singh asked his sons to bring weapons to teach the complainants a lesson and once the weapons were brought, Sher Singh SC no. 48/13 Page 55 of 58 56 exhorted that the driver be seen first of all. Thus, the statement of Smt. Pista in the court that Sher Singh exhorted to kill the deceased is a clear improvement from her previous statement. Similarly, if the previous statement of Sunil Kumar is perused, even this witness stated to the police that Sher Singh exhorted that the driver be first seen. In the statement of PW1, on which FIR was registered, what is mentioned is that Sher Singh exhorted that complainant and deceased be caught hold of as they have been troubling them and they should be finished and also that first of all the deceased be seen as he was acting very loyal to the complainant.
38.11 In such circumstances, it is clear that it was accused Sher Singh who exhorted that weapons be brought and other sons be also called. It was thereafter when dagger was brought by Joginder Chauhan, Krishan and Veer Singh also came armed, accused Sher Singh exhorted to see the deceased driver first. Then the deceased driver was caught hold of by Veer Singh and Krishan and he was stabbed by Joginder. The act of accused Sher Singh in exhorting to call others, to bring weapons and to see the deceased clearly indicates his common intention. Accused Sher Singh is accordingly guilty U/s 304 -II r/w 34 of IPC.
38.12 Accused Sher Singh is also guilty U/s 323/34 IPC along with accused Krishan and Veer Singh for assaulting Parmanand, Dalip and Smt. Pista Devi.
SC no. 48/13 Page 56 of 58 5738.13 So far as accused Veer Singh and Krishan are concerned, it has come specifically in the evidence of witnesses that Sher Singh asked that the dagger be brought along with dandas. Thereafter, Jogender brought dagger and inflicted the fatal injury. Accused Veer Singh and Krishan not only caught hold of deceased when Jogender was giving fatal blow but they also gave beatings to Parmanand, Dalip and Smt. Pista. The very fact that these two accused caught hold of the deceased at the time when the deceased was given knife blow by accused Jogender, making the deceased immobile, reveals common intention of these two accused. These two accused Veer Singh and Krishan are therefore guilty U/s 304-II r/w 34 of IPC.
38.14 Accused Veer Singh and Krishan also injured Parmanand, Dalip and Smt. Pista Devi from their respective weapons, but the nature of injuries given to these injureds are simple in nature. Those injuries as described above would themselves reveal that they did not intend to either commit murder of Parmanand, Dalip or Smt. Pista Devi or even commit their culpable homicide not amounting to murder. At the most, they wanted to injure the witnesses, Parmanand, Dalip and Smt. Pista, therefore, accused Veer Singh and Krishan are also held guilty U/s 323 r/w 34 of IPC for injuring Parmanand, Dalip, Smt. Pista Devi and Ganga Devi.
38.15 The sum and substance of the above discussion is that accused Sher Singh, Jogender, Veer Singh and Krishan are found guilty and convicted U/s 304-II r/w 34 of IPC. Accused SC no. 48/13 Page 57 of 58 58 Sher Singh, Veer Singh and Krishan are also found guilty U/s 323/34 of IPC. All the accused are acquitted U/s 307/34 of IPC. Accused Premwati, Hemlata and Pintu are acquitted of all the charges.
Announced in the open court on 13th day of May, 2015. Dig Vinay Singh ASJ/Spl.Judge:NDPS(N-W) Rohini Courts/Delhi SC no. 48/13 Page 58 of 58