Delhi District Court
State vs Mahender, on 8 December, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0173702013 Digitally
Sessions Case No. 126/1/13 signed by
MANOJ MANOJ JAIN
Date:
FIR No. 104/2013 JAIN 2015.12.08
PS Kanjhawala 16:14:36
U/s 302/34 IPC +0530
State Versus Mahender,
Son of Sh. Bal Kishan,
Resident of M-201, J.J. Colony,
Sawda, Delhi.
Date of institution in Sessions Court: 17.07.2013
Date of conclusion of arguments : 02.12.2015
Date of pronouncement of judgment: 07.12.2015
Memo of Appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State.
Sh. Gautam Kumar Jaina, learned defence counsel for accused.
JUDGMENT
1 Accused Mahender has been sent up to face trial by PS Kanjhawala for commission of offence under Section 302/34 IPC. Right here, I would also like to hasten to add that as per prosecution, there were two other partners-in-crime as well. However, such other two offenders were found juveniles in conflict with law and, therefore, they were sent to Juvenile Justice Board for decision in accordance with law.
2 Incident is of 12.04.2013. Complainant Rohit (PW11) was present with his friends near Mata Ki Chowki opposite his block situated in Sawda, Delhi. One Sumit (victim) was also present in the street. All the three accused persons, including accused Mahender herein, came there. Rohit knew all of them as they FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 1 all were residents of M-Block. They all started beating Sumit with slaps and fists and Raja (juvenile offender) banged his head against the forehead of Sumit due to which Sumit fell down. All the three offenders gave further beatings to such fallen Sumit. In the meanwhile, Mithun (PW12) came there and slapped all the accused and made them run from there. Rohit, however, chased them and was even able to apprehend Raja but his two said co-accused were able to get him freed from his clutches. Sumit was immediately taken to a nearby clinic of Dr. Sanju but Sumit did not regain consciousness. Rohit then immediately informed the police. In the meanwhile, Sh. Rajbir (PW7) (father of Sumit) also reached said clinic and Sumit was rushed to SGM Hospital where he was declared brought dead.
3 FIR was accordingly registered on the basis of statement given by complainant Rohit.
4 Crime scene was got inspected and photographed and statements of various other eyewitnesses were also recorded.
5 Investigation also revealed the motive behind the incident in question. It emerged that students of Class-IX of Government Sarvodaya Vidhalaya, B- Block, Sawda had made a complaint to their class-teacher i.e. Ms. Roopali (PW5) regarding trespassing of other students of their school during school hours. Anuj (PW17) happened to be the brother of deceased Sumit and he was one such complainant. Mahesh (juvenile offender) was also student of said school and he was in Class-VII and he was alleged to be one such trespassers. There was an altercation between Anuj (brother of deceased) and Mahesh outside the school and Mahesh had threatened Anuj as well as his brother Sumit with dire consequences.
6 During investigation, all the three accused persons were arrested. Since Raj Kumar @ Raja and Mahesh were found juveniles in conflict with law, appropriate documents qua them were prepared and they were accordingly produced before Juvenile Justice Board.
FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 2 7 As per postmortem report, cause of death was due to shock associated with head injury.
8 Such charge-sheet was laid before the concerned Magisterial Court on 22.06.2013.
9 Case was ordered to be committed to the Court of Sessions vide order dated 10.07.2013.
10 Case was received on allocation by this Court on 17.07.2013.
11 Accused was ordered to be charged under Section 302/34 IPC as well as under Section 225/34 IPC. Charges were accordingly framed on 10.10.2013 to which accused pleaded not guilty and claimed trial.
12 Prosecution was directed to adduce evidence and has examined eighteen witnesses. These can be classified as under:-
Public witnesses/eyewitness
(i) PW5 Ms. Roopali (school teacher).
(ii) PW7 Sh. Rajbir Singh (father of deceased).
(iii) PW8 Sonu (neighbour of deceased).
(iv) PW10 Sh. Digantu Rai (in whose clinic deceased was first brought for medical attention).
(v) PW11 Rohit (eyewitness/complainant).
(vi) PW12 Mithun (eyewitness).
(vii) PW13 Ajay (eyewitness).
(viii) PW14 Vijay (eyewitness).
(ix) PW15 Mukesh (eyewitness).
(x) PW17 Anuj (brother of deceased Sumit).
Police officials/doctors
(i) PW1 SI Ashwani Kumar (duty officer).
(ii) PW2 ASI Ram Kumar (Incharge Crime Team).
(iii) PW3 Ct. Ravinder (photographer Crime Team).
(iv) PW4 HC Anoop Singh (MHCM).
(v) PW6 Ct. Sanjeev (CIPA Operator).
(vi) PW9 Ct. Anil (police official who participated in investigation).
(vii) PW16 W/Ct. Renu (PCR Official).
(viii) PW18 Dr. Manoj Dhingra (autopsy surgeon).
13 Accused, in his statement under Section 313 Cr.P.C., pleaded innocence. He, however, did admit that he was present at the spot at the relevant FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 3 time and he had also seen quarrel taking place but supplemented that he had merely intervened in good faith as a good gesture and did not know anything about those persons involved in the fight. He, however, did not lead any evidence in defence.
14 I have heard learned Addl. P.P. and learned defence counsel and carefully gone through the material available on record.
15 Learned Addl. P.P. has contended that one juvenile offender Mahesh has already been held guilty by Juvenile Justice Board-II whereas other juvenile offender Raja had also pleaded guilty there. He has also argued that during trial of said case before the Board, complainant Rohit had made deposition in which he had also come up with clear-cut allegations against accused Mahender as well. Learned Addl. P.P does admit that Rohit did not support the case of prosecution in the instant trial but at the same time, according to him, it becomes evident that he has mixed up with the accused and has been won over by him and, therefore, he has palpably tried to save him by making a false deposition before the Court. He has, therefore, prayed that Rohit should be hauled up for perjury. He has also stated that there is no reason to disbelieve the deposition which Rohit had made before Juvenile Justice Board in which the specific role of accused Mahender is appearing. Additionally, he has argued that other two material eyewitnesses i.e. PW13 Ajay and PW14 Vijay have fully supported the case of prosecution and it becomes very much perceptible that Sumit had been murdered by all the three accused in furtherance of their common intention.
16 As regards motive, Sh. Jindal has contended that such motive has also been appropriately proved by the prosecution. In this regard, he has drawn my attention towards the testimony of PW5 Ms. Roopali, School Teacher, PW7 Rajbir (father of deceased) and PW17 Anuj (brother of deceased Sumit).
17 Sh. Gautam Kumar Jaina has, on the other hand, refuted all the aforesaid contentions. He has contended that complainant Rohit has not uttered even a single word against accused Mahender and prosecution is not justified in placing reliance upon his version which he made before the Juvenile Justice FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 4 Board. He has also argued that even otherwise, accused Mahender was not party to above proceedings and he never got any opportunity to confront Rohit with respect to such version and, therefore, such statement of Rohit, given before Juvenile Justice Board, cannot be given any precedence over the deposition made before this Court. He has also argued that even the other two eyewitnesses i.e. PW13 Ajay and PW14 Vijay have not spoken anything specific against accused Mahender. He had also drawn my attention towards the hostile testimony of another eyewitness i.e. PW12 Mithun. He has also simultaneously asserted that even the motive is highly unclear and has not been presented in the desired manner by the prosecution. Moreover, even the school-teacher Roopali has not spoken about such motive as she has not supported the case of prosecution.
18 I have carefully perused the entire material available on record and given my thoughtful consideration to the rival contentions.
19 If prosecution case is to be believed then there are five public witnesses who had seen the incident with their own eyes. They are PW11 Rohit, PW12 Mithun, PW13 Ajay, PW14 Vijay and PW15 Mukesh. Let me straightway see what they have to offer in the witness box.
20 PW11 Rohit has deposed that on 12.04.2013, he had returned from his job and was standing near Mata Ki Chowki at about 9.30 PM. He heard noise and reached the gali where he saw Sumit son of Rajbir lying in the gali in injured condition. He also deposed that he came to know that Raja and Mahesh had run away after beating Sumit. He chased both of them and caught hold of Raja on which Mahesh told that it was a dispute between them and, therefore, he should not come in their way and during such scuffle, Raja also got himself freed from his clutches and fled away. He then came back to the spot and lifted Sumit and removed him to a doctor. Sumit was unconscious and doctor asked him to take him to a private hospital. Rohit informed the father of Sumit who came there and Sumit was taken to Sonia Hospital and from there to SGM Hospital where he was declared brought dead.
FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 5 21 PW11 Rohit further deposed that from the hospital, he returned to the spot where police officials met him and recorded his statement Ex. PW11/A. He also deposed that police had inquired from him about the manner of incident. As regards Mahender, he though claimed that he knew him but he also added that he did not know anything further about the case. Naturally, since he did not come up with any incriminating word either about the presence of accused Mahender at the spot or his participation, prosecution sought permission to cross-examine him. Such permission was granted and then learned Prosecutor grilled him with respect to all those material aspects on which he had deviated from his original stance. In his such cross-examination, he claimed that it was correct that whatever he had stated to the police was recorded by the IO in his statement Ex. PW11/A. However, he volunteered that IO had written some extra facts which he had not told to him. When asked about those facts, he could not give any answer. He claimed that he had not gone through his such previous statement, therefore, he could not tell as to what were those extra facts. He, however, admitted that he did not refuse to sign such statement and he did not make any complaint to SHO or any higher officer against IO about recording of such extra facts. He also claimed that he could not point out what were those extra facts. He also claimed that he had signed Ex. PW11/A after going through the same. Learned Prosecutor then grilled him with respect to the minute details regarding incident but he remained adamant and claimed that it was wrong to suggest that all three accused persons including accused Mahender had beaten up Sumit. He also denied that Mithun had come at the spot and separated them from Sumit. He, however, did admit that he was able to catch hold of Raja at the spot but at the same time he also categorically denied that Raja was got freed by accused Mahesh and Mahender.
22 Since PW11 Rohit had also earlier deposed before the Juvenile Justice Board where matter related to juvenile offender Mahesh was pending adjudication, learned Prosecutor asked him about the same. PW11 Rohit came up with a surprising answer and deposed that his version was not recorded properly by the Juvenile Justice Board. He claimed that he had made a complaint in this regard to the concerned Presiding Officer of the Board but a quarrel took place with that advocate who was getting his statement recorded and since, he FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 6 was asked to sign, he had to sign. In his cross-examination conducted by the defence, he claimed that it was correct that incident was not visible from the place where he was standing.
23 It will be important to mention here that record pertaining to such trial, which was pending before Juvenile Justice Board-II, was also called and it was noticed that PW11 Rohit had made a deposition before that Court in which he admittedly claimed that all the three accused persons, including accused Mahender, had beaten up Sumit.
24 It is thus quite evident and apparent that as far as PW11 Rohit is concerned, he is blowing hot and cold. He has complaints against everyone. He says that police did not record his statement properly. He also states that even Board did not record his statement correctly. Surprisingly despite that he did not lodge any protest anywhere. He also admits that whatever he had stated to the police was recorded by the police. He also admitted his such statement Ex. PW11/A. He vaguely claimed that police had recorded certain extra facts of his own but when asked to point out any such extra facts, he miserably failed to point out such extra facts. In such a situation, I find myself unable to hold that his statement was not recorded properly either by the concerned police official or by the learned Board.
25 Naturally, had PW11 Rohit been the solitary eyewitness, things might have been little bit difficult and tricky for the prosecution but to the good fortune of prosecution, there are other material public witnesses who had seen the incident in question.
26 Again, to the dismay of State, PW12 Mithun and PW15 Mukesh have also not supported the case of prosecution at all. PW12 Mithun is completely hostile. He has deposed that he had seen that some persons were quarreling with one person but he did not know those persons before hand and he pushed them and tried to rescue one person who had fallen unconscious and he had sent him to a nearby doctor with the help of some public persons. He also maintained there that it was dark and he could not see the incident and that he was not in a FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 7 position to identify those persons.
27 Let me now come to the testimony of remaining two eyewitnesses i.e. PW13 Ajay and PW14 Vijay.
28 PW13 Ajay has deposed that on 12.04.2013 he was present at the shop of Sanjay at N-Block, Sawda, Delhi. It was 9.30 PM and he was purchasing parchoon (grocery) articles from the shop and Vijay, his friend, was also with him. He deposed that some quarrel was taking place in front of shop and it was between Raja and one other person who had died in that incident. He also claimed that accused Mahender was standing near the shop and they both i.e. Ajay and Vijay came outside the shop for rescuing such person i.e. Anmol, Mahender pushed Vijay and also caught hold of Ajay. In the meanwhile, Mithun came there and he gave slaps to Mahender and Raja. Thereafter, all three accused went from there. He deposed that then Rohit had come and took Anmol to hospital. I would like to add here that Sumit has alias name as Anmol. Since PW13 Ajay was not fully supporting the case of prosecution, he was cross- examined and in such cross-examination, he corroborated the case of prosecution and claimed that when he reached at the corner of N-Block, Raja , Mahesh and Mahender came there from opposite side and started beating Sumit. He also deposed that all the three persons had beaten Sumit with legs, fit and also with head. He also claimed that when Sumit had fallen on the ground, Raja and Mahesh had caused further injuries to Sumit. In his cross-examination conducted by defence, he simply claimed that he was at a distance of around 12- 15 feet from the place of occurrence. He also claimed that he had seen the incident with his own eyes. He claimed that he had remained at the spot for about five minutes. No other question or suggestion was put to him and defence could not dislodge and impeach the credibility of this witness in the desired manner and the facts, which have surfaced in his cross-examination conducted by the prosecution, remain steady and stable, virtually.
29 Similarly, PW14 Vijay has deposed that some quarrel was going on between Raja and Mahesh on one side and Sumit on the other and Raja and Mahesh were beating up Sumit and he went towards them in order to intervene, FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 8 accused Mahender stopped him and gave blows to him. He also deposed that he was able to save himself from Mahender and then he went towards Sumit and separated Raja and Mahesh who were beating up Sumit. He also deposed that in the meanwhile, Mithun came there and gave beatings to Raja and Mahesh and Mahender then fled away from there. Since his version was not in total consonance with the case of prosecution, he too was grilled by the prosecution and in such cross-examination, he clearly claimed that all the three accused persons had beaten up Sumit. I have seen cross-examination of PW14 Vijay as conducted by defence I have not been able to come across anything which may compel me to discard the version of PW14 Vijay.
30 Undoubtedly, even PW13 Ajay and PW14 Vijay have deviated in examination-in-chief but fact remains that made amends when they were confronted by State. It is settled position of law that hostile witness is not necessarily a false witness and merely a witness has been declared so does not eradicate his evidence altogether. Evidence of a witness turning hostile cannot, as a matter of fact, be treated as effaced or washed off the record altogether. Court has to consider whether as a result of such major shift in deposition and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the court finds that in the process, the credit of the witness has not been completely shaken, it may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which it finds to be creditworthy to act upon. However, needless to emphasis that court is required to be extremely cautious and circumspect in acceptance of testimony of such witness.
31 I also cannot be unmindful of the fact that as far as accused Mahender is concerned, in his statement under Section 313 Cr.P.C. he himself admitted his presence at the spot. He rather claimed that he had intervened in a bonafide manner as a goodwill gesture and that he had been falsely implicated. However, no suggestion to that effect was put by defence to the concerned prosecution witnesses and his such version has come up at very belated stage and, therefore, cannot be accepted. He has also not examined anyone in order FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 9 to prove his such stance and defence.
32 Thus, from the testimony of PW13 Ajay and PW14 Vijay in particular, it can be safely inferred that all the three accused had beaten up Sumit. Even if I, for a moment, hold their version, as appearing in examination-in-chief, to be true, even in such scenario, it becomes very much apparent that he was acting in furtherance of common intention of all the accused. As per the case set up by the prosecution, the fatal blow had been given by accused Raja and even as per the said two material witnesses i.e. PW13 Ajay and PW14 Vijay when they intervened, accused Mahender stopped them. Naturally, such act of stopping on the part of Mahender was to ensure that his co-accused were able to achieve their objective. Viewed from any angle, accused Mahender seems to be acting in league with those two juvenile offenders.
33 Let me now evaluate the motive aspect also.
34 In this regard, reference is required to be made to the testimony of PW5 Roopali, PW7 Rajbir and PW17 Anuj.
35 PW17 Anuj is younger brother of deceased Sumit and he has deposed that in the year 2013, he was studying in 9 th Class at Sarvodaya School, B-Block, Sawda and he had made a complaint to his class-teacher that one student of 7th Class, namely, Mahesh (juvenile offender) used to come to his class and used to beat him. He deposed that his brother i.e. deceased Sumit was informed and after lunch hours, Sumit came at the school and at that time also Mahesh was quarreling with him (Anuj) and was beating him up. On this, Sumit had even pushed Mahesh for separating both of them and then Mahesh had threatened to see both of them. PW7 Anuj then revealed such fact to his parents and his parents told him that they would go to the house of Mahesh to make him understand and to resolve the matter. He also deposed that Mahesh rather did not allow them to enter inside his house and Mahesh was aggrieved therefore.
36 PW7 Rajbir Singh has deposed that on 05.04.2013, his son had been beaten up by Mahesh in the school. He also deposed that Mahesh was also FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 10 studying in the same school. He also divulged that his son Anuj had made a complaint to the class-teacher but on the next day, Mahesh had again beaten up his son in this regard. He also deposed that on 09.04.2013, he did not send his son to school and in the evening, he had gone to the house of accused Mahesh who felt sorry and assured that he would not repeat such acts in future. He also deposed that class-teacher of Anuj had also asked him as to who were those students who used to bunk the class and, then Anuj revealed the name of Mahesh and due to said reason, Mahesh had quarreled with Sumit and Anuj.
37 Of course, there is not complete harmony between the testimony of PW7 Rajbir Singh and PW17 Anuj as according to PW7 Rajbir Singh, they were able to meet Mahesh at their house and even Mahesh had felt sorry whereas as per PW17 Anuj, Mahesh did not even let them inside their house. Be that as it may, fact remains that from the testimony of both the aforesaid witnesses, it becomes clear that juvenile offender Mahesh and Anuj (younger brother of deceased) were studying in the same school and Anuj made a complaint against Mahesh to his class-teacher.
38 Such class-teacher i.e. PW5 Roopali has also entered into witness box. She did mention about the fact that a complaint was made by some of her students but she did not know the names of those students. She, however, claimed that she was later on told by the father of Anuj that his elder son had died and he also told that a quarrel had taken place between Mahesh and Anuj as Anuj had made a complaint to class-teacher against Mahesh. However, PW5 Roopali denied having received any such complaint. She was cross-examined by the prosecution with the permission of the Court but she remained adamant to her such stand. She, however, did admit that Mahesh was also studying in the same school. She also admitted that one such student was produced before her and that student was warned by her and thereafter one more student was also warned by her. Undoubtedly, prosecution cannot dig out much advantage from testimony of PW5 Roopali but that does not mean that motive part does not stand proved to the hilt. I have no reason whatsoever to distrust the version of PW17 Anuj and his father PW7 Rajbir. I also need not remind myself that motive is though an important facet of any criminal trial yet absence of proving the same would not FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 11 ipso facto mean that accused is entitled to acquittal straightway.
39 Let me now come to other investigational aspects.
40 PW16 W/Ct. Renu had received information on 12.04.2013 at about 10.04 PM and the caller of mobile number 8586091793 had informed her that 4-5 boys had severely beaten up one boy at Sawda, J.J. Colony, O-Block, 783 Near Sanju Doctor and that boy was lying there. She forwarded the message to the concerned PCR. PCR form has been proved by her as Ex. PW16/A. FIR had been recorded by SI Ashwani Kumar. He also recorded DD No. 35A and DD No. 38A and all such entries and FIR have also been duly proved by him.
41 PW9 Ct. Anil Kumar was on emergency duty and on receipt of DD No. 38A, he along with SI Paramjeet had reached SGM Hospital and learnt that body of deceased had been removed to mortuary. Father of Sumit, namely, Rajbir Singh and eyewitness Rohit were also met at the hospital and Insp. Tarif Singh recorded statement of Rohit and prepared rukka and handed over the same to him. He along with rukka went to PS for registration of FIR. After getting the FIR registered, he reached at the spot i.e. street N-Block, Sawda, J.J. Colony where Insp. Tarif Singh was present with Crime Team. Crime Team inspected the spot and took photographs of the scene of occurrence and thereafter they all left in search of accused and on the basis of secret information, all the three accused persons were apprehended. He has also deposed about inquest proceedings. There is nothing in his cross-examination which may create any qualm about the correctness of the case of prosecution.
42 PW2 ASI Ram Kumar was posted as Incharge Crime Team, Outer District at the relevant time and he had inspected the spot at the instance of IO/ Insp. Tarif Singh and he has also deposed that Ct. Ravinder had taken the photographs of the scene of crime. Crime Team report has been proved as Ex. PW2/A and photographs taken by Ct. Ravinder have also been duly proved and the testimony of these two witnesses is unrebutted.
FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 12 43 Undoubtedly, IO-Insp. Tarif Singh did not enter into witness box. Merely because IO did not enter into witness box, it cannot be robotically inferred that prosecution case does not stand proved. Moreover, defence has failed miserably to illustrate and explain as to what demonstrable has been caused to them emanating from such non-examination of investigating officer?
44 Let me now come to the other crucial aspect of the case i.e. nature of injuries.
45 When injured was brought to SGM Hospital, he was declared brought dead. Autopsy on his body was conducted by Dr. Manoj Dhingra and Dr. Vivek Rawat and Dr. Manoj Dhingra has entered into witness box and has proved autopsy report as Ex. PW18/A. 46 On external examination, only two injuries were noticed. These are as under:-
(i) Bruise reddish colored 5x4 cm just above the lateral end of right eyebrow.
(ii) Abrasion 3x2 cm reddish colored just below lateral canthus of right eye.
47 On internal examination, following injuries were found:-
(i) Extravasation of blood seen in right fronto parietal scalp area.
(ii) No fracture seen to skull bones.
(iii) Brain was severely congested & edematous. Diffuse subdural and subarachnoid hemorrhage seen to right fronto-parieto-
temporal lobes.
48 According to PW18 Dr. Manoj Dhingra, cause of death was due to shock associated with head injury under injured number 1 & 2 which were fresh and antemortem at the time of death and all the injuries were caused by blunt force impact.
49 Ocular evidence should match with the medical evidence as a general principle. I was forced to see the statement which Rohit had given before the police which resulted in registration of FIR and in such statement, he claimed that FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 13 Sumit had been apprehended by all the three accused who started beating him with fists and slaps and then Raja banged his head on the forehead of Sumit.
50 This head-butt blow, precisely, seems to be the fatal one. I cannot be unmindful and oblivious of the fact that accused persons had not come with any actual preparation. They all were unarmed. It was a brawl and during such scuffle, one other co-accused i.e. juvenile offender Raja banged his head against the forehead of Sumit and due to such blow, Sumit fell down and died. As per PW18 Dr. Manoj Dhingra, death could also be possible due to fall on hard surface.
51 In such peculiar backdrop, it is required to be assessed whether accused had beaten up with any intention and knowledge to kill Sumit or not. In other words, it is to be deciphered whether it is a case of culpable homicide amounting to murder or culpable homicide simpliciter or otherwise.
Sec 299 IPC defines Culpable homicide as under:-
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Sec 300IPC defines murder as under:-
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly,- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
52 In the scheme of the Indian Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murders' are 'culpable homicide' but not vice- versa.
FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 14 Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section304.
53 In Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444, Apex Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused observing as under:-
"...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of 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, 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 FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 15 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..."
54 In Jagrup Singh v. State of Haryana (1981) 3 SCC 616, the accused had given a fatal blow on the head of the victim during a sudden fight causing fracture to the skull. Supreme Court altered the conviction from Section 302 to Section 304, Part II IPC. Reference may also be made to Sarabjeet Singh and Ors. v. State of Uttar Pradesh (1984) 1 SCC 673, Mer Dhana Sida v. State of Gujarat (1985) 1 SCC 200, Sukhmandar Singh v. State of Punjab AIR 1995 SC 583 and Chamru Budhwa v. State of Madhya Pradesh AIR 1954 SC 652 in which cases also, finally, the conviction was altered from Section 302 IPC to Section 304, Part II of IPC. Thus, question whether a case falls under Section 302 or 304 has to be decided from case to case depending on factors like the circumstances in which the incident takes place, the nature of weapon used, if any and whether weapon was carried or was taken from the spot and whether the assault was aimed on vital part of the body; the amount of force used; whether the deceased participated in the sudden fight; whether there was any previous enmity; whether there was any sudden provocation; whether the attack was in the heat of passion; whether the person inflicting the injury took any undue advantage or acted in a cruel or unusual manner. The list of circumstances is not exhaustive and there may be several other circumstances with reference to individual cases.
55 There is no doubt that present is a case of culpable homicide. Death of Sumit is homicidal. However, it needs to be firmly evaluated whether the death has been caused with the intention and /or with knowledge that death was the only outcome.
56 I would hasten to supplement that degree of certainty of death, on most of the occasions, divides the specie from the genus. The difference between culpable homicide and murder is very subtle. Both the offences include the FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 16 elements of knowledge and intention. The main distinction depends upon the degree of risk to human life by the act. If death is a likely result of the act of offender, it is culpable homicide; if death is a sure result of the act of offender, it is murder.
57 In view of my foregoing discussion and keeping in mind the fine distinction between the act of culpable homicide simpliciter and culpable homicide amounting to murder and appreciating the testimony of prosecution witnesses in whole, I am persuaded to hold that the present case falls under Section 304 (Part-II) IPC instead of Section 302 IPC.
58 Accused is also charged for commission of offence under Section 225 IPC. It stands attracted when there is any resistance or obstruction to lawful apprehension of any person. As per charge-sheet, when juvenile offender Raja was apprehended by complainant Rohit, other two accused got him released. Such fact has not been proved by the prosecution in the desired manner. As per the testimony of PW11 Rohit, Raja, all by himself, was able to secure his release from his clutches. PW12 Mithun has not stated anything in this regard. I have seen the testimony of other spot witnesses also and it becomes very much evident that such fact has not been substantiated by the prosecution at all.
59 Accordingly, accused Mahender is hereby held guilty for committing offence under Section 304 (Part-II) IPC read with section 34 IPC.
60 Before parting, I would, however, like to mention that instances of hostility are becoming frequent day by day. Here PW11 Rohit had testified before the Juvenile Justice Board-II and in his such testimony, he had raised accusing finger towards accused Mahender also. His such testimony was recorded by the Board on 30.07.2013 but his testimony recorded during the instant trial is altogether different and has rather completely exonerated him and, therefore, he has manifestly come up with incongruous versions on oath.
FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 17 61 Keeping in mind the facts and circumstances of the present case, I am of the considered view that it would be absolutely obligatory for this Court to take recourse to Section 340 Cr.P.C. and, therefore, a notice be issued to PW11 Rohit to show cause as to why action be not taken against him in terms of provisions of Section 340 Cr.P.C. Separate file to that effect be opened up.
62 Accused Mahender be heard on sentence.
Announced in the open Court (MANOJ JAIN)
On this 7th day of December 2015 Addl. Sessions Judge (FTC)
North-West District: Rohini: Delhi
FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 18
FIR No. 104/2013
PS Kanjhawala
State Vs. Mahender
Tuesday, December 08 2015
Present: Sh. Sanjay Jindal, learned Addl. P.P. for State.
Convict Mahender in JC with counsel Sh. Gautam Kumar Jaina.
1 Heard arguments on sentence.
2 Learned Addl. P.P. has prayed for maximum dosage of sentence as prescribed under Section 304 (Part-II) IPC whereas Sh. Jaina has prayed for maximum leniency.
3 Sh. Jaina has contended that convict was barely 19 years of age at the time of incident. He has no criminal antecedents. He has contended that convict is in custody since 13.04.2013 and he has, therefore, undergone sufficient period behind the bars already and it is a fit case where convict Mahender should be released on the undergone period only.
4 I have given my thoughtful consideration to the said contentions. I cannot be unmindful of the that other two juveniles in conflict with law have were also reportedly held guilty. The genesis of the quarrel was one complaint made against one juvenile accused. I have already noticed autopsy report and it is evident that one head blow proved to be fatal one. Such blow was given by juvenile offender.
5 While deciding the quantum of sentence, it is always important to consider overt act and level of participation of any such convict. Though all the three accused persons were acting in league and the criminal act was done in furtherance of common intention yet it becomes very much apparent that the role of Mahender was comparatively lesser vis-a-vis his co-accused/juvenile offender Raja. His previous clean antecedents and in particular his young age also compel me to take a lenient view.
6 Keeping in mind the overall facts and circumstances of the case, I hereby sentence convict Mahender to undergo simple imprisonment for a period FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 19 of three years.
7 Needless to say that convict would be entitled to benefit of Section 428 Cr.P.C. and the period already undergone by him would be liable to be set off. I am told that family of convict is living in penury. His father is a casual labourer and, therefore, according to Sh. Jaina, family of the convict would not be in any position to deposit any fine or compensation. I, therefore, do not impose any further monetary sentence.
8 Convict be sent to jail under appropriate warrants.
9 A copy of judgment and order on sentence be given to convict free of cost.
10 This court feels that parents of deceased Sumit are entitled for compensation u/s 357-A Cr.P.C. and the matter is accordingly recommended and referred to District Legal Services Authority, North West, New Delhi for deciding the quantum of compensation.
11 Copy of this order be sent to Ld. Secretary, District Legal Services Authority, North West, New Delhi.
12 Main file be consigned to Record Room and a separate file be opened up for the purposes of inquiry initiated against PW11 Rohit under Section 340 Cr.P.C.
(MANOJ JAIN) ASJ (FTC): N-W Distt: Rohini: Delhi 08.12.2015 FIR No. 104/2013 PS Kanjhawala (State Vs. Mahender) Page 20