Indian Kanoon - Search engine for Indian Law

Delhi District Court

The Case Of The Prosecution In Brief Is ... vs . on 31 March, 2012

     IN THE COURT OF SH. RAKESH TEWARI  ASJ­VI(OUTER), 
                   ROHINI COURTS, DELHI

SC NO.10/11
FIR NO. 820/06
U/S 302/34 IPC
PS Narela
Unique Case ID No. : 02404R0241382009

               State 

               Vs. 

     1. Chander Mohan @ Mannu s/o Chhotey Lal

       r/o 69, Village Lampur, Narela, Delhi.

     2. Anand @ Anney s/o Chhotey Lal

       r/o 69, Village Lampur, Narela, Delhi.

     3. Azad Singh s/o Chhotey Lal

       r/o 69, Village Lampur, Narela, Delhi.



Date when committed to the court of Sessions :09.04.2007
Date when case reserved for judgment        : 21.03.2012
Judgment pronounced on                        : 31.03.2012

JUDGMENT:

1. The case of the prosecution in brief is that on 17.12.2006, an information was received from PCR that at the tube well in Village Lampur, one boy after killing, had been buried and the said SC No.10/11 Page 1/80 information was recorded in DD No.14A dated 17.12.2006, PS Narela, which was handed over SI Mahender Singh for necessary action who along with Ct. Sunil Kumar reached the spot and Inspr. Ram Kishan Singh, after coming to know of the said call, also accompanied them to the spot and the spot was an agricultural field for roses and in the middle of the field, one Ankit s/o Pradeep Kumar, r/o H.No.55, Village Lampur, was lying dead, whose dead body was covered by the Peepal leaves and branches and by the side of the dead body, one pair of chappal was also lying and on the inspection of the dead body, at the right cheek, right wrist and left hand fingers, there were scratch marks, abrasion and signs of burning visible and at the spot one Surender Kumar was present who got recorded his statement.

2. As per statement of said Surender Kumar, he was also residing at the said village and was an agriculturist and that on 17.12.2006, at about 7 a.m, his nephew Ankit, the deceased, had come to his field behind the beggar home for irrigating the same and that he (the complainant) also came to his field which was near the field of the said deceased Ankit, on his scooter at about 8.20 a.m and when he reached near the garden of Raj Kumar, he saw that sons of one Chottey Lal namely Anand @ Anney, Azad, Chander Mohan @ Mannu, who were having their field of roses adjoining to the field of the deceased, on the divider of their field, were abusing deceased SC No.10/11 Page 2/80 Ankit and were scuffling with him and thereafter all the said three persons threw the deceased on the wire unauthorizedly charged with electric current by them, which was fixed around their field, due to which said deceased cried loudly and thereafter the said three wanted to pounce upon him also and were saying to teach him also a lesson due to which, out of fear, he went back to the road and called his cousin brother Vijay on phone on which Vijay s/o Ram Kumar and Sanjay s/o Baljeet Singh came there immediately in a vehicle and when they three reached near the said field of roses of Chottey Lal, the said three sons of Chottey Lal namely Anand, Azad and Chander Mohan had kept the dead body of the deceased in the middle of the field, after covering the same with dry Peepal leaves and branches and chappals of the deceased were kept by his side and looking at them, they (the accused persons) started rushing away from there but they (the complainant side) chased them and overpowered Anand @ Anney and remaining two namely Chander Mohan and Azad became successful in escaping and thereafter many villagers gathered there, who started beating the said Anand and said family of Chottey Lal was having a long standing enmity over the issue of divider of the field, due to which said three sons of Chottey Lal murdered the said deceased Ankit and on the basis of said statement, a rukka was prepared and FIR was got registered after sending Ct. Sunil to the PS for the said purpose and the investigation SC No.10/11 Page 3/80 was entrusted to Inspr. Ram Kishan Singh.

3. During investigation, the IO prepared the rough site plan, collected the crime team report, seized the said chappal of the deceased and the said branches of Peepal tree were also seized and NDPL staff (the electric company) was summoned at the spot which came at the spot and inspected the spot and one thin wire of iron, after tying the same with the wooden branches embedded in the earth, was fixed around the field and was charged with electric current and those wooden branches were also seized and accused Anand was arrested. Thereafter the autopsy on the dead body of the deceased was got conducted and clothes of the deceased were seized given by the autopsy surgeon and on 21.12.2006, accused Chander Mohan, at the identification of the complainant, was got arrested, the revenue record pertaining to the said field was seized and concerned AE of the electric company namely NDPL gave his report which was seized and as per revenue record, it transpired that field where the incident took place is situated in Khasra No.40/9 and Chottey Lal along with his brothers was the owner of the same and thereafter PME report was obtained, as per which cause of death was shock due to electrocution and thereafter scaled site plan was got prepared and charge sheet was filed against accused Anand @ Anney and Chander Mohan. Subsequently, a supplementary charge sheet was filed against accused Azad also on 22.03.2007, who had surrendered SC No.10/11 Page 4/80 before the court and father of the deceased namely Pradeep also produced revenue record of the year 2003­2004 regarding the field wherein Khasra number was mentioned as 40/2 and the field in question came to his share after partition in which the deceased Ankit had gone for irrigation on 17.12.2006, as per the said supplementary charge sheet.

4. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 17.01.2008, framed charge against all the accused u/s 302/201/34 IPC which was amended on 15.12.2008 by my Ld. Predecessor as no offence u/s 201/34 IPC was found by him from the record and accused were charged for the offence u/s 302/34 IPC, to which they pleaded not guilty and claimed trial.

5. The prosecution, in order to prove its case, has produced as many as 27 witnesses, relevant of which have been discussed below.

6. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and as the defence witness namely Daya Nand @ Pappu was not traceable at the address given, as per report on the summons, said circumstance shall be read in defence of the accused, as mentioned in the order dated 14.12.2011. SC No.10/11 Page 5/80

7. I have heard Ld. APP for the state, Sh. Pawan Kumar Mittal and Sh. Vipin Kumar, Ld. Counsels for the complainant, Sh. Pradeep Rana, Advocate for the accused and perused the record.

8. The formal witnesses are PW5 Ct. Dalbir who took photographs of the scene of occurrence which are Ex.PW5/A1 to A25 and negatives thereof are Ex.PW5/B1 to B25. PW7 SI Manohar Lal was the draughtsman who prepared the scaled site plan Ex.PW7/A. PW8 HC Rajbir Singh was the PCR official on 17.12.2006, who received a call at about 9.10 a.m from mobile phone number 9899740081 from one Pradeep Saini and the information was regarding the quarrel and he filled the PCR form Ex.PW8/A. PW9 HC Champa Topo, who was the duty officer on 17.12.2006, proved the DD No.43B as Ex.PW9/A and in his cross examination, he denied the suggestion that the DD entry was fabricated subsequently as the FIR was ante timed. PW10 HC Sudhir Kumar, who was the duty officer, proved the FIR as Ex.PW10/A and copy of the DD No.17A as Ex.PW10/B and he also made his endorsement on the rukka to that effect which is Ex.PW10/C. PW11 Ct. Raj Kumar was the special messenger who delivered the copy of FIR to various senior police officers and to the concerned area Magistrate on 17.12.2006 and on 21.12.2006 he joined the investigation of the case along with the IO HC Ramesh and the complainant and at 6.30 p.m, at Narela Bus Terminal, at the SC No.10/11 Page 6/80 pointing out of complainant, accused Chander Mohan was arrested vide memos Ex.PW11/A and Ex.PW11/B and in his cross examination on behalf of the accused, he denied the suggestion that FIR was ante timed in the case and delivered at a late hour at the residence of Area Magistrate and other senior officers of the police and that he falsely concocted a story of his motorcycle having got punctured as a reason for the delayed delivery of the FIR. PW15 Sh. Sanjeev Kumar was the Halka Patwari of Village Lampur, Narela in the office of SDM Narela, Delhi and he proved the Khata Khatoni No.4 consisting of the land measuring 185 Bigha and 11 Biswa in the name of Arjun, Jeevan Lal, Heera Lal, Chottey Lal all sons of Rati Ram as well as in the name of other persons and he deposed that in the said land, Arjun, Jeevan Lal, Heera Lal and Chottey Lal were in the possession of 2/3rd share of the said area and he proved the certified copy of the same as Ex.PW15/A and he had also proved the Sijra of the year 1951­1952 as Ex.PW15/B whereby the land, where the dead body was found, was falling as Mustkil No.40 and Khasra No.9 and the said two documents were handed over by him to the police. In his cross examination on behalf of the accused, he replied that he had visited the spot at the request of the police and it was not his duty to maintain the record about the cultivation by filling P5 form. He replied that as per Khasra Girdawari register of the year 2005­06 and 2006­07, the name of Ramesh Chand and SC No.10/11 Page 7/80 others was entered in column no.4 and photocopy of the relevant entries are Ex.PW15/DX1 and DX2 and said Arjun, Jeevan Lal, Heera Lal, Chottey Lal all sons of Rati Ram were entered in column no.2 besides the name of Ramesh Chand and other persons. He could not say from the said record brought by him as to who were the recorded Bhumidars in respect of land falling in Khasra No.40/2 situated towards the Northern side, 40/8 situated towards Eastern side and 40/10 situated towards the Western side and 40/12 situated towards the Southern side and he volunteered that names of all the Bhumidars are entered jointly in respect of entire field falling in Khasra No.40, but again said, Baljeet Singh s/o Ram Swaroop was the recorded Bhumidar in respect of land containing in Khasra No.40/2 and the land falling in Khasra No.40/9 was joint land. He admitted that when he visited the spot along with the police, he was not aware about the person who was sowing the land falling in Khasra No.40/9 and that the relevant portion of Sijra showing the aforesaid land was Ex.PW15/DX3.

9. Other formal witnesses are PW17 ASI Jai Singh who was posted at PCR van on 17.12.2006 which reached the spot at about 9.15 a.m on receiving an information that a boy was buried in the field of flowers at Lampur Village, outside beggar's house after killing, from PHQ and he saw the dead body of a boy named Ankit lying in the rose filed, covered with Peepal tree branches and family SC No.10/11 Page 8/80 members of Ankit were also present there and had caught hold of accused Anand present in court and were also giving beatings to accused Anand and they were shouting that accused Anand had killed Ankit (in vernacular "Isne Ankit Maar Diya") and he took accused Anand in his PCR van to SRHC hospital and in the meantime, SI Mahender Singh also reached the hospital and he handed over the custody of accused Anand to SI Mahender Singh and left the hospital and reached at the base of his duty and he was shown the photograph Ex.PW13/6 attached with the file and the witness stated that he found the position of the dead body as the same as depicted in the said photograph and he was not cross examined on behalf of the accused. PW20 HC Om Prakash was on emergency duty on 17.12.2006 and he handed over the copy of DD No.13A to SI Mahender Singh at the spot, attested copy of which is Ex.PW20/A which was regarding a quarrel at Lampur Village, H.No.55 and the said information was received at 9.14 a.m. PW21 Inspr. Mukesh Kumar got conducted the autopsy on the dead body of the deceased and Ct. Sunil handed over to him one sealed parcel sealed with the seal of BJRM hospital which he seized vide seizure memo Ex.PW21/B and on 22.03.2007, one Pradeep Kumar handed over one copy of Khatoni of Khasra No.40/2 which was seized vide memo Ex.PW3/B and thereafter he along with the IO went to the office of Patwari where Sanjeev Kumar Patwari met them and his SC No.10/11 Page 9/80 statement was recorded. PW22 SI Suraj Bhan was the In charge of the crime team who proved his report Ex.PW22/A and in his cross examination on behalf of accused, he replied that he received the information from the IO at about 10 a.m and he along with his team reached the spot at about 11.15 a.m and some public persons were present at that time and they remained at the spot for about one hour. He replied that IO did not record the statement of any public person in his presence. Inadvertently one Sh. Pramod Kumar was again examined as PW22 probably for the reason that deposition of PW22 SI Suraj Bhan was written in pen and now Sh. Pramod Kumar shall be read as PW22A and his deposition and documents shall be read as per context, who was a photographer and on 17.12.2006, at the request of the IO, he reached the spot and took the photographs which are already Ex.PW13/1 to Ex.PW13/20 and the strips of the negatives thereof are Ex.PW22/A and in his cross examination on behalf of the accused, he replied that when he reached the spot, crime team was available there along with the SHO of the concerned PS. PW23 SI Karan Singh is the witness of pointing out the spot by accused Azad and memo to that effect is Ex.PW23/A. PW24 Ct. Praveen is the witness of formal arrest of the accused Azad, after the permission of the court, vide memo Ex.PW24/A.

10. PW2, Dr. Upender Kishore was the autopsy surgeon who deposed that he found (i) lacerated wound of size 0.5 x 0.3 x 0.2 cms SC No.10/11 Page 10/80 present over the inner aspect of right side upper lip, with bruises and dislocation of second incisor, (ii) contact electric current mark of size 5 x 0.5 to 1 cm present over the right side cheek in front of right ear and the mark was dry hard greyish reddish in colour, (iii) contact electric current mark of size 0.5 x 0.5 cm present over the inner aspect of right forearm in the middle place 7 cm above the injury no.4, (iv) contact electric current mark of size 1.5 x 1.5 cm two in number present over the middle outer front of right forearm which was 3 cm above the wrist greyish white in colour and (v) abrasion scratch multiple present over the back of chest in an area of 5 x 4 cm, on external examination of the dead body and in his opinion, he deposed that cause of death was shock due to electrocution and the injuries no.1 and 5 produced by blunt force impact and injuries no.2 to 4 produced by contact with live wire and he also preserved clothes and he proved his PME report as Ex.PW2/A. In his cross examination on behalf of the accused, the doctor answered that injury no.1 was possible if the deceased fell down after getting touched with live electric wire and the injury no.5 is also possible if the person was dragged and even if a person fell down on the plant of rose. He further answered that it is possible that a person may survive for few minutes after electrocution.

11. PW12 SI Mahender Singh deposed regarding receiving of DD No.14A on 17.12.2006, which is Ex.PW12/A and reaching the spot SC No.10/11 Page 11/80 along with Ct. Sunil, which was a rose field belonging to Chottey Lal at Village Lampur where he found the dead body of said deceased Ankit in the middle of the field covered with branches of Peepal tree and one pair of chappal was also found lying there. Thereafter he described the scratches and burnt spot on the right hand and left hand fingers of the dead body. Thereafter he recorded the statement of complainant Surender Ex.PW1/A and he prepared the rukka Ex.PW12/B which was handed over to Ct. Sunil, accompanying him, for getting the FIR registered and the further investigation was handed over to Inspr. Ram Kishan who called the private photographer who took the 20 photographs which are Ex.PW12/X1 to X20 and NDPL officials were also called who inspected the spot, crime team was summoned who inspected the spot and accused Anand was injured due to beatings by the public and was already shifted to hospital by PCR van and at the instruction of the IO, he went to the said hospital and accused Anand was discharged from the hospital and he obtained his MLC and brought accused Anand at the spot and IO lifted the branches of Peepal tree and one pair of chappal and seized the same after sealing vide memo Ex.PW1/C and the wire which was fenced around the rose field was removed by the NDPL officials which was also sealed and seized vide memo Ex.PW1/B, accused was arrested vide memos Ex.PW1/D and Ex.PW1/E and thereafter inquest papers were prepared and dead SC No.10/11 Page 12/80 body was sent to BJRM hospital for preserving the same vide his application Ex.PW12/C and on 27.02.2007, he along with SI Manohar Lal, the draughtsman, reached the spot and showed him the place of occurrence and he identified the naked metallic wire as Ex.P1 and pair of chappal as Ex.P2 and Peepal tree branches with leaves as Ex.P3.

12. In his cross examination on behalf of the accused, he replied that when he reached at the spot around 9.40 a.m, there were about 25/30 persons present but parents of the deceased were not present. He replied that public persons had not told him anything about the incident. He replied that he started writing statement of complainant Surender at 10 a.m. He answered that he did not disconnect any electric wire from any pole and in his presence no public person had removed the electric wire. He came to know that rose field belonged to Chottey Lal where the dead body was lying but accused Anand was cultivating the rose plants in the said field. He had no knowledge whether Sanjay, Ashok and Surender, who are witnesses in this case, belonged to the same family or not. He admitted that when crime team reached the spot, he was present there. He denied the suggestion that FIR was ante timed and statement of Surender was not recorded at the spot.

13. PW25 Ct. Sunil deposed regarding reaching the spot with SI SC No.10/11 Page 13/80 Mahender Singh, finding of the dead body of the said deceased, SI preparing the rukka which he took to the PS for registration of the case and thereafter he came back to the spot with original rukka and copy of FIR which was handed over to IO SI Mahender Singh and thereafter the dead body was shifted to mortuary by him with a request application to preserve the body for 72 hours and on 18.12.2006, SI Mukesh Kumar got conducted the autopsy after identification of the dead body and the dead body was handed over to the legal heirs and after autopsy, the doctor handed over to him a sealed parcel which he gave to the IO vide memo Ex.PW21/B. In his cross examination on behalf of the accused, he replied that at the spot there were 70/80 persons present and Sr. Officers also reached the spot almost simultaneously. He answered that on the right side of dead body of deceased, towards Haryana, there was a tube well at a distance of about 500 meters and senior police officers had gone to the tube well to make necessary inquiries about the occurrence but he did not remember if anybody met there. He answered that when they reached the spot, the father of the deceased was not present but was called by the senior officers from his house and first of all the statement of the father of the deceased was recorded. He did not know if the IO had recorded the statement of anybody at the spot. He replied that by 12.30 p.m, he came back to the spot after taking the copy of FIR. He replied that crime team reached the spot at SC No.10/11 Page 14/80 about 1 p.m while he was leaving for hospital for the postmortem and in order to put the body under preservation in the hospital. He further answered that at that time he was carrying the dead body in the tempo and that since crime team reached the spot, after his leaving from the spot along with the dead body, hence, he could not tell whether crime team made any inquiry from the public person or not. He replied that during his stay at the spot, no eye witness came forward who could tell anything about the occurrence.

14. PW26 Inspr. Ram Kishan, the IO of the case deposed on the same lines on which PW12 deposed and he further deposed that DD No.13A, Ex.PW20/A, which was with regard to a quarrel at Village Lampur, was entrusted to HC Om Prakash and this DD was also given to him by HC Om Prakash. Inadvertently in his deposition the inquest papers have been exhibited as Ex.PW25/B to Ex.PW25/D which should have been Ex.PW26/B to Ex.PW26/D. He further deposed that on 18.12.2006, two persons namely Ashok and Ram Kishore came to the PS and met him and they had produced two photocopies of the complaint made by them to PS Narela against accused Anand dated 03.10.2006 and 03.01.2003 and at that time they had the carbon copy received from the PS with them and after comparing the photocopy of the complaints from the carbon copy he took both the complaints vide memo Ex.PW18/A and copies of the complaints are Mark Y and Mark X and thereafter on SC No.10/11 Page 15/80 21.12.2006, he arrested accused Chander Mohan at the instance of complainant and thereafter he identified the case property.

15. In his cross examination on behalf of the accused, the IO replied that the person who made a call to the PCR met him at the spot but he did not remember his name and he was uncle of the deceased and is a witness in the present case. He further answered that when he reached the spot there were 20/30 public persons present including the father of deceased namely Pradeep but he could not say as to whether other family members of the deceased were present at that time or not. He answered that he made inquiries from the persons available at the spot about the tube well of Dalip but he did not remember as to what was told to him by the persons about the same. He did not remember if he had seen the tube well of Dalip and that there were many tube wells in the vicinity where the dead body was found and the nearest tube well was situated at a distance of 1 or 1.5 acres. He did not remember if he had made any inquiry about the said person Dalip r/o Village Lampur and his identity. He answered that officials from electricity department reached the spot at about 10 a.m. and at that time there was no electric current found in the said wire on checking by them and he volunteered that by that time, the wires were already disconnected from the main line. He answered that when he reached the spot, the electricity connection had already been disconnected by somebody SC No.10/11 Page 16/80 but not in his presence. He did not remember as to from whose field the electricity connection had been taken in the said wires. He answered that in the field where the dead body was found, no other adjoining field was found having crop of roses cultivated. He met the father of the deceased at the spot and recorded his statement but he did not remember the time. He answered that by the time he reached the spot, SI Mahender had not recorded the statement of any witness. He answered that the crime team reached the spot at about 10.15 a.m. and during the stay of the crime team at the spot, the dead body remained lying there in the field and the rukka was sent to the PS during the presence of crime team officials at the spot. He did not remember if the farmers were working in the adjoining fields or not. He answered that he removed the branches and leaves of Peepal tree from the dead body after about 1½ hour of his reaching at the spot. He admitted that public persons at the spot informed him that accused Anand was beaten by the family members of the deceased. He did not remember if he recorded the statement of any witness to that effect or not. He replied that the said photocopies of the receipted copies of the complaint given by Ashok and Ram Kishore were checked by him in the roznamcha as well as in the complaint register where the entries of the said complaints were found recorded but originals of the same could not be traced out due to the record being old. He did not remember if the said roznamcha or SC No.10/11 Page 17/80 complaint register was seized by him in this case or not. He replied that on the said photocopies of the complaints, the DD number as well as stamp of the PS was mentioned, but he did not seize the said carbon copies of the said complaints because on his asking, the said persons refused to give the same being required by them for any other further reference and they assured that the said carbon copies would be produced before the court. He did not recollect if he came to know regarding one Daya Nand @ Langra s/o Jodha Ram r/o Mandora, Sonepat, Haryana, who had taken the guava field on rent belonging to the deceased family and as such, he was continuously residing at the said nearest tube well. He replied that it is not in his knowledge if the said Daya Nand had left the said field and the tube well after the incident. He answered that neither it is in his knowledge nor it was brought to his notice by the witnesses that one Bala Devi wife of accused Azad had got recorded FIR no.224/98, PS Narela, u/s 323/341/506 IPC against the said three uncles of the deceased, the eye witnesses of the present case and it has also not come to his knowledge that the said three uncles of the deceased as well as families of accused are having a dispute over a big piece of land regarding which various civil suits up to the Hon'ble High Court were filed, pursued and are still pending and he had no knowledge if on the day of FIR of the present case, the civil suit was pending between said two parties before the court of concerned ADJ SC No.10/11 Page 18/80 at Tis Hazari Courts over the said piece of land and it is also not in his knowledge if at the time of present incident, the family of the accused was in possession of the said land. He further replied that it is not in his knowledge that when all the accused were arrested and sent to jail, the family members of the deceased forcibly dispossessed the remaining family members of the accused from the said disputed land situated in Khasra No.87/3 of the revenue estate of Village Lampur and now they had constructed a Samadhi of their ancestors after taking the forcible possession of the land from the remaining family members of the accused i.e. ladies and children.

16. Let me now discuss the evidence of PW4 Sh. Pratap Singh, Assistant Engineer, NDPL, who deposed that on 17.12.2006, he received a message from the police on which he along with Sh. Shanker Patel, Trainee Engineer, reached near the tube well of Sh. Chottey Lal, Village Lampur and on the spot, they found a dead body lying in the rose cultivated agricultural field and the distance of the dead body was about 70 meters from the NDPL LT Line and LT system was healthy, no illegal hooking on the NDPL LT Line was found but some wire which was connected with 4 number lamps installed in rose cultivated land lying on the ground under the NDPL LV mains having joints and the rose garden was fenced with GI wire. The said four number lamps were existing on the wooden support temporarily earthed and that he prepared his report on SC No.10/11 Page 19/80 27.02.2007 which is Ex.PW4/A and the rough sketch of the site was Ex.PW4/B. In his cross examination on behalf of the accused, he replied that both the said documents Ex.PW4/A and Ex.PW4/B were not prepared in the presence of police and he inspected the aforesaid field at about 10.45 or 11 a.m when police officials were also present. He further answered that he never received any complaint from any of the villagers with regard to illegal theft of electricity and that their officials do visit the area in order to check the electric lines/wires and that none of his employee ever gave him any report regarding theft of electricity at or around the place of incident. He admitted it as correct that when he visited the spot there was no electric current flowing in the fencing around the rose field.

17. PW13 Sh. Shanker Patel was also an official of NDPL, the Electric Company, who deposed on the same lines in his examination in chief as deposed by PW4 above and he further deposed that there was fencing of naked GI wire around the said rose field and there were four electrical bulbs illegally installed on wooden boards inside the said field and one side of the fencing wire was lying beneath NDPL LV main and it appeared from this that wire was detached from LV main after the incident and that if the said wire would not have been detached from LV main, then it would have been connected with the LV main and if the said wire was found connected with the LV main, then there must be electric SC No.10/11 Page 20/80 current in it which had transmitted the electric current in the entire fencing as well as in the electric bulbs. He was further shown 20 positive photographs Ex.PW13/1 to Ex.PW13/20 and he identified the spot shown in the photographs as well as wiring of fencing as depicted in those photographs at the spot and he deposed that later on on 27.02.2007, Sh. Pratap Singh (PW4) prepared inspection report Ex.PW4/A in his presence. In his cross examination on behalf of the accused, he replied that he did not receive any complaint of theft of electricity at Lampur Village. The line men used to check the wiring in the colonies. He admitted that line men in case found any defect, then they used to report in the office and there was a separate department for conducting raids regarding theft of electricity. He answered that he did not receive any complaint about the current in fencing around the field during his service in Narela Zone. On the day of inspection, as per his reply, he did not find any illegal connection in the area or place of occurrence and there was no current in the fencing around the field of Chottey Lal when they reached there.

18. Coming to the public witnesses, PW1 Surender Kumar is the eye witness of the incident who deposed on the lines on which FIR was recorded and further deposed that accused abused him and ran towards him and looking at this, he came back on his scooter near STD booth situated near the village and made a telephone call to SC No.10/11 Page 21/80 Vijay Kumar and after sometime, Sanjay and Vijay Kumar came in a car near the road outside the village and they went to their fields and saw deceased Ankit lying in the middle of the field covered with leaves and wood and the accused Chander Mohan and Azad, who were present at a distance of about 200 feet from there, ran away after looking at them but they managed to catch hold of accused Anand and in the meantime, some other villagers also arrived and they thrashed accused Anand and after sometime, police arrived and apprehended the accused and recorded his statement which is Ex.PW1/A and police seized the naked wire vide memo Ex.PW1/B, leaves, wood and chappals of the deceased vide memo Ex.PW1/C and accused Anand present in court was arrested vide memos Ex.PW1/D and Ex.PW1/E and the dead body of his nephew was taken to the PS from where it was taken to mortuary and that he identified the dead body vide his statement Ex.PW1/F and after the autopsy, the dead body was handed over to them and that on 21.12.2006, accused Chander Mohan present in court was present at Narela Bus Terminal and he (the witness) found the HC Ramesh Chand and other 2/3 police officers and accused Chander Mohan was arrested and his statement was recorded by the IO and he identified the case property, the wire as Ex.P1, the slippers of the deceased as Ex.P2, wood and leaves as Ex.P3 but he did not remember the colour of the clothes which the deceased was wearing SC No.10/11 Page 22/80 at that time and thus, could not say as to whether he would be able to identify them, if produced before him and thereafter the clothes of the deceased were shown to him which the witness identified as that of the deceased Ankit at the time of incident. He further deposed that he pointed out the place of incident to the IO, who prepared the site plan as Ex.PW1/G.

19. In his cross examination on behalf of the accused, he replied that he stated in his statement Ex.PW1/A to the IO that initially when he saw Ankit, the accused persons were giving beatings to Ankit by leg and fist blows and on confrontation with the said statement Ex.PW1/A, where it was found recorded that accused were abusing and were doing "Hatha Pai" (scuffle) with Ankit. He replied that he stated in his said statement before the police that he asked the accused as to why they were beating Ankit and this deposition was not found recorded in his previous statement Ex.PW1/A. Again his deposition that accused persons had also abused him was not found recorded in his previous statement Ex.PW1/A on confrontation. He replied that he had stated in his said statement that he made a call to Vijay after coming near STD booth on his scooter and the fact of scooter and STD booth were also not found mentioned in his said previous statement. He admitted that in the year 1998, a case was registered against himself, Ashok and Sanjay, who are his cousin brothers at PS Narela for the offence SC No.10/11 Page 23/80 u/s 323/341/34 IPC on the complaint of accused Azad and his wife Smt. Bala Devi. He further admitted that Ashok and Sanjay are witnesses in the present case also. He further admitted that some dispute is going on between his family and the family of the accused persons over the possession of the land measuring 2 bighas belonging to Gram Sabha and a part of it is under their possession and the remaining portion is under the possession of accused persons. He admitted that on 06.05.2003, as compromise was arrived at between the two families, and they also accordingly filed a compromise deed in the criminal case pending trial before the concerned Magistrate in case FIR no.224/98, PS Narela. He further admitted that dispute over the said piece of land was still going on between them and even civil litigation in that regard was pending in the court. He further admitted that on the said disputed piece of land, a Samadhi had been constructed in the year 2008 and he volunteered that it was constructed by the villagers as a whole. He admitted that he was also involved in the construction of the Samadhi along with the villagers and that his cousin Ashok Kumar was running an NGO in the village and was the head of the said society. He was not aware as to whether said Ashok claimed that the house of accused persons on the said disputed piece of land should also be demolished and a park should be constructed over there or not.

SC No.10/11 Page 24/80

20. PW1 further replied in his cross examination that after looking the incident, he did not made a phone call to the police at number 100 but he rang up Vijay from PCO. He admitted that there was a police post about 100 meters away from the said PCO from where he made the call to Vijay. He further admitted that house of Pradeep, the father of the deceased, was situated at a distance of 2­4 minutes from the said PCO and that he did not give information about the incident either to the Pradeep or at the Police Post and that he did not make any telephone call to Pradeep as he was not having his telephone number. He further replied that he had asked Vijay to inform about the incident to Pradeep also, but he had not told Vijay that Ankit had been thrown on live naked electric wire. He admitted that till the time police reached the spot, he had only informed about the incident to Vijay and to no one else and Pradeep met him at the fields itself around 9 a.m. He was not aware as to whether till that time Pradeep was aware of the incident or not. He replied that he informed Pradeep at around 9 a.m that he (the witness) had witnessed the accused persons throwing Ankit on live naked electric wire and thereafter Pradeep made a call to PCR at phone number 100 but the call was not made in his presence. He further replied that when he met Pradeep, at that time Vijay and Sanjay were also present there. He did not remember as to whether local police or the police of PCR reached the spot first and that he was present at the SC No.10/11 Page 25/80 spot when the police reached the spot for the first time. He replied that he had told the said two police officials who had reached the spot first in point of time that he had seen the accused persons throwing Ankit on live naked electric wire. He did not know whether crime team reached the spot or not. He replied that he remained at the spot from 9 a.m to 1 p.m and during this time a number of police officials made inquiries from him. He signed the first document at the spot at about 10 or 10.30 a.m and at that time Pradeep was present at the spot, but he did not know as to whether his statement was recorded by the police.

21. PW1 further admitted in his cross examination that the field where the incident took place belonged to accused Anand and he had planted rose plants in it and that there was a clear division in their (the witness) family including that of the accused persons as to which of the fields were to be sowed by whom. He admitted that there was no dispute between their family and that of the accused persons regarding the fields to be sowed by them. He admitted that from the road the field of Raj Kumar comes first which had a boundary wall of 7 feet height and thereafter the field of Pradeep was situated and after that, field of accused Anand, where the incident took place, was situated. He admitted that in the last portion of the field of Pradeep which was touching the field of accused Anand, where the incident took place, there was water SC No.10/11 Page 26/80 having been put for the purpose of irrigation by Pradeep and the said portion having water was about 10 feet wide.

22. PW1 further answered in his cross examination that he saw the incident from a distance of about 200 yards and at that time he had already crossed the field of Raj Kumar and when he saw the incident initially, the same was going on in the field of accused Anand just near the area which bifurcates his field from that of Pradeep. He replied that accused persons and deceased Ankit were about 4 feet inside the field of accused Anand and that the live electric wire was put by accused Anand in his field just towards the end on the side of field of Pradeep after putting wooden dandas and wire was at a height of about 3 feet from the ground. He further replied that Ankit was thrown on the wire from a distance of about 2/3 feet who fell with his face towards the wire but he could not see as to which portion of his body actually touched the wire and he was not aware as to whether the said wire as a result of the same broke down or got bent. He admitted that in their area people usually plant rose plants in their fields and there was a problem of Neel Gai (a species of deer and shall be referred as wild animal for further reference in this judgment), who usually eat away the rose plants and destroy the crops thereby. He admitted that in order to save their crops, villagers usually put live naked electric wire around their fields and the electricity which was put through the said wire during SC No.10/11 Page 27/80 night time, was usually switched off in the morning hours. He was not aware as to at what time accused Anand used to put on the current in the wire in the night or at what time he used to put off the same. He replied that the way to his field was about a Kila away from the field of accused Anand. He further replied that he did not know as to who all the persons were who were beating accused Anand at the spot. He did not ask anyone even at the spot to convey the information about the incident to the father of the deceased namely Pradeep. He admitted that Pradeep has his tube well in his field adjacent to that of accused Anand. He was not aware as to whether one person by the name of Langra used to remain present at the tube well of Pradeep or not. He replied that none of the accused were having any danda/lathi in their hands. He further replied that a number of persons from the village were passing the said road when he was going towards the PCO booth and at the PCO booth, the booth owner was there who belonged to his village only and that there were some persons present in adjacent shops also but he did not tell about the act of the accused persons to anyone, either on the way or at the PCO booth or at the adjacent shop.

23. PW3 Pradeep Kumar, who is the father of the deceased, deposed that on 17.12.2006, he was present at his house at about 9 a.m when he received a telephone call that a quarrel had taken place with his son Ankit in his fields and he accordingly went over there SC No.10/11 Page 28/80 and found that his son had been killed and people were taking the name of Chander Mohan, Anand and Azad Singh and the dead body was lying in the field of roses belonging to Chottey Lal, whose sons are present as accused in the court and that he identified the dead body of his son vide his statement Ex.PW3/A and surrounding the said field of roses the accused persons used to till the field, had put naked wire around it after putting wooden dandas and the accused used to put electric current through the said wires and accused used to put a hook of wire on the overhead NDPL electric cable and through it, the electric current used to be put in the wire around the field and one end of said wire thus used to be put to the overhead cable and the other used to be joined with the wire surrounding the field and whenever one needs to enter inside the field, then the end of the wire, which used to touch the wire around the field, used to be removed and the entry was made thereafter and people used to tell the accused not to resort to such kind of activities as it might be dangerous but they did not relent. He further testified that at the time of removing the body also, he had asked his brother Sanjay to first go and bring someone from NDPL so that the current in the wire surrounding the field may be stopped. He further deposed that his fields and that of the accused were adjacent to each other and his fields lie on the Northern side of the field of accused persons in Khasra No.40/2 and later on, he had also handed over copy of SC No.10/11 Page 29/80 Khatoni Ex.PW3/PZ1 of his fields to the IO which was seized vide memo Ex.PW3/B. In his cross examination on behalf of accused, PW3 replied that he did not know as to who had informed telephonically about the incident at his fields. He further answered that his house was situated about 200/250 yards away from the STD booth situated at bus stand of their village. He admitted that a police post existed near the bus stand. He admitted that he did not inform at the police post that a quarrel involving his son had taken place. He replied that the place where the dead body of his son was lying came in the share of accused Anand, who had planted the said rose plants and police reached the spot later on and crime team did not make any inquiry from him nor the local police made any inquiry from him at the spot. He further replied that PW2 Surender was his cousin brother but he was not aware as to whether some litigation was pending between the present accused and PW2 Surender or not regarding some piece of land. He was not aware as to whether accused persons had got any case registered against Surender at PS Narela or not. He volunteered that at times there used to be some small quarrel over the boundary line dividing their fields with the accused. He admitted that he and the accused persons or PW2 Surender were not having any land in common.

24. PW6 Vijay Kumar deposed that on 17.12.2006, at 8.40 a.m, his cousin brother Surender Kumar called him on his mobile phone SC No.10/11 Page 30/80 no. 9810009108 and told him that Anand, Azad and Chander Mohan, all sons of Chottey Lal, were beating Ankit s/o Pradeep at the boundary of the fields of Pradeep and Chottey Lal and called him immediately, on which he took his cousin brother Sanjay with him in his Esteem Car no.DL2CAG­0353 and reached near STD booth and from there they took Surender with them and reached the fields of Pradeep and Chottey Lal, where they found the dead body of Ankit lying in the middle of the field of Chottey Lal covered with Peepal tree branches and leaves and looking at them, accused Anand, Azad and Chander Mohan tried to run away and they apprehended Anand on the spot and other two ran away from the spot and thereafter villagers came there and they gave beatings to Anand. In the meantime, PCR was informed and police reached there and Anand was handed over to the police and that earlier there was dispute between the family of Chottey Lal and family of Pradeep over the boundary of the field and villagers had got compromise between them. In his cross examination on behalf of the accused, he replied that police had recorded his statement on the same day at the spot. He replied that he stated to the police that Surender met him near the STD booth and on confrontation with his previous statement Ex.PW6/DX, the said fact was not found recorded and he volunteered that STD booth and police post were near to each other. He replied that he had not stated to the police SC No.10/11 Page 31/80 that villagers had got compromised the matter between the family of Chottey Lal and Pradeep. He replied that distance between Village Bhore Garh and Lampur was about six kilometers and he picked up Sanjay after receiving the message from Surender from his house at Lampur and he told Sanjay about the message given by Surender at his house and he did not inform the father of the deceased or his mother about the aforesaid quarrel and that he had not informed at the Police Post situated at Bus Stand Lampur about the incident of quarrel nor Surender informed anybody in his presence about the quarrel. He further replied that he could not tell whether an FIR was registered by accused against Surender and his brothers at PS Narela. He denied the suggestion that there was any litigation or dispute pending between family members of the accused persons and family members of Surender. He further replied that no public person was available when they reached the spot and even after looking at the dead body, he did not inform the family of the deceased nor Surender informed anybody in his presence nor he informed the police officials nor Surender informed the police with regard to dead body lying in the field. He answered that he had not removed/disconnected any electricity wire. He replied that he did not send either Sanjay or Surender to the house of deceased Ankit to inform the family members of the deceased about the incident. He admitted that he was having mobile phone at that time but Surender SC No.10/11 Page 32/80 was not having any phone. He replied that he did not inform the police at number 100 about the incident. He did not remember whether he told to the crime team officials or not that Surender had told him that three accused were beating Ankit. He even did not know if Surender told about the same to the crime team or not.

25. PW14 Sanjay Kumar deposed the facts on the lines on which PW6 Vijay deposed regarding reaching the spot, looking at the dead body of the deceased, the accused tried to run away from there and apprehension of the accused Anand at the spot and beatings given to him by the villagers and he further deposed that PCR officials took accused Anand @ Anney from the spot. He testified that there was previous dispute in between the family of Chottey Lal and family of Ankit over the issue of water in the field and prior to the incident, accused Anand @ Anney had threatened his (the witness) brother Ashok Kumar over the issue of water and that deceased Ankit was his nephew i.e. the son of his real brother Pradeep. He further deposed that said field of roses came into the share of Chottey Lal in partition and all the three accused used to tie naked electric wire around all the sides of the said field of Gulab by affixing the wooden dandas on four corners and on a wood, electric bulbs were fitted and accused used to put a hook in the cable line of NDPL and one end of electric wire connected with the hook used to be connected by the accused with the naked electric wire tied on all the four sides of the SC No.10/11 Page 33/80 field because of which the naked wires of the field were having electric current and the electricity bulbs fixed in the field also used to get electric current and when accused persons were to enter in the field, then they used to remove the one end of the electric wire from the divider of the field and then they used to enter inside the field and many village people advised the accused persons not to put current in the naked electric wires fixed around the field as some incident could happen but they did not understand. He further deposed that on 17.12.2006, he had removed the electric wire from the NDPL cable line with the help of wood on the asking of Devender and Pradeep.

26. In his cross examination on behalf of the accused, PW14 replied that he had not stated to the police in his statement that there was previous dispute between the family of Chottey Lal and family of Ankit over the issue of water in the field and he had also not stated to the police in his statement dated 17.12.2006 that prior to the incident accused Anney threatened his brother Ashok over the issue of water and that his second statement was recorded by the police on 23.02.2007. He further replied that he had not stated to the police the aforesaid facts of dispute over the issue of water and threat by accused Anney to his brother Ashok even in his statement dated 23.02.2007. He admitted that in the year 1998, a case FIR no.224/98, PS Narela was registered against him, his brother Ashok SC No.10/11 Page 34/80 and Surender on the complaint of accused Azad and his wife Smt. Bala Devi and he volunteered that the said case has no connection with the present case. He further admitted that Surender and Ashok were also the witnesses in the present case. He admitted that a case was compromised in the court of Ms. Raj Rani Mitra, the then MM, on 06.05.2003. He replied that in 1998, the family of accused and entire village was in the common possession of field in question and till 2006, when present FIR was lodged, the family of accused was also having the possession of land besides the possession of entire family descendants of Shaila and that he was also one of the descendant of Shaila. He admitted that when all the accused were sent to JC in this case, a chabutra (platform) was constructed over the land in dispute. He did not know whether any civil litigation was going on between his family and family of accused with regard to the land in question in the court of Sh. Dinesh Bhatt, Ld. ADJ, Tis Hazari Courts, Delhi.

27. PW14 further answered in his cross examination that he was having mobile phone at the relevant time and on that day, when Vijay came to him, his (the witness) wife, mother, father and children were present at home and that the distance between his house and house of Pradeep was about 250 yards and that he did not telephoned to Pradeep about the information given by Vijay prior to accompanying Vijay. He replied that he also did not send any of his SC No.10/11 Page 35/80 family members to the house of Pradeep to convey information given by Vijay to him. He denied the suggestion that there was a police booth at the said bus stand, but volunteered the police booth was at some distance from bus stand and the police booth and STD booth were situated at a distance of 200/250 yards from the bus stand. He did not know if Vijay was having mobile phone at that time or not. He admitted that he did not inform the police about the information given to him by Vijay and they did not visit the Police Booth also at the time when they both were proceeding towards the field in question. He did not ask his family members to inform the police about the information received by him from Vijay. He did not remember as to how many persons met him on the way to the field. He replied that the distance between the house of Vijay and Pradeep was about 150/200 yards and when they reached the field of rose, police was not present there. He could not tell as to after how much time of reaching the police at the spot, Pradeep reached there. He was present at the spot when local police reached there and crime team perhaps reached after about one hour of his reaching at the spot. He replied that PCR officials did not inquire from him anything nor he told anything to the crime team officials. He admitted that in his presence Vijay and Surender did not tell anything to PCR officials. He could not tell about the field owners but the accused persons used to release the electric current in their SC No.10/11 Page 36/80 field in order to save the cultivation from wild Neel Gai during night time. He replied that when they reached the field of Chottey Lal, they did not check the wires as to whether the same were having current or not and nobody checked the same in his presence. He admitted that Surender and Devender are real brothers and are sons of his great uncle and that Vijay was son of his younger uncle and Ashok was his real brother. He admitted that there was dispute between accused and DDA with regard to land measuring 1000d/1200 yards and earlier it was pending at Tis Hazari Courts but he did not know whether the said case was pending till then or not and that he himself was not a party in the said litigation and he volunteered that his father might be a party in the said case but he was not sure.

28. PW18 Ashok Kumar deposed that accused Anney @ Anand present in court used to damage his crops from time to time and on asking to refrain from the same, the accused threatened to kill him by fire shot and in that respect he made complaint to the police on 14.01.2003 and the photocopy of which was Mark X and he had also made a complaint on 03.10.2006 which is Mark Y and photocopies of Mark X and Y were handed over to Inspr. Ram Kishan and same were seized vide memo Ex.PW18/A and he deposed that carbon copies of the complaint Mark X and Y could not be traced by him but he had brought the photocopies of the said complaints which are SC No.10/11 Page 37/80 Mark X1 and Y1. He further testified that on 03.10.2006, he made complaint against accused Anand in respect of damaging his crop time and again. In his cross examination on behalf of the accused, PW18 replied that he was running an organization under the name and style of Navyuvak Samaj Seva Mandal since 1977 and he was the President of the same and that accused were having possession of land measuring 170/180 sq yds in Khasra no.87/3 situated in the revenue estate of Village Lampur and accused were trying to trespass in the remaining portion of the said khasra and total Raqba of Khasra No.87/3 may be 2½ bigha and the said land was their ancestral land coming to the share of 160­170 family members. He replied that now a civil suit had been filed by his family members with regard to the aforesaid land by claiming its ownership and possession. He admitted that now the accused persons are not in possession of any land in khasra no.87/3 and his entire family members number 160­170 are in possession. He did not know as to who was in possession of land measuring 170/180 sq yds in khasra no.87/3 earlier possessed by accused persons. He admitted that Surender and Vijay are his cousins and Sanjay was his real brother. He replied that he did not file any criminal complaint case with regard to his complaints Mark X and Y when no action was taken by the police nor he filed any suit for recovery/compensation against the damages caused to his crops.

SC No.10/11 Page 38/80

29. PW19 Ram Kishore deposed that on 18.12.1986, he had gone to PS Narela along with Ashok Kumar s/o Baljeet Singh, of his village and Ashok Kumar had handed over photostat copies of two complaints to the IO which were dated 14.01.2003 and 03.10.2006 and the same were taken into possession vide memo Ex.PW18/A. In his cross examination on behalf of the accused, he replied that said Ashok Kumar was his cousin and he did not remember whether Ashok had given original copy of the complaint or photocopy to the IO. He did not remember whether the police official to whom the complaint was delivered, put his initial or any stamp on the said complaint or on the photocopy of the same. He answered that said complaint was written by typewriter. He could not tell the number of pages and he could not tell the designation of the said police official.

30. With this evidence on record, Ld. Counsels for the victims and the Ld. Addl. PP have vehemently argued that testimony of PW1 Surender Kumar, the eye witness, is reliable, coherent and unblemished and is corroborated by the other PWs on the record. It is further submitted that the alleged improvements in the statement of the eye witness do not go to the root of the matter because if the PW1 would have deposed exactly as per FIR, he would have been accused of being a tutored witness, who narrated the parrot like version. It has been further submitted on behalf of the prosecution SC No.10/11 Page 39/80 that alleged enmity between the public witnesses on one hand and the accused persons on the other hand, is a double edged weapon. It has been further contended that autopsy surgeon, PW2, in his report has specifically observed that injury no.1 and 5 could have been produced by blunt object and injury no.2, 3 and 4 were on forearm and palm and there were abrasion at the back of the chest of the deceased, which corroborates the version of PW1 Surender Kumar that the deceased was beaten prior to his death by the accused. It has been further contended that photographs depicting the place of incident proved on record go to establish that it was a field having earth and mud and said injuries, as observed in the autopsy report, would not have been caused by falling on the ground. It has been further contended as to why the body was found covered with leaves and branches of tree and what was the need of concealing the dead body. It has been further contended that the live wire was in three layers which could not have been removed by hand by the deceased or he would have jumped the wires in order to reach inside the field. It is further contended that forearm injury on the person of deceased suggested that he was thrown on wire by the accused. It has been vehemently argued that contradictions with regard to fact as to who removed the live wire are not very material in order to discredit the deposition of PW1. It has been further argued as to how the accused came inside the field in question without switching off the electric SC No.10/11 Page 40/80 current from the said wire fencing the field. It has been further submitted that deceased was strong and stout enough having a robust body who could not have been controlled by one accused only and the wooden plank could not have been broken due to the fall of the deceased. It has been further contended that if it was mere an accident by electrocution, then why the accused did not inform regarding the said incident to the parents of the deceased. It has been further argued by the Ld. Addl. PP, without prejudice to the said arguments, that case is otherwise covered u/s 304A IPC.

31. On the other hand, Ld. Defence Counsel has submitted that all the said public witnesses were closely related to each other having intimacy and the enmity has come on the record from the mouth of prosecution witnesses themselves having the grounds, reason, object and intention with PW1 Surender Kumar, PW6 Vijay Kumar, PW14 Sanjay Kumar, PW16 Devender Kumar, PW18 Ashok Kumar and PW19 Ram Kishore not only to manipulate an accident into a case of murder but to falsely implicate the accused in the present case. He has further submitted that whatever the arguments have been raised on behalf of prosecution are not borne out of the record and the same are not only self contradictory but proving the defence of the accused.

32. It has come on the record in the deposition of the alleged eye SC No.10/11 Page 41/80 witness PW1 Surender Kumar and PW14 Sanjay Kumar that there was a previous dispute in the family of Chottey Lal, the father of all the accused and family of deceased over the issue of water in the field and it has also come on record that even there was a dispute between the family of the accused and family of PW1 over the possession of a land measuring 2 bighas belonging to Gram Sabha as a part of it was under the possession of family of PW1 and remaining possession was with the family of accused persons. PW1 has gone to the extent of saying that dispute over the said piece of land was still going on and even civil litigation in that regard is pending in the court. It has also come on the record that on the said disputed piece of land, a Samadhi has been constructed in the year 2000 by the villagers as a whole and PW1 was also involved in the same. Even PW3 Pradeep Kumar, the father of the deceased, has admitted that at times there used to be some small quarrel over the boundary line diving their fields. It has also come on record that all the said public witnesses including the father of the deceased are closely related to each other. It has also come on the record that a previous FIR no.224/98 at PS Narela was got registered against PW1 Surender , PW14 Sanjay and PW18 Ashok by accused Azad and his wife Smt. Bala Devi. Further, PW18 has also admitted the previous dispute with regard to the said land between the said two families which was situated in Khasra No.87/3 and some of the said SC No.10/11 Page 42/80 witnesses also admitted that after the accused were put behind the bars in the present case, they are not in possession of the said land situated in khasra no.87/3 and PW18 admitted in his cross examination that at present his entire family consisting of 160­170 members were in possession of the said entire land. This is the admitted case of the IO PW26 Inspr. Ram Kishan that he was not knowing two facts during the whole investigation. First was the said enmity between the accused and the witnesses over the said piece of land, the dispute between father of the deceased and the accused over the divider of the said two adjoining fields, the said previous FIR got registered on behalf of accused Azad against the said witnesses and secondly, he was not aware if the said witnesses and the father of the deceased were related to each other in one manner or the other. Nowhere it has come on record that the said two facts were disclosed by the said witnesses or the father of the deceased to the IO. If they would have disclosed so, then I would have understood the enmity as the double edged weapon, as suggested by the Ld. Counsels for the victims. If a man openly declares his enmity well in advance with some person to the public authority, still he may be a truthful eye witness of a particular fact which he wanted to depose against the accused who is his enemy, but concealing the said facts from the IO and deposing the said facts for the first time before the court in their respective deposition go to SC No.10/11 Page 43/80 establish beyond reasonable doubt that the said enmity and close relationship of witnesses cannot be ruled out in manipulating the case against the accused who were admittedly having litigations, both criminal and civil, against the said witnesses. The double edged weapon, as argued, has got two interpretations whereby it may be said that accused were falsely implicated in order to take the revenge of the enmity or the witnesses may have really seen the incident committed by their enemies. If two interpretations are coming on the record, this is undisputed premises of law that one which is favourable to the accused must be adopted.

33. The next contention which was vehemently argued was the conduct of the accused in not informing regarding the said incident to the parents of the deceased, if it was an alleged accident at all. But, the Ld. Counsels for the victims did not argue here that it is also a double edged argument because the same allegation can be imputed to the said three PWs i.e. PW1, PW6 and PW14 in not informing the incident to the victim's family. Under the law accused has got a right to remain silent on this aspect. Even otherwise, he has got a justification in not informing the said accident, as alleged on behalf of the accused, that accused Anand was so stunned or afraid or fearing in his mind that the death has resulted due to his act of fencing the wires around the field charged with electric current and in these circumstances, he might not have informed the incident SC No.10/11 Page 44/80 to the family of the deceased. But, no explanation has come forth on the judicial record as to what prevented the said three PWs, who were admittedly residing at a distance of few hundred yards from the house of the deceased and were having all means of communications at their command, to inform the incident to the family of the deceased. A half hearted explanation has been given by the Ld. Counsels for the victims that PW6 and PW14 were in haste to reach the spot after receiving the telephone of PW1 from near the spot and as such, they may not have informed the family of the deceased at that time. This explanation is not borne out of the record because even after the said haste ended when they reached the spot and allegedly apprehended accused Anand and other two accused allegedly fled away from the spot, they did not inform either to the family of the deceased or to the police of PCR or to any other public person or even to the police booth which was admittedly situated very near to the STD booth or to the STD booth owner or to the local police. It is surprising that many villagers could come on the spot just after the incident, who, as per the version given by the said three witnesses, gave beatings to accused Anand, but not the family members of the deceased. Let me reproduce here the answers given by the PW1 in order to support my said conclusion. PW1 admitted that after the incident, he did not ring up the police at number 100 and he rang up PW6 Vijay from PCO. He admitted that there was a SC No.10/11 Page 45/80 Police Post about 100 meters away from the said PCO booth and that house of Pradeep PW3, the father of the deceased, was situated at a distance of 2­4 minutes from the said PCO booth and he admitted that he did not give information about the incident either to Pradeep or at the police post. He further answered that he had asked Vijay to inform about the incident to Pradeep also. He had not told Vijay that Ankit, the deceased, had been thrown on live naked electric wire and he further admitted that till the time police reached the spot, he had only informed about the incident to Vijay and to no one else. He further answered that he did not ask anyone even at the spot to convey the information about the incident to Pradeep and he was not aware as to whether Pradeep rang up PCR from the spot or from somewhere else. He admitted that number of persons from the village were passing on the said road when he was going towards the PCO booth. He admitted that the PCO booth owner was present there who belonged to his village only and there were some persons present in adjacent shop also but he did not tell about the act of the accused persons to anyone either on the way or at the PCO booth or at the adjacent shop.

34. Similar is the conduct of PW6 Vijay Kumar who deposed that STD booth and Police Post were near to each other. He admitted that he did not inform the father of the deceased or his mother about the aforesaid quarrel or to the police post situated at bus stand SC No.10/11 Page 46/80 Lampur about incident of quarrel and Surender also did not inform anybody in his presence about the quarrel. He further answered that even after seeing the dead body, he did not inform the family of the deceased nor Surender informed anybody in his presence and he also did not inform the police officials and Surender also did not inform the police with regard to the dead body lying in the field. He replied that he did not send either Sanjay PW14, or Surender PW1, to the house of deceased Ankit to inform the family members about the incident. He did not inform the police at number 100 about the incident. In the same manner, PW14 replied that on that day, when PW6 Vijay came to him, his wife, mother, father and children were present at home and that the distance between his house and house of Pradeep was about 250 yards and that he did not telephone to Pradeep PW3 about the information given by PW6 Vijay and did not send any of his family members to the house of Pradeep to convey the information given by Vijay to him. He also admitted that police booth was at some distance from the bus stand and police booth and STD booth were situated at a distance of 200/250 yards from the bus stand and that he did not inform the police about the information given to him by Vijay nor they visited the police booth at the time when they both were proceeding to the field in question. He further answered that in his presence Vijay and Surender did not tell anything to PCR officials. Thus, not informing the incident either to SC No.10/11 Page 47/80 the family of the deceased or to the public authorities or to other public persons despite proximity of distance, sufficiency of time, having means of communication, coupled with the said previous enmity, goes to establish that PW1, PW6 and PW14 wanted to cook up something and that was the reason they did not inform the family of the deceased or to the police ultimately resulting into the present case against the accused. A case with similar conclusion was decided by the Hon'ble Supreme Court titled Ganesh Bhawan Patel and anr Vs. State of Maharashtra reported as AIR 1979 SC 135 wherein it was held as under:

"Delay of a few hours, simpliciter, in recording the statements of eye­witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye­witnesses to be introduced. Thus under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story."

(para 15, 29)

35. Again, in a case titled Alil Mollah and another Vs. State of West Bengal reported as 1996 Crl. L.J. 3842, the Hon'ble Supreme Court was dealing with the conduct of sole eye witness not disclosing the incident to anyone and held that "he (the sole eye witness) did not go near his employer even after the assailants had SC No.10/11 Page 48/80 fled away to see the condition in which the employer was after having suffered the assault and according to him he got frightened and fled away to his home and that he also admitted in his cross examination that neither at his home nor in the village did he disclose what he had seen in the evening of 4th February, 1982 to anyone and that though in the morning of following day the witness went to the brick fields of the deceased employer and many of his co employees were also present there, he admitted that he did not disclose the occurrence to anyone of them and went on to conceal that even to the Manager of the brick fields he gave the information about the occurrence only after 2/3 days after the occurrence and that his statement was recorded by the police on the next day in the afternoon and that this conduct of the witness that he did not tell anyone about the occurrence till the next date appears to be rather unnatural and creates an impression that he had not witnessed the occurrence." Similarly, in case titled Peddireddy Subbareddi and others Vs. State of Andhra Pradesh reported as AIR 1991 SC 1356, it was held that eye witnesses after witnessing occurrence not reporting to any of the villagers and that his testimony clouded with strong suspicion and as such, false implication of accused not completely ruled out and accused was entitled to acquittal. Again in case titled Panda Nana Kare Vs. State of Maharashtra reported as 1979 Crl. L.J. 640, the Hon'ble Supreme Court held that the solitary SC No.10/11 Page 49/80 eye witness of murder disclosing assailant's name not immediately after occurrence to anyone, the conviction of the accused was held not proper. In the present case, even the PW1 did not disclose the incident to the parents of the deceased nor the said two witnesses also disclose about the same when there was no threat on behalf of the accused and they had already apprehended accused Anand at the spot and villagers had arrived, who allegedly gave beatings to the said accused Anand, is fully covered under another judgment of the Hon'ble Supreme Court titled Chanan Singh Vs. State of Haryana reported as AIR 1971 SC 1554, wherein it was held that conduct of the witness in running away from the place of occurrence even though he was not chased or threatened by anyone of the assailants and his not reporting the incident even to the relatives of either of the two deceased persons was treated as abnormal.

36. Coming to the circumstance that the dead body was dragged to the field in question and it was found covered with leaves and branches of a tree, it has been contended on behalf of the prosecution that in order to save themselves, the accused tried to conceal the dead body and otherwise there was no reason for concealing the same if it was mere an accident, as suggested in the defence of the accused. On the other hand, Ld. Defence Counsel has vehemently argued that it is again a double edged circumstance and SC No.10/11 Page 50/80 these may be PW1, PW6 and PW14, who manipulated and managed the concealment of the dead body in the said manner and during the said management of the dead body, in order to falsely implicate the accused, the injury could have been caused to the deceased.

37. Again, I agree with the Ld. Defence Counsel that the said circumstance was also a double edged weapon and covering the dead body with leaves and branches of tree at the behest of said three witnesses cannot be ruled out.

38. Now taking another contention on behalf of prosecution regarding the injuries received by the deceased, whereby it has been contended that forearm injury suggested that deceased was thrown on wires and injury no.1 and 5 were caused by blunt object corroborating the version of PW1 that he saw the accused giving kicks and blows to the deceased and thereafter deceased was thrown on the wires having electric current.

39. The autopsy surgeon, PW2, neither in his deposition nor in his report Ex.PW2/A deposed as to whether the injury no.1 and 5 were ante mortem or post mortem. In his cross examination, he specifically replied that injury no.1 was possible to be caused if the deceased fell down after getting touched with live electric wire and injury no.5 was possible if the deceased was dragged and even if a person fell down on the plant of rose. This deposition of PW2, the SC No.10/11 Page 51/80 autopsy surgeon, completely wipes out the said contentions raised on behalf of the prosecution. The only inference is that again two kinds of evidence or interpretation have come on the record and again one favourable to the accused, under the law, must be adopted. Further, it was for the prosecution to establish beyond reasonable doubt as to who covered the dead body with leaves and branches of a tree and it was not incumbent upon the accused either to explain or to disprove the said facts. On the same ground the other minor contentions that there was mud, earth and water in the field, which would not have caused such injuries, are also not tenable in the circumstances of the case. Yet another contention that deceased was of strong and stout health, who could not have been controlled by one person, is having not much water because the parties allegedly present at the spot were equal in strength i.e. three accused and three witnesses PW1, PW6 and PW14 and if the said argument is to be read against the accused, it can equally be read against the said three witnesses as per the defence of the accused that the witnesses having the said intention manipulated the scene of the crime and dealt with dead body, who otherwise died due to receiving electric current.

40. Coming to the other aspects of the alleged eye witness PW1 Surender Kumar, it has been vehemently argued by the Ld. Counsels for the victims that the alleged improvements in his statement do not go to the root of the matter and they are of minor nature and on the SC No.10/11 Page 52/80 other hand, the defence of the accused is that these are PW1, PW6 and PW14 who manipulated this case against the accused.

41. It is from this point of view that the improvements in the statement of PW1 are to be seen. He deposed before the court that accused were beating the deceased Ankit with legs and fist blows whereas in his previous statement the word in vernacular was "Hatha Pai" which is nothing but scuffle. The scuffle naturally is from both the sides whereas beating by legs and fist blows was one sided only. I failed to understand as to from what point of view the Ld. Counsels for the victims have submitted that there was no difference between scuffle and one sided blows. Further, he deposed before the court that he asked the accused as to why they were beating the deceased but it was not found recorded in his previous statement Ex.PW1/A. By the said improvements before the court, now the witness has tried to give the version that he tried to intervene in the matter by asking as to why the deceased was being beaten by the accused whereas case of PW1, in his previous statement Ex.PW1/A, is that even the accused pounced at him also due to which he rushed away from the said spot out of fear. Similarly, he deposed before the court that accused also abused him whereas in his previous statement Ex.PW1/A, it is mentioned that accused wanted to teach him also a lesson. Further, the fact that he gave a phone call to Vijay from STD booth on his scooter but in his SC No.10/11 Page 53/80 previous statement Ex.PW1/A the facts of STD booth and scooter were found missing for the obvious reason that a person who was making a call from the STD booth and was under fear and in perplexed condition, could have informed the police at number 100 with regard to the said incident and if he would have disclosed this fact of using STD booth for phone before the police, naturally IO would have asked him this question as to why he did not make the phone call to the police from the said STD booth. Similarly, in the deposition of PW6, the fact that Surender met him near the STD booth was not found mentioned in his previous statement Ex.PW6/DX. He had not stated to the police that villagers had got compromised the matter between the family of Chottey Lal and Pradeep and thus, this fact he deposed before the court for the first time. In the same manner, PW14 Sanjay did not state before the police in his statement that there was previous dispute between the family of Chottey Lal and family of Ankit over the issue of water in the field. He has also not stated to the police in his statement dated 17.12.2006 that prior to the incident, accused Anney @ Anand threatened his brother Ashok over the issue of water and same facts were also not told by him to the police in his second statement dated 23.02.2007 also and thus, the said facts were deposed by him for the first time before the court. Thus, the said facts deposed for the first time by the said witnesses were either directed to give justification SC No.10/11 Page 54/80 of their being present at the spot or the possibility of the said facts deposed before the court for the first time may be a concealment of the manipulation and concoction of the present case against the accused. I am supported in my said conclusion by the judgment of the Hon'ble Supreme Court in case titled Mohd. Iqbal M. Shaikh and others Vs. State of Maharashtra reported as 1998 (2) CC Cases (SC) paged 58 wherein it was held that merely because a witness was examined after a considerable period from date of occurrence, his evidence need not be discarded on that ground alone and that while testing credibility and assessing intrinsic worth of such witnesses, delay in their examination by the police has to be borne in mind and their evidence requires a stricter scrutiny before being accepted and that the test is applied to consider value of their evidence. Inherent improbabilities in statements of witnesses in court and contradictions and omissions witness had made in his statement recorded by police, no part of his evidence can be relied upon and he is an unreliable witness and that PW10's evidence bristles with inconsistencies and improbabilities and has contradicted from his statement made to the police which makes him thoroughly unreliable and no reliance can be placed on testimony of such witness and that when all eye witnesses suffer from same infirmities, question of one corroborating the other would not arise. SC No.10/11 Page 55/80

42. Moreover, the deposition of PW1, PW6 and PW14 is full of concealments, which they not only made from the police but from the court also. These can be divided into the categories about the said facts of previous enmity, the close relationship of the witnesses and not informing regarding the incident to anyone including the father of the deceased and stopping the fair investigation to be conducted by the IO, if the said concealed facts would not have been concealed.

43. Further, the conduct of the said three witnesses is undoubtedly against the ordinary human nature in view of said concealments of previous enmity, their close relationship among themselves and not informing to anyone including the police immediately after the alleged incident and as such, the version deposed by PW1 becomes highly improbable and unbelievable coupled with other circumstances of the case.

44. Further, three documents have categorically uprooted the story told to the court by PW1 that he saw accused persons giving beatings to the deceased and throwing him on the naked wire charged with electric current resulting into his death. First is the document Ex.PW8/A which is a PCR form whereby information of the incident was given by phone no. 9899740081 by the father of deceased PW3 Pradeep r/o H.No.55, Village Lampur, Delhi on SC No.10/11 Page 56/80 17.12.2006 at 9.10 a.m. and the information was that at the spot one person was dead after receiving the electric current and on that issue there was a quarrel and at the spot there was a crowd of 100­125 persons and at 9.30 a.m., the official of the concerned PCR van responded to the PCR that one Anand s/o Chottey Lal r/o H.No.55, Lampur, Delhi, had tied an iron wire around his field and in order to save the field from Neel Gai (a species of deer), the electric current was charged in the said wire and in the night, one Ankit son of Pradeep, aged 18 years had gone to field for irrigating the same and he touched with the wire and died at the spot and that said Anand had covered the dead body by the woods in the said field of flowers and family members of the Ankit had beaten the said Anand and the said injured was being taken to the hospital. It was again responded from the said PCR van t o the Control Room at 10 a.m that SHO, Narela, with staff was present at the spot and there was no crowd now at the spot and some family members of the deceased are with the dead body. From this document, it is clear that deceased was at the spot and naturally the injured was the accused Anand, who was taken to the hospital. Second remarkable thing about the Ex.PW8/A is that it was recorded in present continuous tense giving no chance for the person communicating the informations to the Control Room and to the person recording the same in the said form as developments with regard to the said information and were SC No.10/11 Page 57/80 spontaneous in utterance without any room for pre­mediation or afterthought. The said document unquestionably establishes that it was a case where the deceased came in touch with the electrically charged naked wire and died. It further established beyond doubt that the field was in the control and possession of accused Anand, who had put the said electrically charged wire around the field for the said purpose.

45. Next document is Ex.PW22/A which is the inspection report by the crime team and wherein, in the 8th column of "Modus Operandi" it is mentioned that death due to receiving electric current and it is further mentioned that in the field of roses, the iron wire was being fenced round the said field and beyond one field from the said field of rose, the electric current was taken by the help of a hook made of cable and by the side of field of Chottey Lal there was field of Pradeep s/o Baljeet which was being irrigated having crop of wheat and Ankit had gone to check his field and irrigating the same and when he reached in between the field, an accident had taken place by receiving current and thereafter the dead body was dragged to the field of roses and an attempt was made to cause disappearance of evidence and to conceal the dead body. The crime team remained at the spot between 11.15 a.m to 12.15 p.m and the said eye witness PW1 admittedly remained at the spot from 9 a.m to 1 p.m, as per his cross examination, and he signed the first document around 10 or SC No.10/11 Page 58/80 10.30 a.m. at the spot itself and the FIR was sent, as per rukka Ex.PW1/A, at about 10.40 a.m. although there is an overwriting in the digits "10.40 a.m." and the said document completely wipes out the deposition of PW1 as an eye witness that these were the accused who had given the beatings and had thrown the deceased on the wire electrically charged.

46. Third document is the report of the officer of Electric Company NDPL, Ex.PW4/A dated 27.02.2007, wherein it is clearly mentioned that a message was received at the office of said company from PS Narela regarding accident occurred near tube well of Chottey Lal at Village Lampur. Thus, a report of accident was received and not regarding any murder, as deposed by PW1.

47. As per cross examination of the said Assistant Engineer of the said electric company, he visited the spot on 17.12.2006 at about 10.45/11 a.m. and remained there for 45 minutes, but even then the PW1 did not disclose the true facts to the said AE of the said electrical company although he claimed to be present at the spot at that time.

48. Similarly, another Electrical Engineer of the said company NDPL, PW13 Shanker Patel deposed that when they visited the spot there was fencing of naked GI wire around the said field and four electric bulbs were illegally installed on wooden boards inside the SC No.10/11 Page 59/80 said field and one side of the fencing wire was lying beneath the NDPL LV main and it appeared that that wire was detached from LV main after the incident and if the said wire would not have been detached, it would have been connected with the LV mains and charged with electric current and would have transmitted the electric current in the entire fencing as well as in the electric bulbs. PW1 also did not inform him regarding the actual alleged murder nor PW6 and PW14 did so. It is rightly said under the law that a man may tell a lie but documents do not. This was an accident and not a murder and probably for this reason no other independent person of the village was made a witness in the case naturally for the reason that the villagers would not have supported the case of murder and admittedly the villagers were present soon after the incident, some of whom allegedly gave beatings to accused Anand also at the spot and their presence is also mentioned in Ex.PW8/A, the PCR form. For the same reasons, the deposition of PW16 Devender Kumar is not reliable qua the factum of murder, who was admittedly the brother of PW1 although he admitted the defence version that in one room constructed in the field of Pradeep, the father of the deceased, one Daya Nand @ Pappu @ Langra s/o Joge Ram r/o Mandora, District Sonepat, was staying there as he has purchased the guava fields from Vijay Kumar s/o Raj Kumar, who was son of his uncle and the distance between the said room and the place where the dead SC No.10/11 Page 60/80 body of Ankit was lying was about 200/250 feet and said Daya Nand @ Langra used to watch his guava trees and he used to stay during the night in the said room and he further admitted that said Daya Nand @ Langra was not residing presently in the said room but stayed in the said room even after the incident but he had not seen Daya Nand @ Langra on the day of incident at the spot and he could not give any reason as to why Daya Nand @ Pappu had left the said room, and deposition of PW18 Ashok Kumar and PW19 Ram Kishore, who are cousin brothers, who have otherwise admitted the enmity between the said two parties and they are also the cousin brothers of PW1 and PW18 is the real brother of PW14 Sanjay and further he could not prove his alleged complaints Mark X and Y against accused Anand given to the concerned PS nor the IO PW26 could establish the originals of the same on the record.

49. PW25 Ct. Sunil, who removed the dead body from the spot to the mortuary of the hospital on 17.12.2006, admitted in his cross examination that there were about 70/80 persons present and on the right side of dead body of deceased towards Haryana there was a tube well at a distance of about 500 meters and while they reached there, the father of deceased was not present but was called by the senior officials from his house. He further replied that during his stay at the spot, no eye witness came forward who could tell anything about the occurrence and he removed the dead body at SC No.10/11 Page 61/80 about 1 p.m. and thus, he has sharply contradicted the deposition of PW1 that he remained at the spot between 9 a.m to 1 p.m and he allegedly made his statement by the time the rukka was sent at 10.40 a.m for the registration of FIR, which was prepared on his statement. He further answered that when he was leaving with dead body at 1 p.m, the crime team arrived at the spot at that time. By his said answers that no eye witness came forward to tell about the incident and crime team arrived at 1 p.m, the defence of the accused that FIR and crime team report were ante timed, becomes highly probable also.

50. In the said circumstances, the deposition of the sole eye witness PW1 Surender Kumar is not at all worth any credit to be given to it and is totally unreliable and what to talk of its corroboration from the deposition of the said other public and official witnesses or by the said documents proved on record and it would be wholly unsafe to record the guilt of the accused for the offence u/s 302 IPC.

51. The Ld. Addl. PP has argued that case may be looked from the point of view of Section 304A IPC. I have studied the point myself but there are difference of opinion of the various Hon'ble High Courts of India as to whether in a case charged u/s 302 IPC, a conviction u/s 304A IPC can be recorded or not. There are opinions SC No.10/11 Page 62/80 that the said conviction u/s 304A IPC in the said circumstances can be recorded and there is another view that since the two offences are not of the same species and more so, a prejudice may be caused to the accused as during the whole trial he was defending the case u/s 302 IPC but not from the point of view of Section 304A IPC which requires totally different grounds for his defence. Although it seems that there is no legal bar in recording the conviction u/s 304A IPC in a case charged u/s 302 IPC, but in the facts and circumstances of the case, as established on record by the said evidence, I am not inclined to accept that this is a case u/s 304A IPC because of the very language used by the legislature in the said Section, as reproduced below:

"304­A. Causing death by negligence - Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extent to two years, or with fine, or with both."

52. A bare reading of the said provision of law go to show that acts which may amount to culpable homicide cannot be termed as rash and negligent act. If an act is willfully done or an offence itself or legal consequences of the act can be presumed within the "knowledge" of the person doing the act, then the said acts cannot be termed as mere rashness or negligence, though extreme negligence in the circumstances may be taken as "presumed knowledge of the SC No.10/11 Page 63/80 person". I am fortified in my said view by a judgment of the Hon'ble Supreme Court titled State of Gujarat Vs. Haidar Ali Kalu Bhai reported as AIR 1976 SC 1012 wherein it was held as under:

"Section 304A craves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide u/s 299 IPC or murder u/s 300 IPC. If a person willfully drives a motor vehicle into the middest of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Each case will, therefore, depend upon the particular facts established against the accused."

It was further held as under:

"Section 304A by its own definition totally excludes the ingredients of Section 299 or 300 IPC. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a person's death are ingredients of the offence of culpable homicide. When intent or knowledge as described above is the direct motivating force of the act complained of, Section 304A has to make room for the graver and more serious charge of culpable homicide."

53. Similarly, Hon'ble Allahabad High Court in case titled Ballan Vs. State reported as AIR 1955 Allahabad 626 held as follows:

"If a man intentionally commits such an offence, and consequences beyond his purpose result, it is for the Court to determine how far he can be held to have the knowledge that he was likely by such act to cause the actual result. If such knowledge can be imputed, the result is not to be attributed to mere rashness; if it cannot be SC No.10/11 Page 64/80 imputed, still the wilful offence does not take the character of rashness, because its consequences have been unfortunate. Acts which are offences in themselves must be judged with regard to the knowledge, or means of knowledge of the offender, and placed in their appropriate place in the class of offences of the same character."

54. In the present case, the facts which have been established on record beyond reasonable doubt are that a fencing of electrically charged wire was put at the said field where the incident occurred. Even this has been admitted by the said PW1, who has not been relied by me qua the aspect of murder, as mentioned above, that the field where the incident took place belonged to accused Anand and he had planted rose plants in it. He even admitted that there was wheat crop in the adjoining field belonging to the father of the deceased namely Pradeep, which was being irrigated at the relevant time. Even the father of the deceased, PW3, specifically answered that the place where the dead body of his son was lying comes in the share of accused Anand and it was the said accused Anand, who had planted the rose plants, although he alleged that electric current was put by all the accused in the said wire around the said field. Similarly, PW14 Sanjay Kumar, also alleged against all the accused that they had put the said fence of the wire electrically charged. Again PW16 Devender Kumar has another story to tell that all the three accused were doing agricultural work in the said field of roses who used to tie naked electric wire around all the sides of the said SC No.10/11 Page 65/80 field of rose and many village people advised the accused not to put current in the naked electric wire fixed around the field as some incident can happen but they did not understand. However, in his cross examination, he has specifically admitted that portion of land on which the dead body of Ankit was lying falls in the share of accused Anand @ Anney by mutual partition among all the accused. He further answered that he or any other person had never complained about the affixing of naked electric wire around the field of accused nor he called the police by dialing phone number 100 with regard to said fixing of electric wire around the said field. He admitted that owners of the various fields used to put wires around their field to save the crop from animals including wild cow but the said wires were not live with electric current. The said document Ex.PW8/A goes to show that it was accused Anand who has put the said fencing of electric wire. Even the initial IO PW12 SI Mahender Singh also deposed that it was accused Anand who was cultivating the field. Thus, it was the accused Anand against whom the evidence is coming forth being the exclusive possessor of the said field of roses and the other two accused cannot be presumed with the common intention in putting the said wire u/s 34 IPC. The persons may be having a similar intention but the same cannot be termed as "common intention" under the law. Even their presence at the spot at the time of incident is doubtful in view of the fact that the SC No.10/11 Page 66/80 deposition of PW1, PW6 and PW14 in this regard has already been discarded by me but the presence of accused Anand at the spot and his apprehension soon after the incident has been proved beyond reasonable doubt and as such, the putting of the said fence of electrically charged wire at the time of incident can exclusively be imputed upon him only.

55. Even this position has been admitted by accused Anand himself in his statement u/s 313 Cr.PC which provides that the answers given by accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into or trial for, any other offence which such answers may tend to show he has committed. But the statement u/s 313 Cr.PC cannot be read against the co­accused because it is not "evidence" under the law and secondly, the other accused were not given any opportunity to cross examine the accused making the admissions of facts in his said statement. I draw support from two judgments of the Hon'ble Superior Courts in this regard. First is the judgment of the Hon'ble Supreme Court titled Narain Swami Vs. State of Maharashtra reported as AIR 1968 SC 609 wherein it was held that the statement of one accused recorded u/s 313 Cr.PC could not be used as evidence against the co accused/appellant, who, had no opportunity to cross examine the said accused making the statement SC No.10/11 Page 67/80 and second is the judgment of the Hon'ble Himachal Pradesh High Court titled Raj Paul Vs. State of HP reported as 1985 Crl. L.J. page 1501, wherein it was held that a statement of the accused u/s 313 Cr.PC is always recorded without Oath and the co accused can have no opportunity to cross examine him and that therefore, a statement of the accused recorded u/s 313 Cr.PC cannot be used as evidence against the co accused.

56. I am conscious of the law that statement u/s 313 Cr.PC cannot form the sole basis of conviction but its effect can be considered in the light of other evidence brought on record. In support of this proposition, reference may be made of judgment of Hon'ble Supreme Court in the case titled Bishnu Prasad Sinha Vs. State of Assam reported as AIR 1007 SC 848. Again Hon'ble Supreme Court was dealing the issue of an accused who admitted incriminating circumstances appearing in evidence against him and it was held by the Hon'ble Apex Court that it cannot be ignored merely on ground that such admissions were advanced as a defence strategy. Reference is of the case titled State of UP Vs. Lakhmi reported as AIR 1998 SC 1007.

57. It is necessary here to reproduce the answer of accused Anand recorded u/s 313 Cr.PC which is as under:

SC No.10/11 Page 68/80

" Q. Have you anything else to say?

Ans. I am innocent and falsely implicated in the present case. The agricultural land of Khasra no.15 in Village Lampur is in the name of my father namely Chotey Lal. However, due to mutual partition between the brothers, the said agricultural land is being possessed and cultivated by me and I had cultivated the rose crop thereupon. In our village, usually the Saini community cultivate the crop of rose and in order to protect those crops from Neel Gain and other animals, all the villagers used to put electric wire covering the fields of rose. Usually after 10.30 p.m, the electric wire put on the switch on mode and in the morning usually at 5 a.m the said wire put on the switch off mode. I also used to do the same, for that purpose I had instructed one Daya Nand @ Langda s/o Sh. Jodha Ram r/o Mandora, Sonepat, Haryana, who had taken the guava garden on rent in the vicinity and was also residing in the tube well near the said field. In the morning of the fateful day, at about 6.45 a.m or 7 a.m, when I reached to my field, I found that alleged eye witness of this case namely Surender and his associate were beating Daya Nand @ Langda and at that time the deceased was lying on the boundary of my land near the wire being electrocuted. When I inquired from Daya Nand as to what happened, he replied that he had awaken late that day and when he wake up, he saw that deceased was going towards the wire in order to reach his field via my agricultural land and Daya Nand raised noise towards the deceased not to go towards the wire as there was a current in the same but the deceased could not hear the same and inadvertently came in contact with electric wire and fell down. Daya Nand @ Langda further told that in the meantime Surender Kumar and his brother came there and started beating him by saying that deceased got electric current due to his negligence and started giving beatings to him. I tried to intervene the same but I was also given beatings by Surender and his brother by saying that I was also responsible and due to my negligence the accident had taken place.

SC No.10/11 Page 69/80

Thereafter, Surender made a telephone call to the police and called some of his associates who hold me and kept on giving beatings to me but Surender and his brother took the dead body inside the field by dragging the same. Thereafter police came and Surender and his associates made a false statement against me and my brothers. However, my brothers were not present there at that time. In the meantime, Daya Nand was threatened not to come again on the garden as well as to the tube well and he was made to run away from the spot. I told the aforesaid version to the police officials but they did not pay any heed in this regard and falsely implicated me and my brothers in the present case at the instance of Surender and his brothers."

58. The said answer recorded u/s 313 Cr.PC is fully corroborated not only from the deposition of said witnesses namely PW12 SI Mahender Singh, NDPL officials PW4, PW13 and IO PW26, but from the said documents also Ex.PW8/A, Ex.PW22/A, Ex.PW4/A and the autopsy report Ex.PW2/A and thus, can be acted upon against him.

59. Let me now turn to the law laid down with regard to such acts of putting naked live wire in such a manner that any person's life may come into danger whereby the act was treated as "with the presumed knowledge of the accused" and result of causing death of a person amounts to "culpable homicide not amounting to murder". First is the illustration (a) to Section 299 IPC, which reads as under:

"A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge, that death is likely to be SC No.10/11 Page 70/80 thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide."

60. Second law has been laid down by Hon'ble Madras High Court in an almost identical case in facts titled Rani Vs. The State and others reported as 1987 Crl. L.J. 1817 wherein the accused connected iron fence around paddy field with main electric supply in order to hunt wild boars and owner of field warning accused about possibility of untoward incident due to electric connection and there was a death of person out of electric shock and it was held that it was a case where knowledge was involved and hence, offence was punishable u/s 304 and not u/s 304A IPC. It was further held that even though the investigation officer, in this case, made a final report that an offence u/s 304A appeared to have been committed, the trial court should have adverted its mind to the facts of the case and exercising its power judicially u/s 204 Cr.PC, committed the accused to the court of Sessions u/s 209 Cr.PC and the duty of framing proper charge rests entirely on the Magistrate and that he should not blindly accept the conclusion of the investigation officer in the final report. Thus, accepting the revision petition of the wife of the deceased, the order of the acquittal u/s 304A IPC was set aside and the matter was sent back to the Magistrate with a direction to commit the accused to the Sessions court and in the said revision SC No.10/11 Page 71/80 petition also, the Hon'ble High Court relied upon illustration (a) of Section 299 IPC.

61. Similarly, in a case decided by the Hon'ble Kerala High Court titled Maniyan Vs. State of Kerala reported as 1990 Crl. L.J. 2515 where the accused added poison to toddy in pot on coconut tree and the deceased stealthily consuming toddy from pot and died subsequently and again relying upon the illustration (a) appended to Section 299 IPC, it was held that offence was not u/s 304A IPC because the accused added poison to the toddy without caring for the possible consequence of the potential victims of his negligence and want of care and thus, the offence would come within the purview of Section 304 part II of IPC.

62. A contention comes to judicial mind that the deceased was a trespasser and the accused Anand was having no responsibility towards him. But this argument was repelled by the Hon'ble Supreme Court in similar facts where a lady died after receiving electric shock by a live naked wire which the accused has fixed across the passage leading up to his latrine giving no warning that the wire was live and deceased managed to pass into the latrine without contacting the wire but when coming out, her hand happened to touch it due to which she received electric shock. The Hon'ble Apex Court in case titled Cherubin Gregory Vs. The State SC No.10/11 Page 72/80 of Bihar reported as AIR 1964 SC 205, while dealing with said argument, held as under:

"There is no substance in this line of argument. In the first place, where we have a Code like the Indian Penal Code which defines with particularity the ingredients of a crime and the defences open to an accused charged with any of the offences there set out we consider that it would not be proper or justifiable to permit the invocation of some Common Law principle outside that Code for the purpose of treating what on the words of the statute is a crime into a permissible or other than unlawful act. But that apart, learned Counsel is also not right in his submission that the act of the accused as a result of which the deceased suffered injuries resulting in her death was not an actionable wrong. A trespasser is not an outlaw, a Caput lupinem. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal in­ jury by direct violence and the same principle would govern the infliction of injury by indirectly doing some­ thing on the land the effect of which he must know was likely to cause serious injury to the trespasser. Thus in England it has been held that one who sets springguns to shoot at trespassers is guilty of a tort and that the person injured is entitled to recover. The laying of such a trap, and there is little difference between the spring­gun which was the trap with which the English Courts had to deal and the naked live wire in the present case, is in truth "an arrangement to shoot a man without personally firing a shot". It is, no doubt true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do willfully acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespassers. As we pointed out earlier, the voltage of the current fed into the wire precludes any SC No.10/11 Page 73/80 contention that it was merely a reasonable precaution for the protection of private property. The position as to the obligation of occupiers towards trespassers has been neatly summarised by the Law Reform Committee of the United Kingdom in the following words: "The trespasser enters entirely at his own risk, but the occupier must not set traps designed to do him bodily harm or to do any act calculated to do bodily harm to the trespasser whom he knows to be or who to his knowledge is likely to be on his premises. For example, he must not set man­traps or spring guns.

This is no more than ordinary civilised behaviour." judged in the light of these tests, it is clear that the point urged is wholly without merit."

63. The said judgment also gives answer to the defence of accused Anand that said Dayanand @ Langra gave warning to the deceased against the risk but deceased did not hear the same and it also repelled the defence version that accused Anand cannot escape liability by shifting the same on said Dayanand @ Langra.

64. In the said circumstances, I am also of the considered opinion that the act of accused Anand by fencing the electrically charged wire around the field with which the body of the deceased touched who received electric current and died, was certainly with full knowledge that such an act may cause death of any person and potentially dangerous to the life of other persons and thus, his case is also covered u/s 304 part II of IPC.

65. To conclude, all the accused are acquitted of the charge u/s SC No.10/11 Page 74/80 302/34 IPC and the accused Anand @ Anney is convicted and held guilty u/s 304 part II of the IPC for the offence of culpable homicide not amounting to murder. The PB and SB of accused Chander Mohan @ Mannu and accused Azad are hereby discharged. (Announced in the open court on 31.03.2012) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.10/11 Page 75/80 IN THE COURT OF SH. RAKESH TEWARI ASJ­VI(OUTER), ROHINI COURTS, DELHI SC NO.10/11 FIR NO. 820/06 U/S 302/34 IPC PS Narela Unique Case ID No. : 02404R0241382009 State Vs.

1. Chander Mohan @ Mannu s/o Chhotey Lal r/o 69, Village Lampur, Narela, Delhi.

2. Anand @ Anney s/o Chhotey Lal r/o 69, Village Lampur, Narela, Delhi.

3. Azad Singh s/o Chhotey Lal r/o 69, Village Lampur, Narela, Delhi.

ORDER ON THE POINT OF SENTENCE

               Present:    Ld. Addl. PP on behalf of the State.

Sh. Pradeep Rana, Ld. Counsel for the convict Anand @ Anney.

1. Heard on the point of sentence. It is submitted on behalf of the convict that since the day of FIR till he was granted interim bail, he has already undergone a period of five years in JC and never SC No.10/11 Page 76/80 availed any concession of any kind for his release from the custody. It is further submitted that accused is 46 years of age, having no other source of income except the agricultural work carried out by him to support his family which include two minor children of 8 and 9 years respectively. It is further submitted that he is first offender and not an offender having the trappings of a hardened criminal. It has been further submitted that it is the acceptance of his act in putting the naked live wire with electric current that is to be taken as a mitigating circumstance of the case and it has been prayed that he may be sentenced to undergo only for the period of imprisonment which he has already undergone.

2. On the other hand, Ld. Addl. PP has submitted that the punishment should be of a deterrent effect so that no person can dare to put the lives of the other persons at risk at the cost of his earnings or churning the profit. It has been further submitted on behalf of the State that ignorance of law is no excuse and consequences are admittedly fatal in the present case taking the life of a person full of youth, who was about 18 years of age when his life was shut down by the act of the accused.

3. Though on both the sides it has not been submitted as to whether the benefit of Section 360 Cr.PC by granting probation to the accused can be extended to him or not, but it is the incumbent SC No.10/11 Page 77/80 duty upon every court convicting a person especially for the first offence and not a previous convict to consider this aspect. Needless to repeat the law that grant of probation is dependent upon the nature of the act or circumstances in which the offence was committed. I am mindful of a judgment wherein a mother gave a blow with a hard danda at the head of her daughter, who fell unconscious and in order to pretend that the deceased committed suicide, she was hanged by a beam and it was in the evidence that the said mother accused was not having a single tear in her eye while taking the dead body for the cremation and helplessness before the court was that there was no postmortem examination certificate available in order to ascertain the exact cause of death but still the said mother was held liable u/s 304­II IPC and the Ld. Trial Court granted the probation to the mother but the Hon'ble High Court reversed the said order and withdrew the probation granted to the mother. The reference is Public Prosecutor Vs. Madathi reported as AIR (29) 1942 Madras 415 (2) wherein it was held by Hon'ble Mr. Justice Horwill that in the absence of a postmortem certificate, it was not easy to say that the accused must have had the requisite knowledge and intention for a conviction u/s 302. Under the circumstances of the case there was no reason to think that accused did not die immediately and the accused therefore committed at least an offence punishable u/s 304 IPC. It was further held that the conduct of the accused seems to me SC No.10/11 Page 78/80 as unnatural and unmotherly as it was savage.

4. Although the words used by the Hon'ble Madras High Court were qua a lady, but I am also of the considered opinion that in every person, an instinct of "mother" is sitting and in that sense act of the accused Anand was also unmotherly.

5. Similarly, the Hon'ble High Court of Delhi, who was dealing with a case u/s 304A IPC, titled Rajpal Vs. State reported as 1992 Crl. L.J. 1470, it was held that accident resulting in loss of two lives and grievous injury to third and the convict was driving a bus on a wrong side of the road in an area known for heavy traffic, in such circumstances, the benefit of probation cannot just be granted.

6. From all the point of views, in my considered opinion that act of the accused Anand for the said reasons is not covered within the requirements of Section 360 Cr.PC for grant of probation.

7. Coming to the aspect of awarding of sentence. I have already held in the judgment that if the act of putting the naked wires round the field where the deceased died is to be seen from the point of view of prosecution witnesses, there was a great material contradiction going to the root of the matter and if the prosecution witnesses are to be considered on this aspect, probably the case would not have been proved "beyond reasonable doubt". It is but SC No.10/11 Page 79/80 for the acceptance of the convict Anand in his statement u/s 313 Cr.PC coupled with the corroboration from the documents proved on record by the prosecution, that the factum of his act resulting into the death of the deceased has been established on record beyond reasonable doubt and this admission on the part of accused Anand certainly demonstrates his repentance for the act, but at the same time, looking at it from the point of view of the interest of the society, any unnecessary leniency would amount to and would send a message that this court has given the convict and such other persons committing such acts, a license to kill the general public.

8. In view of my said discussion, a balance has to be maintained between the interest of the society and repentance of the accused. In the circumstances, the convict is sentenced to undergo SI for a period of seven years with a fine of Rs.50,000/­ for the offence u/s 304 II of the IPC and in default of payment of fine of Rs.50,000/­ he has further to undergo SI for a period of one year. The benefit of section 428 Cr.PC is given to the convict. A copy of the order as well as order convicting the convict be given free of cost to the convict forthwith. The file be consigned to the Record Room. (Announced in the open court on 31.03.2012) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.10/11 Page 80/80