Delhi District Court
State vs (1) Gopal Singh on 30 January, 2018
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE (PILOT COURT)
WEST: TIS HAZARI COURTS: DELHI
SC No.58248/2016
FIR No. 246/2016
U/s. 302/34 IPC
P.S Maya Puri
In the matter of :
State
versus
(1) Gopal Singh
S/o Shri Ram Avtar
R/o H.No. C-67, IIIrd Floor,
Phase-II, Maya Puri, Delhi.
(2) Geeta
W/o Late Dhirender Singh
R/o H.No. C-67, IIIrd Floor
Phase-II, Maya Puri, Delhi.
Date of Institution : 28-11-2016
Date of reserving Judgment : 10-01-2018
Date of pronouncement : 30-01-2018
Appearances
For the State : Ms. Reeta Sharma,
Additional Public Prosecutor.
Sessions Case No.58248/2016 Page 1/59
For the Accused : Shri Rajeev Mittal, Advocate,
The Amicus Curiae
JUDGMENT
1. Accused persons namely Gopal Singh son of Shri Ram Avtar, aged about 25 years and Geeta wife of late Dhirender Singh, aged about 30 years, were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) i.e Charge-sheet, submitted on 07-11- 2016 upon conclusion of investigation into First Information Report (FIR) No. 246/2016 of police station (PS) Maya Puri for the offence punishable under Section 302/34 of the Indian Penal Code, 1860 (IPC).
Prosecution Version
2. Prosecution case, in brief, is that consequent upon some matrimonial dispute accused Geeta, with both of her girl child, was residing in her parental house for the last one year. On the day of incident, her husband Dhirender Singh (deceased) came to the house of his in-laws. A quarrel ensued during which accused Geeta and her brother Gopal gave beatings to Dhirender Singh and sat over him Sessions Case No.58248/2016 Page 2/59 after making him fall on the floor. Both the accused persons pressed the body of Dhirender Singh which resulted in his death.
3. As per the charge-sheet, on 08.08.2016, around 11.30 p.m., on receipt of DD No.28A regarding quarrel, Assistant Sub Inspector (ASI) Dineshan K. alongwith Constable Sudhir reached at building bearing no. C-67, IIIrd Floor,Mayapuri, Phase-II, where the PCR caller namely Geeta met them. They found one male person lying unconscious on the floor. Geeta stated that the said person lying on the floor namely Dhirender Singh son of Sanjeevan Singh was her husband. She also pointed out towards a boy namely Gopal son of Ram Avtar who was her brother. She stated that a quarrel took place between her husband and brother in which her husband sustained injuries. She tried to intervene in the quarrel. The injured was taken to DDU hospital where the examining doctor declared him brought dead vide MLC No.7147/2016. Both injured Gopal and Geeta were also medically examined at DDU hospital vide MLC No. 7202/2016 and MLC No.7091/16 respectively. Thereafter, both Gopal and Geeta Sessions Case No.58248/2016 Page 3/59 slipped away from the hospital. ASI Dineshan K. made rukka on the basis of DD No.28A and sent the same through constable Sudhir Kumar to police station Maya Puri for registration of the FIR under Section 302 IPC. ASI Dineshan K. also informed SHO/Inspector Suraj Bhan Singh. ASI Dineshan K. returned back to the spot where Inspector Suraj Bhan, Investigating Officer (I.O), met him. I.O called the mobile crime team which inspected the place of occurrence and took photographs from different angles. I.O also collected exhibits i.e blood stained earth control, earth control, broken red colour bangles, bedsheet, torn shirt and sealed them in a pullanda with the seal of SBS. Efforts were made to search for accused persons namely Gopal and Geeta. The family members of Dhirender Singh (deceased) were also informed. I.O got postmortem examination conducted on the dead body of the deceased and handed over the same to the relatives after identification. The examining doctor handed over the blood samples of the deceased which were seized by the I.O. Later, I.O arrested both the accused persons namely Gopal and Geeta and recorded their separate Sessions Case No.58248/2016 Page 4/59 disclosure statements wherein they admitted their guilt. During the investigation, I.O got the counselling conducted of eye-witness baby girl Sona @ Shivani under order of the court and got her statement recorded under Section 164 Cr.P.C. Meanwhile,I.O/Inspector Suraj Bhan was transferred and further investigation was assigned to IO/Inspector Raj Kumar who sent the exhibits to FSL and collected FSL result
4. After concluding the investigation, I.O came to a conclusion that sufficient evidence was collected against both the accused persons qua commission of offence under Section 302/34 IPC and thereafter, he prepared charge-sheet and filed in the court on 07-11-2016.
5. On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate (West), Tis Hazari Courts took cognizance of offence under Section 302/34 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 24-11-2016 committed the case to the Court of Session for 28-11-2016.
Charge Sessions Case No.58248/2016 Page 5/59
6. On 12.01.2017, after hearing the learned Additional Public Prosecutor for the State and the learned Amicus Curiae for the accused persons, charge was framed against the accused persons for commission of offence punishable under Section 302/34 IPC. The charge so framed was read over and explained to the accused persons to which they did not plead guilty and claimed trial. Prosecution Evidence
7. To bring home the afore-mentioned charge to the accused, the prosecution got examined Shri Mahesh Singh (PW-1), Shri Sanjay Kumar (PW-2), Dr. V.K. Ranga (PW-3), Dr. Sanjay Rai, CMO (PW-
4), Dr. Pallavi, Senior Resident (PW-5), constable Sudhir (PW-6), Dr. Bhavna Saxena (PW-7), ASI Ram Chander (PW-8), Dr. Ajeet Kumar, Junior Resident (PW-9), constable Sudhir (PW-10), constable Rakesh Kumar (PW-11), ASI Suresh Kumar (PW-12), Woman constable Komal (PW-
13), ASI Dineshan K. (PW-14) , Inspector Raj Kumar (PW-15) and ACP Suraj Bhan Singh (PW-
16).
Documentary Evidence Sessions Case No.58248/2016 Page 6/59
8. The prosecution also relied on following documents tendered into evidence i.e Dead body identification statement (Ex.PW-1/A), Photographs (Ex.PW-2/A1 to Ex.PW-2/A28), postmortem examination report (Ex.PW-3/A), Request for postmortem examination (PW-3/B) collectively, MLC of accused Gopal Singh (Ex.PW-4/A), MLC of the deceased (PW-4/B), MLC of accused Geeta (Ex.PW-4/C), Arrest memo of accused Gopal Singh (Ex.PW-8/A), Disclosure statement of accused Gopal Singh (Ex.PW-8/B), Arrest memo of accused Geeta (Ex.PW-8/C), Disclosure statement of accused Geeta (Ex.PW-8/D), Seizure memo of mobile phone make Samsung (Ex.PW-8/E), Carbon copy of order of Child Welfare Committee (CWC) dated 8.9.2016 (Ex.PW-12/A), Report of Manas Foundation (Ex.PW-12/B), Application for recording statement under Section 164 Cr.P.C (Ex.PW-12/C), Application for providing copy of statement under Section 164 Cr.P.C (Ex.PW-12/D), Seizure memo of blood stained earth control (PW- 14/A), Seizure memo of earth control (PW-14/B), Seizure memo of broken bangles (PW-14/C), Seizure memo of bed sheet (Ex.PW-14/D), Seizure Sessions Case No.58248/2016 Page 7/59 memo of Shirt (Ex.PW-14/E), Seizure memo of articles recovered from the personal search of accused persons ( Ex.PW-14/F), Seizure memo of pullanda of blood sample of deceased (Ex.PW- 14/G), personal search of accused Gopal Singh (Ex.PW-14/H), Pointing out memo prepared at the instance of accused Gopal Singh (Ex.PW-14-I), Pointing out memo prepared at the instance of accused Geeta (Ex.PW-14/J), Seizure memo of pullanda of blood sample of accused Gopal Singh (Ex.PW-14/K), Seizure memo of pullanda of blood sample of accused Geeta (Ex.PW-14/L), Seizure memo of pullanda of clothes of the deceased (Ex.PW14/M), Site plan without scale (Ex.PW- 16/A) and personal search memo of accused Geeta (Ex.PW-16/B).
9. During the course of trial, learned Amicus Curiae for the accused persons made statements under Section 294 Cr.P.C thereby admitting the genuineness of documents i.e scaled site plan (Ex.PX-1), DD Entry No.28A dated 8.8.2016 (Ex.PX-2), DD Entry No.7B, dated 9.8.2016 (Ex.PX-3), DD Entry Nos. 3A,5A,6A,7A, all dated 9.8.2017 (Ex.PX-4) collectively, FIR and Sessions Case No.58248/2016 Page 8/59 Certificate under Section 65-B of the Indian Evidence Act (PX-5) collectively, Customer Application Form (CAF) of accused Geeta, Call Detail Record (CDR) and Certificate under Section 65-B of the Indian Evidence Act (PX-6) collectively, Certificate under Section 65-B of the Indian Evidence Act in respect of PCR Form (Ex.PX-7) collectively, Crime Team Report (Ex.PX-8), photograph taken by the crime team (Ex.PX-9) collectively, Road Certificate (RC) No.56/21/2016 (Ex.PX-10), MLC of blood sample of accused Gopal Singh (PX-11), MLC of blood sample of accused Geeta (Ex.PX-12) and proceedings under Section 164 Cr.P.C (Ex.PX-13) pertaining to baby girl Sona @ Shivani Accordingly, prosecution witnesses namely (1) ASI Om Prakash, (2) Duty Officer, HC Sunil Kumar, (3) HC/DO Hari Charan, (4) SI Kalyan Singh, (5) Constable Inderjeet, (6)Constable Jagmohan, (7) HC Ravinder, (8) Nodal Officer, Bharti Airtel Ltd., (9)Constable Harinder, (10) SI Devender Kumar, (11) Ms. Anu Aggarwal, Learned Metropolitan Magistrate, Mahila Court, (12) Ahlmad in the court of Ms. Mayuri Singh, Learned Sessions Case No.58248/2016 Page 9/59 Metropolitan Magistrate and (13) Dr. Vipin Kumar Jha of DDU hospital, were dropped from the list of witnesses.
10. During the course of trial, learned Additional Public Prosecutor made statement thereby dropping witness minor girl Sona @ Shivani as all of her statements on record had been admitted by the accused persons.
Statement of Accused
11. After conclusion of prosecution evidence, on 23.11.2017, statements of the accused persons under Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were falsely implicated in the present case.
12. Both the accused persons stated that the deceased had come to their house in drunk position and was already having injuries on his person. The deceased started giving beatings to accused Gopal and in the process, collapsed at the spot. Further, accused Geeta and her mother sustained some injuries in saving accused Gopal from the clutches of deceased. Both the accused further stated that Sessions Case No.58248/2016 Page 10/59 they were taken to hospital alongwith the deceased in Echo car belonging to one Subhash whom accused Geeta had called at the spot to stop the deceased from giving beatings to accused Gopal. Accused persons further stated that they have been falsely implicated at the instance of Mahesh, brother of the deceased, in connivance with the I.O of the case and the statements given by baby girl Sona @ Shivani correctly described the actual incident.
13. Both the accused persons desired to lead evidence in defence and got examined Shri Arvind Singh (DW-1) in their defence.
Final Arguments
14. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State and Shri Rajeev Mittal, learned Amicus Curiae for the accused. I also perused the entire material available on record.
15. During the course of arguments, learned Additional Public Prosecutor submitted that the case of prosecution is based on circumstantial evidence. The offence was committed in the house of the accused persons who were present in the Sessions Case No.58248/2016 Page 11/59 house and therefore, as per Section 106 of the Evidence Act, onus had shifted to the accused persons to explain the circumstances in which the deceased expired, which could not be explained by the accused persons. Further, the testimony of Mahesh Singh (PW-1) establishes the motive for commission of crime, whereas the testimony of Dr.V.K. Ranga( PW-3) indicate that the deceased met a homicidal death. The conduct of the accused persons in escaping from the hospital and evading their arrest is also material fact to be taken into consideration. Further, the defence put forth by the accused persons is not plausible. Learned Prosecutor further submitted that baby Sona cannot be termed as an eye-witness as she had not witnessed the entire quarrel and she might have been tutored prior to giving her statement under Section 164 Cr.P.C The conduct of the accused persons in not making call to the police about the death of the deceased and arranging a vehicle to remove the dead body of the deceased is also material. It is, therefore, submitted that the prosecution has succeeded in establishing that both the accused persons committed murder of the Sessions Case No.58248/2016 Page 12/59 deceased inside their house and accordingly deserve conviction.
16. Per contra, learned Amicus Curiae for the accused persons argued that it was accused Geeta who herself had called the police at 100 number in order to save his brother accused Gopal from the clutches of the deceased who was beating him and during such beating the deceased who was also drunk and having injuries on his person, collapsed on the floor on his own. Further, the accused persons had not absconded from the hospital or their house and fully co-operated in the entire investigation and therefore, there is no mention about any absconding of the accused persons in the rukka. He further argued that the postmortem examination report was not prepared immediately and was manipulated at the instance of the I.O who collected it much later. The postmortem examination report, therefore, is not trustworthy to hold the accused persons responsible for causing death of the deceased as the examining doctor himself deposed about the absence of any manual pressure exerted on the dead body. Further, examining doctor Dr. V.K. Ranga (PW-3) did not Sessions Case No.58248/2016 Page 13/59 conduct the postmortem examination himself and prepared the report to suit the prosecution at the instance of the I.O. Learned Amicus Curiae also argued that the circumstances leading to the death of the deceased have been duly explained by the accused persons in their statements recorded under Section 313 Cr.P.C which also gets corroborated by the statement of baby Sona recorded under Section 164 Cr.P.C. Both the accused persons, therefore, are not responsible, in any manner, for the death of the deceased and deserves accquital.
17. I have given my thoughtful consideration to the submissions of both side.
Statutory Provisions
18. The substantive offence of IPC which both the accused persons have been charged with is referred as under:
302. Punishment for Murder- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
19. The relevant part of Section 300 IPC which defines 'Murder' reads as follows:
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by Sessions Case No.58248/2016 Page 14/59 which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or - Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.
20. Further, the relevant part of Section 299 IPC which defines 'Culpable homicide', having reference in the definition of 'Murder' reads as follows:
299.Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
Points for Determination:
21. In view of the above-mentioned provision of law and the submissions advanced on both sides, following points for determination are emerging in the present case :-
Sessions Case No.58248/2016 Page 15/591. Whether Dhriender Singh son of Ram Sanjeevan Singh R/o Village Roop Sahai Ka Purva, P.S Kotwali Dehat, District Bhind, M.P. died on 8.8.2016 ?
2. Whether a quarrel had taken place between Dhirender Singh (deceased) and the accused persons at their house situated at C-67, IIIrd Floor, Phase-II, Mayapuri, Delhi ?
3. If so, whether the accused persons were responsible for causing injuries to the deceased during such quarrel ?
4. If so, whether such injuries were sufficient to cause death of the deceased in ordinary course of nature ?
Testimonies of prosecution witnesses
22. To prove the afore-mentioned charge against the accused, the prosecution got examined 16 witnesses in all. The testimonies of the prosecution witnesses in sequential order are referred as under :
23. Shri Mahesh Singh Bhaduriya (PW-1) deposed that Dhirender Singh (deceased) was his younger brother. On 8.8.2016, when PW-1 was present in the house of his relative at NOIDA, U.P, he received a telephonic call from the deceased who asked him to visit his house. PW-1 told him (deceased) that he would visit him next day i.e on 09.08.2016. PW-1 further deposed that deceased was perplexed and asked him to visit him Sessions Case No.58248/2016 Page 16/59 immediately telling that he was in the house of his in-laws at Maya Puri. However, the deceased could not tell him exact reason for his perplexity (ghabhrahat). PW-1 tried to contact him but his phone got switched off. PW-1 further stated that on 8.8.2016 at about 3 a.m, he received a call from his elder brother Shri Ramesh from police station who informed him that Dhirender Singh had expired. PW-1 further deposed that in the morning, he went to police station Maya Puri. PW-1 also went to mortuary and identified the dead body of his brother vide identification memo Ex.PW-1/A. PW-1 also received the dead body of his brother. PW-1 further deposed that he had suspicion and reason to believe that both the accused persons as well as their parents killed his brother as there was matrimonial discord between the deceased and his wife (accused Geeta). Accused Geeta used to reside at her parental house in Delhi, while the deceased was residing in a rented accommodation at Sagarpur. PW-1 correctly identified both the accused persons in the court.
24. Shri Sanjay Kumar (PW-2) deposed that he runs a videography and photography shop under the Sessions Case No.58248/2016 Page 17/59 name and style of Sanjay Studio, at Titarpur. PW- 2 stated that on the direction of I.O of the case, he had gone to DDU hospital and prepared videography of postmortem examination proceedings of the deceased. PW-2 handed over the photographs as well as Compact Disk (CD) of the videography to the I.O. PW-2 further stated that no tampering was effected during the course of preparing the CD of videography. PW-1 proved photographs Ex.PW-2/A1 to Ex.PW-2/A28 and also identified the contents of CD pertaining to the postmortem proceedings which was played in the court. PW-2 got exhibited the said CD as Ex.PA.
25. Dr. V.K. Ranga (PW-3), Specialist, Department of Forensic Medicine deposed that on 09.08.2016, he had conducted the postmortem examination on the dead body of one Dhirender Singh, male, aged about 30 years, whose dead body was identified by his near relative, and prepared postmortem examination report Ex.PW-3/A. PW-3 also deposed about inquest papers Ex.PW-3/B collectively. PW-3 further stated that as per his opinion, the cause of death of deceased was haemorrhage and shock consequent upon blunt Sessions Case No.58248/2016 Page 18/59 force impact to the chest and abdomen of the deceased and injuries mentioned at serial no.9 and 13 were sufficient to cause his death in ordinary course of natural, individually and collectively. All the injuries were ante-mortem in nature and fresh in duration and could be caused by the blunt force impact.
26. Dr. Sanjay Rai (PW-4), CMO, DDU Hospital, deposed that on 9.8.2017, Dr.Pallavi, Senior Resident (casualty) and Dr. Ajit, Junior Resident were working under his supervision. PW- 4 was acquainted with the handwriting of Dr. Ajit who who had left the services of the hospital and whose present whereabout were not known. PW-4 identified the MLC No.7202 pertaining to Gopal Singh son of Ram Avtar, Male, 24 years Ex.PW-4/A to be in the handwriting of Dr. Ajit as well as his signatures at point A and A1 thereon. PW-4 identified the MLC No.7147 pertaining to Dhirender Singh Son of Ram Sanjeevan Singh, Male, 38 years, Ex.PW-4/B to be in the handwriting of Dr.Pallavi and bearing her signatures at point A to A1, point B to B1 and points C and D as she was working with him in the hospital. PW-4 also Sessions Case No.58248/2016 Page 19/59 identified the MLC No.7091 Ex.PW-4/C pertaining to Geeta wife of Dhirender, Female, aged 28 years, to be in the handwriting of Dr. Pallavi and bearing her signatures at point A to A1.
27. Dr. Pallavi (PW-5), deposed that on 9.8.2016, she was posted as Senior Resident, Casualty, at DDU hospital. On that day, PW-5 medically examined injured Dhirender Singh Son of Ram Sanjeevan Singh, aged 30 years at 12:17 a.m. who was brought in an unresponsive state by the attendant and police. PW-5 prepared the MLC Ex.PW-4/B and declared the patient "brought dead". PW-5 further stated that on the same day, at about 12:30 a.m., she also medically examined Geeta wife of Dhirender, female, aged about 28 years with the history of physical assault. PW-5 prepared MLC Ex.PW-4/C.
28. Constable Sudhir Kumar (PW-6) deposed that on 9.8.2016, he was posted at police post DDU hospital, police station, Hari Nagar. At about 12:15 a.m, while he was present at DDU hospital, ASI Dineshan Kumar came to the hospital with Gopal, Geeta and one Dhirender Singh. Dhirender Singh was declared brought dead by the examining Sessions Case No.58248/2016 Page 20/59 doctor. PW-6 correctly identified accused persons Gopal and Geeta in the court.
29. Dr. Bhavna Saxena (PW-7), CMO, DDU hospital, deposed that on 9.8.2016 at about 12:30 a.m, she was working as CMO at DDU hospital when one injured namely Geeta wife of Dhirender, aged about 28 years was medically examined by Dr. Pallavi under her supervision. PW-7 further deposed that Dr. Pallavi prepared the MLC of the injured Ex.PW-4/C.
30. ASI Ram Chander (PW-8) deposed that on 9.8.2016 while he was posted at police station Maya Puri, he joined the investigation of the case. He alongwith IO Inspector Suraj Bhan Singh, ASI Dineshan and constable Om Pal left the police station Maya Puri, to reach at the spot i.e C-67, Phase II, IIIrd Floor, Maya Puri, where one Ram Avtar Singh was present who was the father-in-law of the deceased. Ram Avtar Singh told the I.O that his son Gopal had taken his mobile phone and some cash from the house. I.O. alongwith the staff took Ram Avtar Singh in Govt vehicle to Machhli Market from where they went inside the Subzi Mandi towards the way to Delhi Cantt railway Sessions Case No.58248/2016 Page 21/59 station. PW-8 further deposed that when they reached near flyover at the pillar to railway line, Ram Avtar pointed out towards one person who was wearing blue colour T-shirt and stated him to be his son. I.O, with the help of police team apprehended the accused Gopal. PW-8 witnessed the arrest memo of accused Gopal Ex.PW-8/A. PW-8 stated that accused was taken to the place of occurrence where I.O prepared the site plan Ex.PW-8/B at the instance of the accused in his presence.
31. PW-8 further deposed that on 10.8.2016, he again joined the investigation of the present case. PW-8 was directed to keep surveillance in plain clothes at house no.C-67, Phase-II, Maya Puri, where he reached at about 9:05 a.m. PW-8 further stated that at about 10:30 a.m., one girl holding small child in her arms came to the house. PW-8 immediately informed the duty officer regarding the girl and requested to send woman constable and also informed the I.O. The said information was recorded vide DD No.11 A. At about 10:15 a.m., woman constable Aruna came there and in the meanwhile, I.O alongwith police team also reached Sessions Case No.58248/2016 Page 22/59 at the spot. I.O., with the help of lady constable Aruna arrested accused Geeta vide memo Ex.PW- 8/C. I.O recorded disclosure statement Ex.PW-8/D of accused Geeta. I.O also seized the mobile of her husband (deceased) vide seizure memo Ex.PW-8/E.
32. PW-8 correctly identified both the accused persons Gopal and Geeta in the court. PW-8 also identified the mobile phone, make Samsung, Duos, with IMEI number 35320206 835517 6 /353202 06 835517 with two SIMs as Ex.P-5 to be the same which was recovered from the accused Geeta.
33. Dr. Ajeet Kumar (PW-9), Junior Resident, DDU hospital deposed that on 9.8.2016, he had medically examined one Gopal Singh son of Ram Avtar, Male, aged about 24 years, at 12:29 a.m, who was brought with the history of physical assault. PW-9 stated that after examination, he prepared MLC Ex.PW-4/A.
34. Constable Sudhir (PW-10) deposed that on 8.8.2016, he was posted at police station Maya Puri on emergency duty from 8 p.m to 8 a.m. On that day, at about 11:30 p.m., on receipt of DD No.28A, he alongwith ASI Dineshan reached at C-67, IIIrd Floor, Phase-II, Maya Puri, where they found Sessions Case No.58248/2016 Page 23/59 Gopal and Geeta and one person lying unconscious on the floor whose name, on inquiry, was revealed to be Dhirender Singh. PW-10 further deposed that all the injured persons were taken to DDU hospital by ASI Dineshan and PW-10 was directed to remain at the spot. PW-10 stated that at about 12/12:30 p.m SHO/Inspector Suraj Bhan came at the spot and called the crime team. ASI Dineshan came back at the spot and prepared Tehrir and gave it to him for registration of FIR. PW-10 took the rukka to police station, got the FIR registered and came back to the spot with the copy of FIR and certificate under Section 65 B of the Indian Evidence Act and handed over the same to ASI Dineshan. PW-10 stated that on 10.11.2016, he again joined the investigation of the case and went to Uttam Nagar West metro station alongwith accused Gopal as he had disclosed that he had left co-accused Geeta there. In the meanwhile, Duty Officer informed that accused Geeta had come to the place of occurrence i.e C-67, Phase II, Maya Puri, Delhi and on receiving the said information, he alongwith ASI Dineshan reached at the place of occurrence where HC Ram Chander was already Sessions Case No.58248/2016 Page 24/59 present in plain clothes. I.O formed raiding party and HC Ram Chander alongwith woman constable Aruna went to the third floor of the building where woman constable Aruna apprehended accused Geeta. I.O recorded disclosure statement of accused Geeta and got both the accused persons medically examined. PW-10 correctly identified both the accused persons in the court.
35. Constable Rakesh Kumar (PW-11) deposed that on 9.8.2016, he was posted at police station Maya Puri and on that day, at about 2.40 a.m, Duty Officer HC Hari Charan gave him copies of FIR of the case for their transmission to senior officers of police as well as the learned M.M. PW-11 accordingly went to the house of senior officers and learned link M.M and submitted the copies of the same with them.
36. ASI Suresh Kumar (PW-12) deposed that on 8.9.2016, he was directed by the SHO to get the statement of baby girl Sona @ Shivani daughter of deceased Dhirender Singh recorded under Section 164 Cr.P.C. PW-12 reached to the house of the girl, at about 10 a.m and made inquiry from girl Sona @ Shivani, aged about 8 years in the presence Sessions Case No.58248/2016 Page 25/59 of W/PSI Anupama and recorded her statement under Section 161 Cr.P.C (Ex.Y3). PW-12 took the girl Sona @ Shivani to CWC alongwith Ms. Kajal and W/PSI Anupama where CWC Board directed that the girl be produced before Manas Foundation for counselling. PW-12 produced the said girl before Manas Foundation and after her counselling, she was taken to Tis Hazari Courts for recording her statement under Section 164 Cr.P.C. PW-12 deposed about copy of the order of CWC Ex.PW-12/A and report of Manas Foundation Ex.PW-12/B. PW-12 moved an application Ex.PW- 12/C for recording statement of baby girl Sona @ Shivani before the concerned court. The statement of the baby girl under Section 164 Cr.P.C was recorded by Ms. Anu Aggarwal, learned Second Link M.M. PW-12 deposed about obtaining the copy of the statement under Section 164 Cr.P.C Ex.PW-12/D from the court of Ms Anu Aggarwal, learned M.M.
37. Woman constable Komal (PW-13) deposed that on 10.8.2016, on the direction of the I.O., she had taken accused Geeta to DDU hospital for Sessions Case No.58248/2016 Page 26/59 medical check up. I.O recorded her statement on her return to police station.
38. ASI Dineshan K. (PW-14) deposed that in the intervening night of 8/9.8.2016, he was on emergency duty and at about 11.30 p.m, on receiving DD No.28A regarding a quarrel, he alongwith constable Sudhir went to the spot i.e factory no.C-67, Phase II, Maya Puri. On the spot, PW-14 found the PCR caller Geeta, her brother Gopal and one person lying unconscious on the floor. Geeta told that the said person was her husband Dhirender Singh who became unconscious during the quarrel. PW-14 took the Dhirender Singh (deceased) with the help of Gopal and Geeta to DDU hospital in a private vehicle. PW-14 left Ct. Sudhir on the spot. At DDU hospital, Dhirender Singh was declared brought dead by the examining doctor. Injured Gopal and Geeta were also medical examined. The dead body was shifted to mortuary of DDU hospital for postmortem examination. PW-14 informed the SHO and went to the emergency ward where accused Gopal and Geeta were not found. No eye-witness of the incident was found. PW-14 prepared rukka on the copy of Sessions Case No.58248/2016 Page 27/59 DD No.28 and gave it to constable Sudhir for getting the FIR registered. PW-14 further deposed that on coming back to the spot, he met the SHO who had already informed the mobile crime team which inspected the spot and took photographs. All exhibits were collected from the spot and were sealed with the seal of SBS. PW-14 proved seizure memo of blood stained earth control Ex.PW-14/A, seizure memo of earth control Ex.PW-14/B, seizure memo of broken pieces of bangles Ex.PW-14/C, seizure memo of bed sheet Ex.PW-14/D and seizure memo of brown shirt Ex.PW-14/E. PW-14 further deposed that at the DDU hospital, duty constable handed over him the articles recovered by the hospital authority from personal search of the deceased. PW-14 seized the said articles vide memo Ex.PW-14/F. PW-14 stated that they made efforts to search for both the accused persons. PW- 14 also deposited the personal search of deceased in the Malkhana. PW-14 witnessed seizure of blood sample of deceased vide Ex.PW-14/G.PW-14 further stated that I.O arrested accused Gopal in his presence vide memo Ex.PW-8/A. He witnessed personal search of the accused vide memo Ex.PW-
Sessions Case No.58248/2016 Page 28/5914/H. PW-14 further stated that accused made disclosure statement Ex.PW-8/B in his presence. PW-14 also witnessed pointing out memo Ex.PW- 14/I.
39. PW-14 further deposed that on 16.8.2016, he again joined the investigation of the case with the I.O. I.O arrested accused Geeta from house no. C- 67, Phase-II, Maya Puri vide memo Ex.PW-8/B. PW-14 witnessed pointing out memo Ex.PW-14/J. PW-14 stated that accused Geeta produced the mobile phone of the deceased which was seized by the I.O vide memo Ex.PW-8/B. PW-14 further stated that on 10.8.2016, blood sample of both the accused persons were taken by the examining doctor which were seized vide memo Ex.PW-14/K and Ex.PW-14/L. The clothes of the deceased were handed over by the examining doctor to PW-14 which were seized vide seizure memo Ex.PW- 14/M.
40. PW-14 further deposed that on the direction of the I.O, he had collected photographs of postmortem examination Ex.PW-2/A-1 to Ex.PW- 2/A-28, postmortem examination report Ex.PW-3/A and CD Ex.PA of postmortem examination of Sessions Case No.58248/2016 Page 29/59 Dhirender Singh (deceased). PW-14 identified the case property i.e bed sheet Ex.P-1, blood stained earth control Ex.P-2, earth control Ex.P-3 and clothes of the deceased Ex.P-4 collectively. PW- 14 also identified mobile phone Ex.P-5 which was seized by the I.O in the presence of accused Geeta, broken bangle pieces Ex.P-6 ( collectively) and torn shirt Ex.P-7.
41. Inspector Raj Kumar (PW-15) deposed that on 14.9.2016, he received the case file of the present case for further investigation. PW-15 directed ASI Dineshan to collect photographs of the postmortem examination and hand over the same to Dr. V.K. Ranga. ASI Dineshan collected the photographs and CD from photographer Sh. Sanjay Kumar and transmitted the same to Dr. V.K. Ranga who prepared the postmortem examination report. ASI Dineshan brought the postmortem examination report, photographs and CD and gave it to PW-15 who recorded his statement in this regard. PW-15 also recorded statement of woman HC Rinky, who had typed the contents of the FIR on the direction of Duty Officer HC Hari Charan. PW-15 sent exhibits to FSL Rohini through constable Jagmohan Sessions Case No.58248/2016 Page 30/59 and collected scaled site plan Ex.PX-1. PW-15 stated that after completion of the investigation, he filed charge-sheet against the accused persons in the court. PW-15 correctly identified both the accused persons.
42. ACP Suraj Bhan (PW-16), I.O of the case, deposed that on 8.8.2016, he was posted at police station Maya Puri as Inspector/SHO. On that day, on receiving the information regarding a quarrel in which the injured who had been taken to DDU hospital was declared brought dead, PW-16 went to the spot and called the mobile crime team which reached at the spot and inspected the same. In the meanwhile ASI Dineshan came back at the spot from the hospital and handed over to him MLC of accused Gopal, Geeta and Dhirender Singh (deceased). PW-16 lifted the exhibits i.e one pink colour bedsheet, blood stained earth control, plain earth control and pieces of broken bangles of red colour and one shirt which were kept in different pullandas and were sealed in different pullands sealed with the seal of SBS vide seizure memos Ex.PW-14/A, PW-14/B, Ex.PW-14/C, Ex.PW-14/D and Ex.PW-14/E. PW-16 prepared the site plan Sessions Case No.58248/2016 Page 31/59 Ex.PW-16/A at the instance of ASI Dineshan. PW- 16 also recorded the statement of incharge, crime team and other members of the team. PW-16 directed ASI Dineshan and constable Sudhir to search for accused persons Gopal and Geeta. PW- 16 also recorded the statement of Mahesh brother of Dhirender Singh (deceased). PW-16 prepared the inquest papers and made application Ex.PW- 3/B for postmortem examination. PW-16 further stated that one private photographer was arranged for videography of the postmortem examination. PW-16 further stated that dead body was handed over to Mahesh, brother of the deceased. PW-16 seized exhibits given by the examining doctor vide seizure memo Ex.PW-14/G and Ex.PW-14/M.
43. PW-16 further deposed that efforts were made to arrest the accused persons and he alongwith ASI Dineshan went to Nangal Rai flyover and arrested accused Gopal vide memo Ex.PW-8/A and his personal search was made vide memo Ex.PW-14/H. PW-14 recorded disclosure statement Ex.PW-8/B of accused Gopal and prepared pointing out memo Ex.PW-14/I at the instance of accused Gopal.
Sessions Case No.58248/2016 Page 32/5944. PW-16 further stated that on 10.8.2016, he had deputed HC Ram Chander to keep surveillance at the house of accused Gopal and Geeta in order to arrest the accused Geeta who was arrested vide memo Ex.PW-8/B, her personal search was conducted by woman constable Aruna vide memo Ex.PW-8/D. PW-16 stated that accused Geeta pointed out the place of occurrence and he made pointing out memo Ex.PW-14/J. PW-16 also seized mobile phone vide seizure memo Ex.PW-8/E of Dhirender Singh (deceased) produced by accused Geeta. PW-16 also seized blood samples of both the accused persons alongwith sample seals vide memos Ex.PW-14/A and Ex.PW-14/L. PW-16 further stated that he directed ASI Suresh Kumar to get the statement of daughter namely Sona @ Shivani of accused Geeta recorded under Section 164 Cr.P.C. On 8.09.2016, the statement of girl Sona @ Shivani was recorded under Section 164 Cr.P.C.
45. PW-16 correctly identified both the accused persons in the court. PW-16 also identified the case property i.e bedsheet Ex.P-1, blood stained earth control Ex.P-2, earth control Ex.P-3, mobile Sessions Case No.58248/2016 Page 33/59 phone Ex.P-5, broken pieces of bangles Ex.P-6 ( collectively) and torn shirt Ex.P-7. Testimony of Defence Witness
46. Shri Arvind Singh (DW-1) deposed that he was working as security guard in factory i.e A-41, Maya Puri, Phase-II, New Delhi and would also perform duty in another factory i.e C-2/7, Phase-II, Maya Puri, New Delhi which belong to the same owner. Accused Gopal used to reside with his family members in a room situated on the third floor of factory no.C-67. DW-1 further deposed that in the month of August,2016, on the day of incident, at about 6/6:15 p.m, Dhirender, brother- in-law (Behnoi) of accused Gopal came and began to argue with the security guard of factory no.C-
67. After 15 min, DW-1 left from there. DW-1 further deposed that he had previously asked the deceased why he used to come and trouble the family who told that he wanted to take Rs.50,000/- from the father of the accused Gopal. DW-1 further deposed that on the day of incident, the deceased was in a drunken condition, so he had not talked much with him.
Sessions Case No.58248/2016 Page 34/59Analysis
47. In view of testimony of Mahesh Singh (PW-
1) and Dr. V.K. Ranga (PW-3), there is no doubt that Dhirender Singh son of Ram Sanjeevan Singh, R/o Village Roop Sahai Ka Purva, P.S Kotwali Dehat, District Bhind, M.P., died on 8.8.2016. His dead body was duly identified by Mahesh Singh (PW-1), his brother. Dhirender Singh (deceased) was the husband of accused Geeta who admittedly had come to the parental house of accused Geeta where she was residing for the last one year. Both the accused persons admitted in their statements under Section 313 Cr.P.C about the fact of quarrel taking place between the deceased and accused Gopal, though it was stated that accused Geeta tried to save her brother Gopal who was being assaulted by the deceased. The points for determination no.1 and 2 are decided accordingly.
48. In the present case, both the accused persons have been charged for commission of offence of murder punishable under Section 302 IPC. The principal question that falls for determination in the present case is if both the accused persons committed offence of murder or culpable homicide Sessions Case No.58248/2016 Page 35/59 not amounting to murder. As per the settled proposition 'culpable homicide' is genus and 'murder' its specie i.e all murder are culpable homicide but all culpable homicide are not murder.
49. In this regard, long back in Reg V. Govinda (1877) ILR 1 Bom. 342, Hon'ble Justice Melvill compared and distinguished the provisions of Section 299 and 300 of IPC. Later on, the Hon'ble Supreme Court in its landmark judgment titled as State of Andhra Pradesh v. R.Punnayya & Anr. 1977 AIR 45 elaborately dealt with the distinction between Section 299 and Section 300 of IPC. The relevant paragraphs of the said judgment are extracted as under:
The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused, if courts loosing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in various clauses of ss. 299 and
300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:Sessions Case No.58248/2016 Page 36/59
Section 299 IPC Section 300 IPC A person commits Subject to certain culpable homicide if the exceptions, culpable
act by which the death is homicide is murder if the caused is done - act by which the death is caused is done -
Intention
(a) with the intention of (1) with the intention of causing death; causing death;
or or
(b) with the intention of (2) with the intention of causing such bodily causing bodily injury as injury as is likely to the offender knows to be cause death; likely to cause the death of or person to whom the harm is caused;
or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;
or Knowledge
(c)with the knowledge (4) with the knowledge that the act is likely to that the act is so eminently cause death dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of using death or such injury as is mentioned above.
Sessions Case No.58248/2016 Page 37/59As is clear from the facts and circumstances of the present case, prosecution proposed to rely on clause 3rdly of Section 300 IPC to emphasis that both the accused persons caused bodily injuries to the deceased which were sufficient in the ordinary course of nature to cause death of the deceased. In this regard, it would be apt to refer Virsa Singh v. The State of Punjab (1958) SCR 1495, wherein Vivian Bose, J., explained the meaning and scope of clause (3) thus;
"The prosecution must prove the following facts before it can bring a case under s. 300 3rdly. First, it must establish, quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigation. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be proved that the injury of the type just described made up of the three elements set out above, was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender".Sessions Case No.58248/2016 Page 38/59
Here, it is relevant to extract the ratio laid down by the Apex Court in R. Punnayya (supra) case which is as under:
From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused had done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to 'culpable homicide' as defined in s.299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of s.300 Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in s.300. If the answer to this question is in the negative, the offence would be 'culpable homicide not amounting to murder', punishable under the first or second part of s.304, depending respectively on whether the second or the third clause of s.299 is applicable. If this question is Sessions Case No.58248/2016 Page 39/59 found in the positive, but the case comes within any of the Exceptions enumerated in s.300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of s.304 Penal Code.
50. Applying the afore-mentioned propositions of law to the fact of the present case, it is evident that as per the case of the prosecution, there occurred a quarrel in the house of the accused persons during which accused Gopal pulled both legs of the deceased on which he fell down and thereafter, both the accused persons beat him, sat over him and pressed his chest and abdomen to cause his death.
51. In their statements under Section 313 read with Section 281 Cr.P.C, both the accused persons admitted that a quarrel had ensued between the deceased and the accused Gopal, but acccused Gopal had not assaulted the deceased and accused Geeta had tried to save accused Gopal from the cluthes of the deceased. Both the accused persons maintained that the deceased who had come in the evening to their house, had gone outside and when Sessions Case No.58248/2016 Page 40/59 he returned, he was already having injuries on his person. Further, the deceased who was drunk had started beating accused Gopal and in the process, collapsed on his own and subsequently died.
52. It is worthy to note here that during investigation, the statement of child witness namely Sona, aged 5 years, daughter of deceased and accused Geeta, was recorded under Section 164 Cr.P.C. During the trial, Ld. Amicus Curiae admitted the geninueness of the proceedings conducted under Section 164 Cr.P.C alongwith the Manas Foundation Report about the counselling session of baby Sona and accordingly, PW Sona was dropped by the prosecution.
53. As per proceedings under Section 164 Cr.P.C (PX-13) containing the statement of bany Sona, her father (deceased) came after consumig alcohol and started beating her Mama (accused Gopal) with shoe who was lying and watching T.V. Further, mother (accused Geeta), Nana and Nani rescued Mama (accused Gopal). Her father (deceased) became unconscious while beating repeatedly. As per her statement, baby Sona hid herself in bathroom and did not witness the quarrel.
Sessions Case No.58248/2016 Page 41/59The statement of baby Sona recorded under Section 164 Cr.P.C indicate that the deceased was in a drunken condition and had started beating accused Gopal without any provocation. Besides the statement of baby Sona, there is no material available on record from which it can be inferred that accused Gopal pulled both the legs of the deceased as soon as he came upstairs and started beating him at first place as alleged by the prosecution. Even if this stand of the prosecution about baby Sona not being an eye-witness as she had hid herself in the bathroom and did not witness the complete quarrel, is presumed to be correct, the fact remains that baby Sona stated in categorical terms that it was deceased who started assaulting accused Gopal who was lying and watching T.V. This statement of baby Sona runs counter to the allegations levelled by prosecution that accused Gopal pulled both legs of the deceased.
54. In the facts and circumstances of the present case, the testimony of Dr. V.K. Ranga (PW-3) who had conducted the postmortem examination vide his report Ex.PW-3/A assumes significance. PW-3 deposed that in his opinion, the cause of death of Sessions Case No.58248/2016 Page 42/59 the deceased was haemorrhage and shock consequent upon blunt force impact to the chest and abdomen of the deceased. PW-3 also mentioned 13 external injuries of contusion present on the dead body of the deceased and injuries no.9 and 13 were found sufficient to cause death in ordinary course of nature, individually and collectively. Injury no.9 and 13 as mentioned in the postmortem examination report Ex.PW-3/A are as under:
9.Contusion, reddish of size 2.3 cm x 1.6 cm present over upper front of right side of chest.
13.Contusion, reddish of size 5.5 cm x 1 cm present over upper outer back of right abdomen.
55. In his cross-examination, PW-3 also pointed out the photographs showing the 13 external injuries. On further cross-examination, PW-13 stated that it was clear from the postmortem examination that the deceased was not suffering from tuberculosis and had no ligature mark on his neck. Though PW-3 deposed that in his opinion, a person can expire when two or more persons presses his body by their weight while the said person is lying on the floor-upside or downside, if Sessions Case No.58248/2016 Page 43/59 death is caused due to pressure on the chest and abdomen, the signs are visible in the postmortem examination. On further cross-examination, PW-3 stated that there is a difference between blunt force and manual pressure. He admitted that in postmortem examination report (Ex.PW-3/A), he had not mentioned about the manual pressure and mentioned only about the blunt force impact. PW- 13 further stated that the word 'pressure' was not mentioned in the report as no injury, particularly, injury no.9 and 13 can be caused by exerting manual pressure. PW-3 volunteered to say that the pressure can be exerted due to blunt force impact to the chest and abdomen of the deceased. However, he further admitted that if a pressure is exerted on a body by pressing the same or by standing or sitting on it, such pressure will be different from the pressure caused to the body due to blunt force impact. PW-3 deposed in categorical terms that he could not comment whether the pressure, by pressing the body or due to standing or sitting for long duration on it, was there or not in the present case. A court question was also asked to PW-3 to tell which internal organ of the body was Sessions Case No.58248/2016 Page 44/59 ruptured/damaged due to injury no.9 and 13 as there was no opinion in postmortem examination report Ex.PW-3/A in this regard. PW-3 admitted that there was no opinion in this regard, however, he stated that there were internal injury in the chest and the abdomen corresponding to injury no.9 and
13.
56. From the testimony of PW-3 and postmortem examination report Ex.PW-3/A, it is clear that PW-3 could not explain how he arrived at the conclusion that the cause of death was haemorrhage and shock consequent upon blunt force impact to the chest and abdomen. The opinion of PW-3 regarding cause of death, thus remained ambiguous. He could not explain how injury no.9 and 13 were found sufficient to cause the death in ordinary course of nature when he could not observe if there was any rupture or damage to any internal organ of the body. Mere stating that there were internal injury in the chest and the abdomen corresponding to the injury no.9 and 13 are not sufficient and were least expected to come from PW-3. PW-3 could not relate the external injury no.9 and 13 to any corresponding rupture of any Sessions Case No.58248/2016 Page 45/59 internal organ and its consequent repercussion to cause the death in ordinary course of nature. From perusal of photograph Ex.PW-2/A13, A14 and A24, also the injuries no.9 and 13 are barely visible. Furthermore, PW-3 mentioned only about the blunt force impact and not about the manual pressure while admitting that such manual pressure would be different from the pressure caused due to blunt force impact, which militates against the prosecution case.
57. To compound the above-mentioned shortcomings in postmortem examination report Ex.PW-3/A, there is unexplained delay in obtaining the postmortem examination report Ex.PW-3/A which is dated and signed by PW-3 on 9.8.2016. As per the testimony of Inspector Raj Kumar (PW-
15), when he received the case file for further investigation on 14.9.2016, he found that the postmortem report was not received from the DDU hospital. PW-15 further stated that on 23.9.2016, the postmortem examination report could not be collected as it was not ready on account of non- availablity of photographs and CD of the postmortem examination with Dr. V.K. Ranga (PW-
Sessions Case No.58248/2016 Page 46/593). PW-15 directed ASI Dineshan (PW-14) on 30.9.2016 to collect the photographs of the postmortem examination and hand over them to Dr. V.K. Ranga so that the report could be prepared, pursuant to which the photographs and CD were taken from the photographer Sanjay Kumar (PW-2) and sent to DDU hospital and then Dr. V.K. Ranga (PW-13) prepared the postmortem examination report and handed over the same to ASI Dineshan. It is, therefore, clear that the postmortem examination report Ex.PW-3/A was not prepared till 30.9.2016, however, Dr. V.K. Ranga (PW-3) signed the same on 9.8.2016. Neither Dr. V.K. Ranga (PW-3) nor ASI Dineshan (PW-14) deposed anything about the delayed preparation of postmortem examination report Ex.PW-13/A. There is no mention about any such fact in postmortem examination report Ex.PW-3/A itself which further creates doubt on the authenticity of postmortem examination report Ex.PW-3/A.
58. There is nothing on record to suggest if Dr. V.K. Ranga (PW-3) preserved the viscera of the deceased to rule out the possibility of any intoxicants or poisonous substance.
Sessions Case No.58248/2016 Page 47/5959. In the afore-discussed circumstances, the cause of death of the deceased as opined by Dr. V.K. Ranga (PW-3) does not inspire confidence and the postmortem examination report Ex.PW-3/A has become doubtful. The learned Amicus Curiae pertinently relied on Machindra v. Sajjan Galpha Rankhamb & Ors IV (2017) SLT 438, wherein relying on Smt. Nagindra Bala Mitraand v. Sunil Chandra Roy & Anr., 1960, SCR (3) 1 and State of U.P. v. Krishna Gopal & Anr. (1988) 4, SCC,302, the Apex Court laid down as under :
15. ......, We would like to emphasis on the vital role played by opinion of the expert which is simply a conclusion drawn from a set of facts coming to his knowledge and observation. Expert's opinion should be demonstrative and should be supported by convincing reasons. Court cannot be expected to surrender its own judgment and delegate its authority to a third person, however great. If the report of an expert is slipshod, inadequate or cryptic and information on similarities or dissimilarities is not available in the report of an expert, then his opinion is of no value.
Such opinions are often of no use to the Court and often lead to the breaking of very important links of prosecution evidence which are led for the purpose of prosecution. Therefore, we are of the considered opinion that the prosecution has failed to prove that Sessions Case No.58248/2016 Page 48/59 death was caused due to the injuries inflicted by the recovered weapons.
16......., Where the medical evidence is such that it does not give any clear opinion with respect to the injuries inflicted on the body of victim or deceased, as the case may be, the possibilities that the injuries might have been caused by the accused are also ruled out.
60. In the light of above-discussed facts and circumstances and the pronouncement by the Apex Court, in my considered opinion, the postmortem examination report Ex.PW-3/A is ambiguous and inadequate to reflect upon any clear cause of death of the deceased. The testimony of Dr. V.K. Ranga (PW-3) also could not clarify if there was any link between the injuries sustained, injury no.9 and 13 in particular, and death of the deceased. The postmortem examination report Ex.PW-3/A, accordingly, is of no use to the prosecution.
61. As far as the testimony of Mahesh Singh Bhaduria (PW-1), brother of the deceased, is concerned, his suspicion raised against the accused persons to have caused the death of the deceased remained unfounded and unsubstantiated. PW-1 deposed about receiving telephonic call on his mobile phone from the mobile phone of the deceased, but he failed to remember the mobile Sessions Case No.58248/2016 Page 49/59 number of the deceased. PW-1 also could not depose for how long accused Geeta was residing at her parental home prior to the incident though he was aware that accused Geeta was residing with her parents separate from the deceased. PW-1 did not depose about the mobile numbers on which he received the phone call made by the deceased or the mobile number from which the deceased made any such call. No call detail record of PW-1 was obtained by the I.O to establish if any such call was made by the deceased as claimed by PW-1. The testimony of PW-1 who apparently is an interested witness is, therefore, not trustworthy.
62. Another note-worthy point as culled out from the testimony of ASI Dineshan (PW-14) is regarding seizure of one torn shirt Ex.P7 which was seized vide seizure memo Ex.PW-14/E. The shirt Ex.P7 has been projected to have been torn during the quarrel between accused Gopal and the deceased. In his testimony recorded on 9.8.2017, PW-14 deposed that the torn shirt Ex.P7 was seized from the spot from inside the room alongwith other exhibits where the quarrel had taken place, however, in scene of crime report Ex.PX8, it was Sessions Case No.58248/2016 Page 50/59 mentioned that one checkdar torn shirt with half sleeve of right hand missing was seized which was hanging on a wire (rope) outside the room in an open place. At the time of recording of statement under Section 313 Cr.P.C, in answer to question no.15, the accused persons stated that the torn shirt was old shirt of accused Gopal which was being used as a cloth for dusting household articles and which used to remain hanged on knob behind the door of the room. The said shirt was also not having both full sleeves and was also torn from many places. The explanation furnished by the accused persons regarding torn shirt appear to be plausible in the given circumstances and testimony of PW-14 regarding seizure of torn shirt Ex.P7 from inside the room is contradictory to the scene of crime report Ex.PX8 which makes the recovery doubtful.
63. Then, there are some contradictions in the testimonies of prosecution witnesses with regard to presence of family members of the accused persons at the spot on the day of incident. For instance, Constable Sudhir (PW-10) deposed that besides the accused persons, their father was also present in the Sessions Case No.58248/2016 Page 51/59 house at that time and the only child present was the daughter of accused Geeta, who was present in the court on 4.7.2017. It was observed that the daughter of accused Geeta aged about 2 year was referred by PW-10 who did not depose about the presence of another daughter, aged 5 year, of accused Geeta on the spot. ACP Suraj Bhan Singh (PW16), on the other hand, deposed about the presence of mother of accused Gopal in the house at the relevant time and in his subsequent cross- examination conducted on 13.11.2017, he deposed that he had not come across any family member of accused persons till he remained at the spot. In the given circumstances, it could not be explained satisfactorily by the I.O if any family member of the accused persons was present on the spot on the relevant date and time and why he chose to cite baby Sona as a witness and why he did not interrogate and make the parents of the accused persons as witness in the present case.
64. As per the settled propositions of law, it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. In Sharad Birdhichand Sarda v.
Sessions Case No.58248/2016 Page 52/59State of Maharashta (1984) 4 SCC 116, which is considered a locus classicus on circumstantial evidence, it was laid down that the facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. Further, the circumstances should be of a conclusive nature and tendency and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
65. In Sujit Biswas V. State of Assam - (2013) 12 SCC 406, in the contextual facts constituting circumstantial evidence, it was also ruled that in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstance established must be of a conclusive nature Sessions Case No.58248/2016 Page 53/59 consistent only with the hypothesis of the guilt of the accused.
66. Further, in Dhan Raj @ Dhand V. State of Haryana - (2014) 6 SCC 745, while dwelling on the imperatives of circumstantial evidence, it was ruled that the same had to be of highest order to satisfy the test of proof in a criminal prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only an inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjectures.
67. Taking the entire evidence-oral and documentary- into consideration, it is evident that some quarrel had taken place between the deceased and accused Gopal at his house on 08.08.2016, however, there is no material on record to infer that both accused Gopal and Geeta caused injuries on the person of the deceased. As observed earlier, statement of baby girl Sona recorded under Section Sessions Case No.58248/2016 Page 54/59 164 Cr.P.C also indicate that only deceased was assaulting accused Gopal and other family members including accused Geeta tried to save accused Gopal from the clutches of the deceased. There is no doubt that accused Geeta was residing separate from the deceased for the last one year and have given birth to her second girl child in her parental home. During investigation, no evidence could be collected by the I.O if during this one year any quarrel had taken place between the accused persons and the deceased so as to indicate towards any intention on the part of accused persons to eliminate the deceased. It also does not appeal to common sense why accused Geeta would herself call the PCR van, if the dead body of the deceased was to be removed in the car of her known person. I do not find any merit in the submissions of Ld. Prosecutor in this regard. The possible inference that can be drawn when accused Geeta called her known person namely Subhash is that accused Geeta called him in distress either to save his brother accused Gopal or to take her husband (deceased) to hospital. It is worthy to note that the Sessions Case No.58248/2016 Page 55/59 I.O did not make the said car driver a witness for the reasons best known to him.
68. As far as the injuries sustained by the deceased are concerned, the prosecution failed to prove beyond reasonable doubt that injuries which are all contusions were caused by the accused persons. The testimony of Dr. V.K. Ranga (PW-3), as discussed above, remained inconclusive as far as the nature of injuries and the resultant damage to the internal organs leading to the death of the deceased is concerned. Though as per postmortem examination report Ex.PW-3/A, second and third rib of the deceased was found broken but no reason or opinion was given by PW-3 how ribs could have been broken- whether by assault or by collapse on the floor. Moreover, there was no injury sustained by the deceased on the backside of his head which was quite probable if both the legs of the deceased could have been pulled to make him fall on the floor. In the entire circumstances, in my considered opinion, the defence put forth by the accused persons appear to be a plausible one and accordingly, the explanation furnished by the accused persons about the circumstances leading to Sessions Case No.58248/2016 Page 56/59 the death of the deceased appear to be justified which meet the requirement of Section 106 of the Evidence Act.
69. The prosecution could not establish any motive on the part of the accused persons to commit murder of the deceased nor any clear cut causal connection between the acts of the accused persons and death of the deceased could be established to impute any mens rea on the part of the accused persons. Since the cause of death of the deceased could not be established with certainty and a reasonable doubt arose whether both the accused persons assaulted and caused injuries to the deceased or whether the deceased collapsed while assaulting accused Gopal, in my considered opinion, the prosecution failed to establish its case beyond reasonable doubts. The points for determination no.3 and 4 are decided accordingly.
70. The golden thread running through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused Sessions Case No.58248/2016 Page 57/59 and the other to his innocence, the view which is favourable to the accused should be adopted (reliance placed on Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 08). In the present case, there is no evidence against accused Geeta to hold her guilty, whereas the prosecution version about the involvement of accused Gopal is laden with doubts and improbabilities. The entire chain of circumstances put forth by the prosecution is not complete and the most important evidence in the form of medical evidence i.e postmortem examination report Ex.PW-3/A is not trustworthy which breaks the chain of circumstances. I accordingly, extend the benefit of doubt to both the accused persons namely Gopal and Geeta and acquit them.
71. Bail bond earlier furnished by the accused Geeta is cancelled. Surety is discharged.
72. Bail bond under Section 437-A Cr.P.C were furnished by both the accused persons with photograph and residential proof of the surety.
Sessions Case No.58248/2016 Page 58/5973. In view of Section 365 Cr.P.C, a copy of the judgment be also sent to District Magistrate concerned for his information.
74. The Legal heir of Dhirender Singh (deceased) i.e his two minor daughters namely Shivani @ Sona and Mansi are referred to District Legal Services Authority (West) for award of suitable compensation.
75. File be consigned to Record Room.
(Pronounced in the open (Kuldeep Narayan) Court on 30-01-2018 ) Additional Sessions Judge (Pilot Court) West : Court No. 33: Tis Hazari Courts Delhi Sessions Case No.58248/2016 Page 59/59