Delhi District Court
Titled As 'State vs Sandeep Etc.'. on 31 August, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST04), DELHI
SC No. : 83/1/08
State
Versus
1. Sandeep
S/o Tara Chand
R/o Vill. Barsola
Distt. Jind, Haryana.
2. Avdesh Kumar
S/o Dhanender Kumar
R/o Vill. Jarara, PS Khare
Distt. Aligarh, U.P.
3. Ravinder Kumar
S/o Pradeep Kumar
R/o Azad Nagar
Faridabad, Haryana.
Case arising out of :
FIR No. : 475/07
U/s : 323/341/304/147/149/34 IPC
P.S. : Kashmiri Gate
Date of FIR : 04.09.2007
Date of Institution : 01.11.2007
Date of Final Arguments : 23.08.2010
Judgment reserved on : 26.08.2010
Date of judgment : 27.08.2010
JUDGMENT
1. This judgment shall dispose off the case arising out of FIR No. 475/07, PS Kashmiri Gate, U/s 323/341/304/147/149/34 IPC case S.C. No.83/1/08 Page 1 of 33 titled as 'State Vs Sandeep etc.'.
2. The facts as germane from the prosecution story are that on 04.09.2007, SI Ram Kumar received a DD No.19A through duty officer PW1 HC Sita Ram Meena, at about 03:53PM wireless operator personally informed about the incident at Yamuna Bazar, Dharam Singh Gau Shala near Hanuman Mandir and he revealed that " Pandit Ji Ke Ladko Ne Ek Ladke Ko Jaan Se Maar Diya" . This information was recorded by HC Sita Ram Meena vide DD No.19 in Rojnamcha ' A' vide Ex.PW1/A. On assignment of the said DD to SI Ram Kumar who alongwith Ct. Amit Kumar reached at the place of Sanskrit Mahavidyalya where dead body was found in front of gate of Mahavidyalya where one Kamal Kumar Rana met him, his statement was recorded vide Ex.PW12/A and tehrir was prepared vide Ex.PW12/B. The dead body was sent to mortuary. SI Ram Kumar also met the wife of deceased Denny namely Smt. Gulshan and recorded her statement under section 161 Cr.P.C, who identified the four accused persons namely Avdesh, Sandeep, Ravinder Kumar and Narsingh Tiwari. SI Ram Kumar seized two dandas vide memo Ex.PW12/C and Ex.PW12/C1. The accused persons were arrested vide arrest memo Ex.PW3/A, Ex.PW3/B and Ex.PW3/C. The personal search memos are Ex.PW3/D, Ex.PW3/E and Ex.PW3/F. The disclosure statements of accused Avdesh, Sandeep and Ravinder recorded vide Ex.PW12/D, Ex.PW12/E and Ex.PW12/F. The accused persons also pointed out the place of incident vide memo Ex.PW12/G. The postmortm of the dead body was got conducted on his request vide Ex.PW12/H. SI Ram Kumar also seized the pulanda of cloth of S.C. No.83/1/08 Page 2 of 33 the deceased after post mortem vide memo Ex.PW12/J and recorded the statements of other witnesses. SI Ram Kumar also collected the MLC of Kamal Kumar Rana and Smt. Gulshan and the post mortem report of Dev @ Denny. The dead body was handed over to Smt. Gulshan after identification. He had also procured the opinion of the doctor and produced the sealed dandas before the doctor who gave his opinion vide Ex.PW2/B. Accused Narsingh Tiwari was found to be a juvenile, his charge sheet filed before juvenile justice Board. The dandas are Ex.P1 & P2 and clothes of the deceased i.e. a white pant and orange shirt are Ex.P3. He also obtained the opinion of the doctor regarding cause of death of the deceased vide Ex.PW12/M. After completion of the investigation challan was filed.
PW13 Kamal Kumar Rana was examined who admitted in the cross examination of the Ld. APP for state that he used to reside in the area of Yamuna Bazaar for the last 56 years and he is a rickshaw puller. He also used to sleep in the park situated behind Hanuman Mandir Yamuna Bazaar and deceased Dev @ Danny along with his wife Gulshan also used to sleep in the park. At about 12.30PM, 1012 boys from Sanskrit Mahavidyalaya Yamuna Bazaar had come in the park and asked him and Danny as to why they had committed theft in the Mahavidyalaya. He and Danny had been called to Sanskrit Mahavidyalaya and Danny's wife also followed them. Danny had told the said boys along with the accused that he has not committed any theft. The said 1012 boys pushed Danny on the ground and started beating him with hands and fists, when Danny tried to run away from the spot to save himself the said persons along with the accused beat him with dandas. When PW13 and Gulshan wife of Danny tried to intervene, the said persons also beat them with Dandas and they ran S.C. No.83/1/08 Page 3 of 33 away from the Mahavidhyalaya. The accused persons along with some other students kept on assaulting and beating Danny. The deceased Danny came outside the Mahavidhyalaya staggering and PW13 Kamal Kumar Rana and PW5 Gulshan had taken him to the park near Mahavidhyalaya. Danny was found dead by them. On the pointing out of PW13, four accused persons were apprehended and their names were later on revealed as Nar Singh Tiwari, Avdesh, Sandeep and Ravinder. The accused persons along with other 810 students of the Mahavidhyalaya had caused injuries to PW13 and Gulshan and had caused the death of Danny. All the three accused persons present were arrested vide arrest memo Ex.PW3/A to Ex.PW3/C and their personal search was carried out vide memo Ex.PW3/D to Ex.PW3/F signed by him at point B. PW13 had also identified the dead body of Denny vide identification statement Ex.13/A which was handed over to his wife Gulshan vide memo Ex.PW5/B. Site Plan was prepared at the pointing out of PW13 vide Ex13/B. PW5 Ms. Gulshan wife of the deceased also examined who also repeated the version as stated by PW13 and also stated that 1012 boys belonging to Dharamsala which is situated behind the park towards Ghat, had taken her husband forcefully, as they were accusing her husband regarding some theft. Later on, she reached there in Dharamsala and found her husband tied with a well and he was given beatings with iron rods and dandas. She tried to save her husband so she was also hit by an iron rod. She also sustained injuries on her left hand and her husband was given severe beatings by the accused persons. When condition of her husband became serious, he was released and taken out from Dharamsala and after sometime taken to a park having a temple and he was left in the park, her husband was S.C. No.83/1/08 Page 4 of 33 breathing slightly in the park. She went to call the police and when returned, her husband had died. She was taken by the police in Dharamsala where she identified the accused persons to be the same persons who caused injuries to her husband. Her statement was recorded by the police. She identified the dead body of her husband after post mortem vide Ex.PW5/A and the dead body was received vide receipt Ex.PW5/B.
3. After completion of the committal proceedings, charge against the accused persons framed for the offence punishable under section 304/323/34 IPC whereas it has been alleged that on 04.09.2007 at about 12:30 PM at premises no. 2172, Dharam Sangh Sanskrit Mahavidhyalaya, Yamuna Bazar, the accused Sandeep, Avdesh and Ravinder alongwith coaccused Narsingh Tiwari (since juvenile) in furtherance of their common intention caused multiple injuries by giving fist and leg blows and danda blows on the person of Dev @ Denny as a result of which he expired on the same day i.e. on 04.09.2007. It is further alleged that all the above named accused persons in furtherance of their common intention caused simple injuries by giving fist and leg blows and danda blows on the person of Kamal Kumar Rana and Smt. Gulshan. The charge was read over to the accused persons for they pleaded not guilty and contested the case.
4. The prosecution in order to prove the allegations against the accused persons examined PW5 Gulshan, PW12 SI Ram Kumar and PW13 Kamal Kumar Rana, all these three witnesses are the material witnesses and they have deposed in the manner in which the incident took place. The cause of death of the deceased Denny by the hands of S.C. No.83/1/08 Page 5 of 33 the accused persons. PW5 Gulshan and PW13 Kamal Kumar Rana also sustained simple injuries. PW12 SI Ram Kumar proved the documents prepared and statements of the prosecution witnesses recorded during the course of investigation.
5. After completion of the prosecution evidence, the statements of the accused persons recorded under section 313 Cr.P.C. and all the incriminating evidence led by the prosecution put to the accused which was denied as false and incorrect with the submission that they are innocent and falsely implicated in the present case. The deceased alongwith their inmates generally took smack and Gaanja in front of Sanskrit Mahavidyalya and around premises which was severely objected by Adhyapaks/Gurujis as well as by several Vidhyarthis. For the said reason only to take revenge why the accused persons had been objecting their selling/consuming of Smacks/Gaanjas in front of gate of Mahavidyalaya and due to refusal to take the same in spite of their forceful and coercive pressure on the accused persons to take the same. The deceased and his mates also had the intentions to take revenge due to the reason of objection of their illegal entry in the Mahavidyalaya with the intention of theft.
They also led defence evidence and examined DW1 Vikas Kaushik who stated in his deposition that he is studying in Shastriya (Third year). He knows the accused persons as Ravinder is his senior and rest two are juniors. On 04.09.2007, he was in the Mahavidyalaya. He is also engaged in ritual ceremonies and various worshiping ethical performances in the Mahavidyalaya. On 04.09.2007, he alongwith the said accused persons was busy in the S.C. No.83/1/08 Page 6 of 33 preparation of celebration of Janamashtami on the said date. Since morning they were engaged in preparation and decoration and performances of various rituals and ceremonies for Janamashtami along with the said accused persons. However, on the said date there was no quarrel or fight occurred on said date. The said accused persons are god fearing, well disciplined and ritualistic student of the Mahavidhyalaya and never been involved in any cases. The DW2 Devender Sharma also stated the same version as stated by DW1 Vikas Kaushik.
6. After conclusion of the evidence of both the parties, I have heard the final arguments and gone through the material placed on record.
Ld. APP for state argued that the prosecution brought home the guilt of the accused persons within the four corner of the charges by examining the ocular and trustworthy evidence. The accused persons admitted in their statement under section 313 Cr.P.C. as well as the defence evidence on 04.09.2007 about the alleged incident and their presence at Mahavidyalaya. It is also admitted that the alleged incident took place near Sanskrit Mahavidyalaya where dead body of the deceased Denny was found in front of the gate of Mahavidyalaya. PW13 Kamal Kumar Rana and PW5 Gulshan also having injuries on their persons. Both of them were medically examined. The MLC of PW13 is Ex.11/A and the MLC of PW5 Gulshan is Ex.PW11/B which have been prepared and proved by PW11 Dr. Anubha. PW5 Gulshan and PW13 Kamal Kumar Rana are the eye witnesses of the incident and they stated in their deposition that the accused persons S.C. No.83/1/08 Page 7 of 33 beaten the deceased with the dandas, leg and fist blows.
It is further submitted that the PW2 Dr. Aakash Jhanjee conducted the post mortem on the dead body of the deceased Danny and proved the post mortem report vide Ex.PW2/A and given the opinion that the cause of death as "H aemorrhage and shock consequent to blunt force impact to the abdomen and limbs regions", all the injuries were ante mortem in nature, fresh in duration and caused by blunt force impact. There is no defect in the investigation as carried on by the investigating officer. Under these circumstances, the accused persons are liable to be convicted, as per the charges as framed against them.
7. Per contra, Ld. Counsel for the accused persons submitted that in the instant case, the prosecution has fallen remarkably short of the standard of proof required to prove the guilt of a accused in a criminal proceedings. The prosecution must prove its case beyond all reasonable doubts. The prosecution must in fact establish by leading cogent evidence that the only hypothesis possible is the one leading to the guilt of the accused and that no other hypothesis that even hints at the innocence of the accused can be considered possible given the evidence adduced by the prosecution. There must not be a shred of doubt remaining in the mind of the judicial officer as to the guilt or otherwise of the accused. It is further contended that there are no independent witnesses in the instant case. The prosecution brought forth two alleged eye witnesses namely PW13 Kamal Kumar Rana friend of the deceased and PW5 Gulshan wife of the deceased who are the related witnesses as well as injured witnesses who received S.C. No.83/1/08 Page 8 of 33 injuries while attempting to save Denny. Both these witnesses were also holding enmity against the students of the Sanskrit Mahavidyalaya as the said witnesses used to consume Smack and Ganja and have tried selling the same to the students of Mahavidyalaya due to which they have been rudely rebuffed by the students of the Mahavidyalaya as they had no interests in buying drugs or consuming the same. Both these witnesses were also stopped from selling Smack in front of their college and this too has increased the animosity of the aforesaid two witnesses against the accused persons. Neither of the witnesses are independent nor these witnesses had animosity with the accused, this significantly weakens the case of the prosecution which rests solely on the evidence of these two witnesses.
It is further pointed out by Ld. Counsel for the accused persons that PW5 Gulshan stated in her examination in chief that she and the deceased were sleeping under a bridge on the date of the incident. However, PW13 Kamal Kumar Rana in his cross examination dt. 16.04.2010 stated that on the date of incident PW13 and the deceased were sleeping in the park and PW5 Gulshan was not present there. PW5 Gulshan stated in her examination in chief that the deceased died on her lap before her eyes. While in the cross examination, she stated that the deceased died while she was away trying to call the police to the place of incident. Both these witnesses have reneged from their statements on numerous occasions and their testimonies are hearsay evidence and not admissible as evidence. PW 13 Kamal Kumar Rana in his cross examination dt. 16.04.2010 stated that neither he nor PW5 Gulshan had entered the premises of the S.C. No.83/1/08 Page 9 of 33 Sanskrit Mahavidyalaya and that they were standing outside in the park when the deceased was inside the Mahavidyalaya. However. PW12 SI Ram Kumar investigating officer of the present case stated in his cross examination dt. 15.05.2010 that he had not found any eye witness on reaching the scene of crime.
It is further contented by Ld. Counsel for the accused persons that the story of the prosecution that around 1012 students of the said Mahavidyalaya had brutally assaulted the deceased. PW13 has stated in his cross examination that he was not present at the scene of the crime for even a second, it is extremely improbable that the said witness could immediately identify, remember and recognize the accused from among a number of other alleged assailants. PW13 has categorically stated that he does not recognize the accused persons as the persons who assaulted the deceased. It is further submitted by the counsel for the accused persons that PW5 Gulshan stated in her examination in chief that the deceased was taken to the Sanskrit Mahavidyalaya and tied to a well by a rope and beaten viciously by 1012 men. But the site plan prepared by the PW12 SI Ram Kumar does not show any well of any kind whatsoever in the vicinity or inside the Mahavidyalaya. PW12 SI Ram Kumar also admitted in his examination that there was no well in or around the place where the incident occurred and that no well was either seen by him or pointed out to him by any of the alleged eye witnesses.
It is further contended that both the alleged eye witnesses stated different version as to how the information regarding the commission of the crime was given to the police. Both these S.C. No.83/1/08 Page 10 of 33 witnesses gave contradictory stories as to how the police was informed of the commission of the crime. The prosecution also failed to establish accurately as to what was the time of commission of crime. Both the alleged eye witnesses have also contradicted each other as well as their earlier statements as to where exactly the deceased died. The different versions, if believed, lead to the inference that the deceased could have died in the park, on the road or inside the Mahavidyalaya.
It is further contended by the counsel for the accused persons that the medical report furnished and marked as Ex.PW12/A is tainted for the reason that the body of the deceased was tampered with without taking any precautions so as not to taint the investigation and without securing the attendance of reliable witnesses to testify that the body of the deceased was not tainted by the police before being delivered for medical examination. PW12 SI Ram Kumar stated that he put off the clothes of the deceased on the road itself in order to allegedly saw the injuries on the body of the deceased. The investigating officer did not call the ambulance or any medical personnel on the scene to verify the condition of the deceased and straight away ordered for a hearse van from the mortuary to be brought to the scene. The prosecution has hidden the material fact that pursuant to a medical opinion that was unfavourable to the case of the prosecution, on the insistence of the senior police officials. The investigating officer SI Ram Kumar sought a second medical opinion. The statements of the PW13 Kamal Kumar Rana are recorded two times under section 161 Cr.P.C. on different dates vide Ex.PW12/A S.C. No.83/1/08 Page 11 of 33 and Ex.PW12/DA which are blatantly contradictory in nature. The concerned police official had recorded Ex.PW12/DA on an earlier date, however, not being satisfied with the contents of the said statements and with the malafide intentions of manufacturing false evidence in order to falsely implicate the accused the second statement of PW13 was recorded.
It is further submitted that the alleged murder weapons recovered by the police have not been identified in court by either of the two alleged eye witnesses. The PW5 Gulshan throughout her examination in chief conducted on 10.12.2008 and 25.07.2009 was not asked even once to identify the murder weapons by the prosecution. Counsel for the accused also relied upon Dharambir Singh Vs State, 120 (2005) DLT 318. The prosecution story that the deceased was beaten by Lathis by 1012 students is belied by that the fact that the post mortem report Ex.PW12/A clearly indicates that there was not a single fracture anywhere in the entire body of the deceased. The material contradictions in the testimonies of the two alleged eye witnesses do not inspire confidence as to its veracity and that consequently the accused persons are liable to be acquitted.
8. Having heard the submissions of both the parties as well as the material placed on record and the authorities cited.
In order to prove the charges against the accused u/s 304 IPC, the prosecution must prove :
(a) The death of the person in question.
(b) Such death was caused by the act of accused, It is observed in case titled as Ganpat 1978 Cri LJ 6 (Del) S.C. No.83/1/08 Page 12 of 33 that where the medical evidence showed that besides the injuries on the head, the deceased had received four injuries on different parts of his body and the prosecution had not explained as to how and in what circumstances the deceased had received the other blows, the conviction of the accused under section 304 Part II could not be sustained.
(c) that the accused intended by such act to cause death, or that he intended by such act to cause such bodily injury as was likely to cause death, or that he knew that such act of his would be likely to cause death.
The most important consideration upon a trial for this offence is the 'in tention or knowledge' with which the act which caused death, was done. The ' intention' to cause death or the knowledge that death will probably be caused, is essential and is that to which the law principally looks. And it is of the utmost importance that those who may be entrusted with judicial powers should clearly understand that no conviction ought to take place, unless such intention or knowledge can from the evidence be concluded to have really existed.
The existence of a particular evil motive such as hatred, avarice, jealousy, etc., is not necessary. It is no part of the definition of culpable homicide that the act which causes death should be a malicious act. Malice is not made a necessary ingredient. Whatever may be discoverable, the question for investigation is this : Did the accused person intend to cause death, or a bodily injury likely to end in death; or did he know that it was a probable result of his act? If S.C. No.83/1/08 Page 13 of 33 such was his purpose and design, or such his knowledge, and none of the General Exceptions of this code are applicable; the act is an offence within this definition, although there is no apparent motive for it. If the intention or knowledge is clearly shown, it is needless to enquire into the motives. It must not, however be forgotten that under certain circumstances the existence of a motive may become an important element in a chain of presumptive evidence, as tending to show the intention of the accused person.
It may be asked how can the existence of the requisite intention or knowledge be proved, seeing that these are internal and invisible acts of the mind? They can be ascertained only from external and visible acts. Observation and experience enable us to judge of the connection between men' s conduct and their intentions. We know that a sane man does not usually commit certain acts heedlessly or unintentionally and generally we have no difficulty in inferring from his conduct what was his real intention upon any occasion.
9. It was observed in case titled as M & M 230, 231; Molu 1976 SCC (Cri) 636, it may be asked how can the existence of the requisite intention or knowledge be proved, seeing that these are internal and invisible acts of the mind? They can be ascertained only from external and visible acts. Observation and experience enable the court to judge of the connection between men' s conduct and their intentions. The court knows that a sane man does not usually commit certain acts heedlessly or unintentionally and generally the court have not difficulty in inferring from his conduct what was his real intention upon any given occasion. Where at least one of the injuries on the S.C. No.83/1/08 Page 14 of 33 deceased was severe enough to cause death in the ordinary course of nature, the court held that it could never be treated as an injury contemplated under section325, but should be held to be one that would cause death which knowledge the accused must have had. The court held that the accused could only be convicted for an offence under section 304II IPC.
10. In the instant case, the case of the prosecution based on the testimony of PW5 Gulshan alleged wife of the deceased Dev @ Denny who stated that her husband was involved in theft case. He was taken away by some people when he was sleeping under a bridge. Later on when she woken up by someone and Kamal Kumar Rana told of about her husband, then she went near the well and she found that her husband tied with a well and he was given beatings with iron rods and dandas. She tried to save her husband so she was also hit by an iron rod and she sustained injuries on her person. She further stated that the accused persons had beaten her husband with the saria blows and her husband was taken out from the well by accused persons, thereafter they dragged him to temple. The accused persons run away from the temple after leaving her husband when she reached there and he was lying in semi conscious condition. She took the head of her husband in her lap and later he died. She further testified in her examination dt. 25.07.2009 that her husband was hit by the iron rod and dandas by all the accused persons. She has put up forward on behalf of the accused persons several contradictions which brought on record by the counsel for the accused. She also confronted from her statement under section 161 Cr.P.C. She saw her husband Denny S.C. No.83/1/08 Page 15 of 33 coming out of Sanskrit Mahavidhyala and walking on his own to the park. She has called the police when she came back and found that Denny had died. It is denied in the cross examination that Denny had committed theft in the Dharamshala of the property of the students and that he had sustained injuries while running away after committing the theft. It is also denied that no injuries were caused by the accused persons to Denny @ Dev.
PW13 Kamal Kumar Rana complainant stated that the students of Mahavidyalaya had told him that PW13 and the deceased Denny had committed theft in the Mahavidyalaya and a scuffle and fight had taken place and they killed Denny. He had also sustained injuries as those students had also beaten him. PW13 Kamal Kumar Rana was also cross examined by Ld. APP for state in which he admitted that 1012 boys from Sanskrit Mahavidyalaya Yamuna Bazar had come in the park and asked him and Denny as to why they had committed theft in the Mahavidyalaya saying that they had to make inquiries from him. He confronted from his statement under section 161 Cr.P.C. It is further admitted that the accused persons alongwith other students caused injuries to PW5 Gulshan and also caused the death of the deceased Denny husband of PW5 Gulshan.
PW13 Kamal Kumar Rana was also cross examined by defence counsel and in the cross examination it is admitted that he and deceased Denny were closed friends and used to take smack from last seven years. Denny used to have smack worth of Rs.300/ everyday i.e. three pudias of Rs.100/ each.
PW2 Dr. Akash Jhanjee opined that the injuries as shown in S.C. No.83/1/08 Page 16 of 33 the post mortem are consequent to injuries caused on the abdomen and limbs. In the cross examination by defence counsel it is denied that thighs and legs are not vital. In the present case, the legs, thighs and the spinal area was opened by him and as per his post mortem report he did not find any fracture on the limbs or any bone of the body. It is admitted that there was no external bleeding of the deceased from any of the natural orifices and there was no lacerated injuries on the body of the deceased. The heart, kidney, liver, spleen, lungs were examined during internal examination of the body. Both lungs, spleen, kidneys were found pale it means there was loss of blood, therefore, the textures of the organs gives pale appearance. Liver over the outer surface of the right lobe was found to be lacerated. In his opinion, in the present case the death was a result of cumulative effect of both external and internal injuries.
PW12 SI Ram Kumar prepared the tehrir on the statement of Kamal Kumar Rana vide Ex.PW12/B and he seized two dandas vide Ex.PW12/C. All the accused persons were arrested on the date of incident. He directly took the dead body of the deceased Denny to the mortuary through hearse van. He made site plan Ex.PW13/B and Ex.PW10/A on the pointing out of Kamal Kumar Rana. PW3 Ct. Amit Kumar remained with the investigating officer during the course of investigation. He made contradictory statement as regarding the preparation of the site plan. He does not remember by whom the dead body was taken to mortuary. All the three accused persons made disclosure statements before the investigating officer and got recovered two dandas in pursuance of their disclosure statements from S.C. No.83/1/08 Page 17 of 33 the corder of one room of Sanskrit Mahavidyalaya. He was also cross examined by defence counsel and he stated in the cross examination that when he came back from the police station, the dead body was not there. However, the investigating officer was present at the spot. He does not remember if the body was wearing anything on chest or back. He does not remember if the pant was right up to the ankles or if it was rolled up to the knees. The body was lying with stomach facing the sky. Rest of the suggestions were denied by him.
11. The deposition made by PW5 Gulshan and PW13 Kamal Kumar Rana revealed that the deceased Denny was taken to Sanskrit Mahavidyalaya as to ask that he has committed theft. He was beaten and later on he was left. He himself has came out from Mahavidyalaya staggering and later on he died. No doubt, both PW5 Gulshan and PW13 Kamal Kumar Rana have made contradictory statements and also made some improvements and developments in their statements. But the prosecution story does not abruptly denied to have sustaining the injuries by the deceased when he was in the custody of the students of Sanskrit Mahavidyalaya including the accused persons. Ld. Defence counsel admitted this fact that PW13 and the deceased used to take smack and they also used to sell smack to the students of the Sanskrit Mahavidyalaya. They have been reprimanded several times to this effect. But they have not adhere to the direction and even though when the alleged theft took place, the students of the Mahavidyalaya took the deceased on suspicion to Mahavidyalaya and given severe beatings. However, the weapon of offence as alleged to have been recovered and the doctor concerned S.C. No.83/1/08 Page 18 of 33 who conducted the post mortem stated that the injuries as shown in the post mortem report can be caused with the dandas as recovered, which shows that he himself is not confirm that the injuries can be caused by dandas or by some other object. No iron rod was recovered from the possession of the accused persons. The deceased was never being taken to the hospital for preparation of the MLC or to be declared him dead by the doctor. The investigating officer SI Ram Kumar himself has assumed by checking his nervous system that the deceased has died and he was directly taken to the mortuary for conducting the post mortem. Dr. Anubha proved the MLC of the injured PW5 Gulshan and PW13 Kamal Kumar Rana vide MLC Ex.PW11/A and Ex.PW11/B. There was high swelling on right side and there was no internal injury. The said swelling was due to assault at about 11:00AM. Similarly, the injuries shown on the person of Gulshan was opined as simple in nature. These injuries cannot be self inflicted injuries.
12. In the criminal trial, the prosecution is duty bound to prove its case against the accused beyond reasonable doubt. Before recording the guilt of the accused, the court is required to satisfy itself that the possibility of the innocence of the accused is ruled out. The evidence produced on the record must convince the mind of the court beyond all reasonable doubt. The golden thread running into the web of criminal justice system has laid down the rule of prudence that the court must insist higher degree of proof in criminal cases as compared to civil cases. The court cannot record the conviction on suspicion or conjecture. There is presumption of innocence in favour of the accused S.C. No.83/1/08 Page 19 of 33 and therefore, the burden of proving the charge is on the prosecution. Reference can be made to the State of Punjab Vs. Jagir Singh. (1974) 3 SCC, 277. In the above noted case the apex court inter alia held as under:
" A criminal trial is not like a fairy tale wherein one is free to flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty for the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
There cannot be any specific formula for the appreciation of evidence. Law is a science and the application of the same is an art. The provisions of the statute are to be interpreted keeping in view the peculiar facts and circumstances of each case. Each case presents its own features. The evidence on record is to be considered as a whole irrespective of the fact that it has been led by the prosecution or accused. Ld. Counsel for the accused has assailed the case of the S.C. No.83/1/08 Page 20 of 33 prosecution on several grounds. I propose to take the issue raised by the defence as follows.
13. Ld. Counsel for accused has pointed out several lacunas in the investigation and has submitted that the case of prosecution cannot be accepted as it is culmination of tainted investigation. It has been submitted that there are several lacuna in the investigation and the Investigation Officer failed to carry out the investigation on the expected lines. Investigation is the main component of the Criminal Justice systems. Fair investigation is the right of the accused and tainted investigation is bound to prejudice the accused. It is also a matter of common knowledge that investigating agency sometime fails to carry out the investigation as per norms. The investigation part in the Criminal Justice system requires lot of improvement. The Scientific investigation is also the need of the hour. In the present case also there are certain lacuna in the investigation but no further investigation was carried out in this regard. However, rejecting the case of the prosecution merely on the basis of defective investigation would amount to paying the premium for the faults of an Investigating Officer. It would also amount to playing into the hands of Investigation Officer. Reference can be made to Karnal Singh Vs. State of M.P. (1995) 5 SCC 518. In this case the apex court inter alia held as under: " Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the Court has to be circumspect in S.C. No.83/1/08 Page 21 of 33 evaluating the evidence but it would not be right in acquitting an accused persons solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer, if the investigation is designedly defective"
14. It has also been held time and again by the superior courts that in the case of defective investigation the case of the prosecution should be examined dehors such omissions otherwise the mischief done deliberately would be perpetuated and justice could be denied to the complainant party. Reference can be made to Ram Bihar Yadav Vs. State of Bihar (1994) 4 SCC.517. In Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920, the apex court dealt with plea of tainted investigation and inter alia held as under: " In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective."
15. In Paras Yadav and others Vs. State of Bihar (1999 (2) SCC 126) it was held that " if the lapse or omission is committed by the investigating agency, the prosecutions evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the Courts; otherwise the designed mischief would be perpetuated and justice could be denied to the complainant party."
S.C. No.83/1/08 Page 22 of 33It was also observed in Ram Bihari Yadava Vs. State of Bihar and others( 1998 (4) SCC 517) that " if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice"
16. Counsel for the accused also examined two defence witnesses in rebuttal but from the deposition of both the defence witnesses the presence of the accused persons in the Sanskrit Mahavidyalaya are very much and same is not denied. The counsel for the accused had not put any suggestions in any point of time regarding recovery of the dandas from the rooms of the accused persons. The enmity of the accused persons himself been admitted by the defence counsel and the statement under section 313 Cr.P.C. It is admitted that PW5 Gulshan and PW13 Kamal Kumar Rana holding enmity against the students of Mahavidyalaya and tried to sell smack to the students of the Mahavidyalaya. On such occasions, they have been rudely regened by the students of the Mahavidyala as they do not want to take the smack. It is also matter of fact that the deceased and the PW13 Kamal Kumar Rana were also smack addict for the last seven years. Apart from the injuries caused by the students of the Mahavidyalaya there can be so many reasons for failure of the vital organs of the body like Heart, Lungs, Kidney etc.
17. The existence or absence of motive acquires some significance regarding the probability of the prosecution case. When motive is proved, it affords added support to the finding to the guilt of S.C. No.83/1/08 Page 23 of 33 the accused. When the offence of fight and murder is proved by evidence of eyewitnesses and the circumstantial evidence as well as medical evidence, the question of motive becomes insignificant.
Here, in the present scenario, the enmity against the deceased and PW5 Gulshan and PW13 Kamal Kumar Rana is more significant when the counsel for the accused persons during their cross examination have categorically admitted the fact that the these witnesses are smack addicted and they also tried to sell the smack to the students of the Mahavidyalaya which is against their ethics and they have been reprimanded several times to this effect. The deceased Denny was surrounded by the accused persons and PW5 Gulshan and PW13 Kamal Kumar Rana escaped away. Then the deceased Denny was mercilessly beaten by the accused persons. But the deposition of these two witnesses have a number of contradictions but their statements cannot be said to be completely false version of the occurrence as taken place inside the Mahavidyalaya. Since the medical evidence does not corroborate with the oral evidence. PW2 Dr. Akash Jhanjee opined the external 15 injuries on the person of the deceased who opined that all the injuries are found below the waist on the vital part of the body of the deceased. Even though, there was no MLC is prepared of the deceased nor any such explanation was given by the prosecution as to why the deceased was not shifted to the Govt. Hospital for preparation of MLC. It is also revealed from the report of the crime team that after reaching at the place of occurrence and took photographs but none of the photographs were placed on the record nor any explanation was given on this aspect. None of the iron rods S.C. No.83/1/08 Page 24 of 33 are recovered as alleged by the PW5 and PW13. Therefore, the medical evidence does not corroborate with the deposition of the eye witnesses. The depositions of the eye witnesses do not inspire confidence. Therefore, the same cannot be relied upon to bring home the guilt of the accused persons within the four corners of the charges levelled against the accused persons. However, it is a hard fact that the oral evidence, the injuries as sustained by them are consistent with the medical evidence and there is positive evidence brought on record by the prosecution in the form of testimony of PW5 Gulshan and PW13 K.K. Rana as regarding to the injuries sustained by them.
The injuries as sustained by the deceased Denny are on the lower part of the body and there is no external injury or fracture nor any internal/external bleeding was found to be detected. There was no MLC prepared by the doctor. Undoubtedly, it is a manifest defect in the investigation, the manner of investigation as conducted but the basis of defective investigation, the case of the prosecution cannot be thrown away. The presence of the accused persons as well as of both the eye witnesses and deceased is also duly proved.
18. In Dalip Singh and Ors. V The State of Punjab (AIR 1953 SC 364), The apex court while lying down the principle for appreciation of evidence of a witness, interalia held as under: " A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to which to implicate him falsely. Ordinarily a close relation would be the last to screen the real S.C. No.83/1/08 Page 25 of 33 culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty , but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to comb at what is so often put forwards cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to be governed by its own facts.
Hon' ble Supreme Court has followed the same principle in Gull Chand and Ors. V. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar V. State of Madras (AIR 1957 SC 614) was also relied upon. In the present case the defence has not b een able to bring any material on the record that the witnesses were related to the deceased in any manner or they were having any enmity with the accused. The source of these witnesses also does not seem to be tainted at all.
19. Therefore, in view of the aforesaid facts, circumstances and the contentions raised by the counsel for the accused persons as well as the depositions of the prosecution as brought on record. It is evidence that both the eye witnesses PW5 Gulshan and PW13 Kamal Kumar Rana sustained injuries on their persons as per their MLC. The deceased has also sustained injuries but none of the injuries has been S.C. No.83/1/08 Page 26 of 33 pointed on vital party of the body which caused damage to any part. The deceased was also smack addict and used to consume three pudias worth of Rs.300/ per day for last seven years. The person who consuming smack for last seven years, his mental and physical condition will be definitely poor and can cause imminent danger to his life. None of the vital organs were damaged in the injury sustained by the deceased. There are improvements and contradictions in the depositions of the prosecution witnesses that does not vitiate the prosecution story, the chain of evidence is complete to bring home the guilt of the accused persons for the offence under section 323/34 IPC. However, the ingredients of section 304 IPC has not been proved by any ocular or cogent evidence. There is lack of scientific evidence conducted in the present case.
20. In view of the deposition of PW5 Gulshan and PW13 Kamal Kumar Rana as well as the investigating officer conducted the investigation and manner of proving the documents prepared during the course of investigation, bring home the guilt of the accused persons within the charges under section 323/34 IPC. Accordingly, the accused persons namely Sandeep, Avdesh Kumar and Ravinder Kumar are hereby convicted for the offence punishable under section 323/34 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court today ADDITIONAL SESSIONS JUDGE i.e. on 27.08.2010 (WEST04):DELHI S.C. No.83/1/08 Page 27 of 33 IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE (WEST04), DELHI SC No. : 83/1/08 State Versus 1. Sandeep S/o Tara Chand R/o Vill. Barsola Distt. Jind, Haryana. 2. Avdesh Kumar S/o Dhanender Kumar R/o Vill. Jarara, PS Khare Distt. Aligarh, U.P. 3. Ravinder Kumar S/o Pradeep Kumar R/o Azad Nagar Faridabad, Haryana. Case arising out of : FIR No. : 475/07 U/s : 323/34 IPC P.S. : Kashmiri Gate Order on Sentence 31.08.2010 Present: Sh. Subhash Chauhan, Ld. APP for state.
Convicted with counsel Sh. Prashant Mehandiratta. Having heard the submissions of both the parties and carefully gone through the material on record. The accused persons are S.C. No.83/1/08 Page 28 of 33 convicted for the offence under section 323/34 IPC, vide separate detailed judgment dt. 27.08.2010.
Ld. APP for state argued that the prosecution proved its case against the accused persons beyond all reasonable doubts for the offence punishable under section 323/34 IPC. However, the charges were framed under section 304/323/34 IPC but due to deposition and analysis of the prosecution witnesses, the ingredients of section 304/34 IPC could not be proved and prosecution failed to bring home the guilt of the accused persons for the offence punishable under section 304/34 IPC. The prosecution only able to prove the offence punishable under section 323/34 IPC. Since there are some little bit flaws in the investigation and the depositions of the prosecution witnesses. In these circumstances, the accused persons may be sentenced to the maximum punishment to the extent of one year or with fine. It is further contended that the PW5 Gulshan is a widow and her husband died in unnatural death and atrocities as borne by her in the hands of the convicted. The weapon of offence also recovered on the instance of the accused persons which have been corroborated with the medical evidence. Therefore, some compensation may be awarded to legal heirs of the deceased Denny@Dev.
The counsel for the convicted submitted that all the accused persons are young boys who are facing the trial since 2007 and remained in judicial custody for more than about six months. The convicted are innocent persons and Brahmin by their caste. They did not kill even an aunt, how they can kill a human being. The convicted have been preaching lessons of nonviolence, truth and faith in humanity. The S.C. No.83/1/08 Page 29 of 33 homicide is beyond their imagination. Actually, the police agency so as to work out its case, the present convicted are the students of Sanskrit Mahavidyalaya who have been picked up being innocent students of Mahavidyala who does not know the tricks of law. They have been called in the police station and implicated in this case. There was no external injury on the person of PW5 Gulshan and PW13 Kamal Kumar Rana. Even though, the deceased has not suffered any external injury or bleeding from any party of the body. Even if a blow of danda put on any person it will certainly bring some contusion and fracture injury. But there is no MLC of the deceased on record. The convicted has suffered a lot socially, economically and mentally. This punishment already suffered by them are more than being sentenced to the jail. It is prayed that they may be released on admonishment and undergone imprisonment on probation.
In view of the submissions of Ld. Counsels and material placed on record, the act for which the accused persons are being convicted is the simple hurt which they alleged causes three years back. The convicted has also remained in judicial custody for a sufficient period of time. They have also suffered physical and mental trauma while facing rigor trial. The victims had received only abrasions. The nature of injuries sustained are simple and more or less superficious. The convicted also guilty for the offence under section 323/34 IPC which is not an offence of serious nature. No useful purpose will be served by sending the convicted persons to jail.
In case titled as Sitaram Paswan 2005 Cri LJ 4135 (SC), where the incident occurred at the spur of the moment and the accused S.C. No.83/1/08 Page 30 of 33 made the assault using danda and the fists and caused simple injuries to the victim, he being first offender, was held entitled to the benefit under section 4 of the Probation of Offenders Act. The court is bound to extend the benefit of the provisions of Probation of Offenders Act on a person who is found guilty and is below 21 years of age and trial court was held not justified in refusing to extend the benefit of the Act observing that complainant had suffered as many as seven injuries on his person and that the complainant belonged to a Scheduled Tribe. Both the grounds were irrelevant to consider question of grant of probation as observed in case titled as Manoj Kumar 2000 Cri LJ 1997 (MP).
Therefore, keeping in view of the submissions made by Ld. Counsel for the convicted as well as Ld. APP for state. The convicted namely Sandeep, Avdesh Kumar and Ravinder Kumar are hereby granted the probation for a period of one year and be released on furnishing of probation bond worth of Rs.10,000/ each and one surety of the like amount to the satisfaction of the court and also directed to maintain peace and good behaviour for a period of one year failing which liable to suffer the sentence as prescribed under the law.
With respect to the atrocities faced by the victim PW5 Gulshan wife of the deceased Denny @ Dev, she has suffered physically and mentally. In Mangilal Vs State of M.P. (2004) 2 SCC 447:
"The power of the court to award compensation to victims under section 357 is not ancillary to other sentences but is in addition thereto. In Hari Singh Vs Sukhbir Singh, it was observed that the power under section 357 is a measure of responding appropriately to S.C. No.83/1/08 Page 31 of 33 crime as well as reconciling the victim with the offender. It is, to some extent, a recompensatory measure to rehabilitate to an extent the beleaguered victims of the crime; a modern constructive approach to crimes and a step forward in our criminal justice system. In Sarwan Singh Vs State of Punjab, it was held that in awarding compensation, the court has to decide whether the case is a fit one in which compensation has to be awarded. If it is found that the compensation should be ordered to be paid, courts are obliged to keep into account the capacity of the accused to pay the compensation besides taking into consideration also the nature of the crime in each case, the justness of the claim for compensation and the need for it in the context of the victim or members of the family of the victim and other relevant circumstances, if any, in so fixing or apportioning the amount of compensation. As noted above, the mode of application of the fine is indicated in subsection (1) of section 357. Subsection (3) contains an independent and distinct power to award compensation.
In Pankajbhai Nagjibhai Patel Vs State of Gujarat, (2001) 2 SCC 595 :
"....Whe never a Magistrate of the First Class feels that the complainant should be compensated he can, after imposing a term of imprisonment, award compensation to the complainant for which no limit is prescribed in Section 357 of the Code."
Keeping in view of the facts and circumstances of the present case, the convicted are directed to pay a sum of Rs.10,000/ each to the legal heir of the deceased Dev @ Denny i.e to PW5 Gulshan as compensation in default of three months simple imprisonment.
S.C. No.83/1/08 Page 32 of 33The sentence awarded will meet the end of justice and also have a deterrent as well as reformatory way to the convicted too.
Copy of this order and judgment be given to the convicted free of cost forthwith.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court today ADDITIONAL SESSIONS JUDGE
i.e. on 31.08.2010 (WEST04):DELHI
S.C. No.83/1/08 Page 33 of 33