Delhi District Court
State vs . Joginder @ Sushe & Ors. Fir No. 176/2006 on 19 August, 2010
State vs. Joginder @ Sushe & Ors. FIR No. 176/2006
IN THE COURT OF SH. INDER JEET SINGH, ADDL. SESSION JUDGE
02, WEST DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of -
S.C. No. 50/2007
FIR No. 176/2006
P.S. Ashok Vihar
U/s 302/34 IPC
Govt. of NCT of Delhi.
...... State
Versus
1. Joginder @ Sushe, S/o Anil Kumar,
R/o Jhuggi No. D42, SS Nagar,
Wazirpur Industrial Area,
Ashok Vihar, Delhi.
2. Krishan Pal @ Bobby, S/o Ranbir Singh,
R/o Jhuggi No. D176, S S Nagar
Wazirpur Industrial Area,
Ashok Vihar, Delhi.
...... Accused
Date of Institution : 31.05.2007
Decision Reserved on : 16.08.2010
Date of decision : 19.08.2010
S.C. No. 50/2007 Page 1 of 42
State vs. Joginder @ Sushe & Ors. FIR No. 176/2006
JUDGMENT
1.1 (Prosecution Case) - On receipt of PCR call, HC. Ram Babu (PW12, PCR Van police official), arrived at the spot and took injured Jagan Nath to Babu Jagjivan Ram Hospital. The local police officials namely HC. Madan along with Ct. Mahavir, on receipt of DD No. 2 PP Wazirpur Industrial Area, at 1.30 am on 10.03.2006 (Ex. PW16/B), reached firstly at A4 Jhuggis and then at Babu Jagjivan Ram Hospital, where MLC of injured Jagan Nath was collected, declaring him unfit to make statement and patient was referred to Bara Hindu Rao Hospital. Keeping in view, the then circumstances of nonavailability of eye witness, the patient was under influence of intoxication, HC. Madan Singh (now PW3) recorded tehrir and formal FIR No. 176/2006 (Ex. PW9/A) was registered under section 324 IPC in Police Station Ashok Vihar.
HC. Madan, the first Investigating Officer reached at the spot and recorded statement of Smt. Punita (now PW1, W/o Jagan Nath) and Smt. Sunita (now PW2). They say it was S.C. No. 50/2007 Page 2 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 th midnight, at about 1/1.15 am of 10 March, 2006, Jagan Nath, S/o Ram Awadh, was on cot in front of his jhuggi at A4 Group Jhuggis, near Railway Line, Wazirpur Industrial Area, Delhi, when neighbourer accused Joginder @ Sushe and accused Krishan Pal @ Bobby were quarreling and fighting to Jagan Nath, as to why, he lay on cot in the middle of way. Then accused persons in order to teach Jagan Nath a lesson accused Krishan Pal @ Bobby caught hold of Jagan Nath and accused Joginder @ Sushe took out a knife from his pocket and gave its blow in the stomach of Jagan Nath. Realizing the situation, the accused flee away from the spot. However, Jagan Nath's landlady Smt. Sunita (now PW2)/ neighbourer, informed the Police Control Room.
The injured Jagan Nath was referred to Bara Hindu Rao Hospital and considering the contents of MLC, the police officials started investigation on the lines of Section 307 IPC. The injured Jagan Nath was brought to Bara Hindu Rao Hospital at about 3.50 am on 10.03.2006, however, the said Jagan Nath was declared dead at about 3.28 pm on 10.03.2006, this information was dispatched to police authorities, which was registered as DD No. 27 dated 10.03.2006 at 6 pm (Ex. PW20/A). Accordingly, S.C. No. 50/2007 Page 3 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 further investigation was carried by other Investigating Officers. During the phase of investigation, not only postmortem of dead body was carried but also opinion was obtained about the cause of death visavis weapon of offence folder knife recovered; scientific opinion from FSL, in respect of apparels worn by the deceased at the time of incident as well as knife was also obtained. The accused were arrested on 11.03.2006 at 4 pm. Lastly, it result into charge sheet under section 302/34 IPC against both the accused. 1.5 (Charge) - The case was opened in the Sessions Court. Both the accused were charged under section 302/34 IPC that on 10.03.2006 at about 1/1.15 am, at A4, Group Jhuggis, near Railway Line, Wazirpur Industrial Area, Delhi that they in furtherance of their common intention, committed murder of Jagan Nath by stabbing him by accused Joginder @ Sushe, while accused Krishan Pal @ Bobby caught hold of him. However, both the accused pleaded not guilty and claimed trial. 2.1 (Prosecution Evidence) - In order to establish the charge, the prosecution got examined twenty witnesses, their names and purpose of examination, in precise, is classified, as follows S.C. No. 50/2007 Page 4 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 **** ****
1. PW1 Smt. Punita, W/o Shri Jagan Nath - to prove that she is wife of deceased Jagan Nath, she saw the episode caused by accused persons and PW2 Smt. Sunita informed the police and her husband was taken to hospital. The apparelsunderwear and banyan were handed over to her by the hospital authorities, which she produced to the police, the same were seized by memo (Ex. PW1/A), which she identified as underwear (P
1), banyan (P2) and also knife (P3), weapon of offence.
2. PW2 Smt. Sunita, W/o Shri Azad Singh - to prove that she is landlady of PW1 and deceased Jagan Nath, she saw the incident caused by the accused persons, whom she was already knowing. Her residence is adjacent to the Jhuggi of PW1. She informed the police by dialing No. 100 from telephone No. 55823607. She accompanied the injured to hospital. Site plan was prepared at her instance. PW2 was further called and cross examined with the permission of Court under section 311 Cr.P.C on behalf of accused persons.
3. PW13 Ct. Sunil Kumar, No. 2775, PCR - to establish that he was on duty in Police Control Room, when telephone call was received in the midnight between 9/10.03.2006, he recorded the information in PCR Form 1 (Ex. PW13/A) and information was sent for further communication by him.
4. PW12 HC Ram Babu, No. 382/E, Police Station Gandhi Nagar - to prove that his duty was in PCR Van in the intervening night of 9/10.03.2006 and on receipt of call, he rushed to the spot, where Jagan Nath was found in injured condition and he/PW12 took him to Babu Jagjivan Ram Hospital. In the way, the said Jagan Nath disclosed name of Sushe and Bobby, as assailants. Jagan Nath was brought to Hospital at about 2 am (midnight) of 10.03.2006
5. PW4 Ashwani Kumar, S/o Shri Ram Avadh - to establish that he is elder brother of Jagan Nath and he reached Delhi on 11.03.2006 on receipt of information and identified dead body of his brother. **** ****
6. PW3 HC. Madan Singh, No. 2286 (first IO), Police Station Ashok Vihar - to establish that immediately on 10.03.2006, receipt of an information, he S.C. No. 50/2007 Page 5 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 went to spot, then to Babu Jagjivan Ram Hospital and prepared tehrir (Ex. PW3/A) and get the formal FIR under section 324 IPC registered, then being the first investigating officer, he also prepared unscaled site plan (Ex. PW3/B) of the spot. He recorded the statement of eye witnesses PW1 Smt. Punita and PW2 Smt. Sunita. On the eve of conversion of case into Section 307/34 IPC, the investigation was entrusted to PW20 SI K.S. Dogra.
7. PW18 Ct. Mahavir Shankar, No. 2120, PCR, Delhi - to prove that on 10.03.2006, he accompanied HC. Madan Singh (PW3) to the spot and then to Babu Jagjivan Ram Hospital, he was given tehrir for registration of FIR and he get the formal FIR under section 324 IPC registered from the Police Station. Besides, the statement of eye witnesses were also recorded in his presence and site plan of spot was also prepared. ********
8. PW19 Inspector Sharwan Kumar (third IO), Inspector Investigating NDR - to establish that with effect from 11.03.2006, the investigation was marked to him and he along with SI K.S. Dogra and SI Dharambir went to hospital and they did the needful investigation like getting the postmortem of deceased, blood sample, opinion on the weapon of offence as well as cause of death. The accused persons were also got arrested, their disclosures were also recorded and thereafter, weapon of offenceknife was got discovered. The scaled site plan was got prepared from PW14 SI Manohar Lal, Draftsman.
9. PW10 ASI Dharambir Sigh, No. 748/D, Police Station Shalimar Bagh - to prove that on 11.03.2006, he participated in the investigation qua inquest proceedings under section 174 Cr.P.C, getting the postmortem of deceased, handing over of dead body to family members of deceased. The blood sample as well as apparels of deceased were also seized.
10. PW20 SI K.S. Dogra, No. D/2356 (second IO), Police Station Sultan Puri - to establish that he was assigned the investigation of the case from first Investigating Officer/PW3 HC. Madan after analyzing MLC that the case is to be investigated on the lines of Section 307 IPC, however, when an information (DD No. 27, Ex. PW20/A) was received that Jagan Nath had died in Bara Hindu Rao Hospital, the investigation was handed over to Inspector S.K. Sharma (PW19).
******** S.C. No. 50/2007 Page 6 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006
11. PW6 Dr. Neeraj Chaudhary, Casualty Medical Officer, BJRM Hospital
- to establish that he is acquainted with the writing and signature of Dr. Brijesh, who prepared MLC (Ex. PW6/A, portion A to D), when patient Jagan Nath was brought to hospital and also acquainted with the writing of Dr. Gautam, who prepared the portion U to Z on the MLC, when the patient was referred to surgery department. Since, both the doctors have left the hospital, that is why Dr. Neeraj Chaudhary appeared in their place.
12. PW5 Dr. Deepak Chauhan, Bara Hindu Rao Hospital - he appeared in place of Dr. Ajay Mandal, who prepared death summary dated 11.03.2006 (Ex. PW5/A) of Jagan Nath.
13. PW8 Dr. C.B. Dabas, Head of Department, Forensic Medicine, Bara Hindu Rao Hospital - to prove that he conducted postmortem on the body of deceased Jagan Nath and prepared detailed postmortem report (Ex. PW 8/A), besides opinion on injuries No. 1 to 4, which were antemortem in nature and recent; the injury No. 5 is a therapeutic (surgical wound). Further, to prove that he gave opinion (Ex. PW8/B) in respect of knife (its sketch Ex. PW8/C) visavis the injuries. The death is due to haemorrhage and shock consequent to injuries. Injury No. 1 (i.e. Peritonial cavity after cutting through abdominal wall and then peritneum and cut through left suprarenal gland and capsule of left kidney and then penetrated through left renal vessels and then through loops of small intestine and its mesentry then superior mesentric vessels and then inferior venacaba and ended on right side in para vertibral muscles, at the level of second lumbar vertibra. The peritonium cavity retroperitonial space contained clotted and free blood. The length of the track was 12 cm and direction was from front to behind and towards right) is sufficient to cause death in the ordinary course of nature and is caused by blunt sharp edged weapon. ********
14. PW14 SI Manohar Lal, North West District - to establish that on 24.05.2006, on the instructions of PW19 Inspector S.K. Sharma, he visited the place of occurrence and prepared scaled site plan on the pointing out of PW2 Smt. Sunita, however, after preparing site plan (Ex. PW14/A), the brief notes were destroyed.
15. PW17 Dr. Trithi Dey, Junior Scientific Officer, FSL Chandigarh - to prove that she had examined exhibits like knife, blood sample and apparels of deceased and gave biological and serology report (Ex. PW 17/A).
S.C. No. 50/2007 Page 7 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 *********
16. PW16 HC. Kulwant No. 8738/DAP, PTS Malviya Nagar, Delhi - to establish that on 09.03.2006, he was DD Writer and he received an information from NW Control Room, he recorded DD No. 2 (Ex. PW16/A) and its copy (Ex. PW16/B) was given to HC. Madan Singh.
17. PW9 HC. Randhir Singh, No. 1439/NW Police Station Rohini - to prove that he was duty officer in Police Station Ashok Vihar, when he recorded formal FIR No. 176/2006 (Ex. PW9/A).
18. PW11 HC. Hemraj, No. 531/N, Police Station Sarai Rohilla - to establish that he was working as MHC(M) on 11.03.2006, 10.04.2006, 25.04.2006 and 14.11.2006 in Police Station Ashok Vihar and maintained register No. 19 (extract Ex. PW11/A to Ex. PW11/C), while dealing with the affairs of articles.
19. PW7 Ct. Ajay, No. 7333/DAP, 6th Battalion, Delhi Police - to prove that on 10.04.2006, he took sealed pulanda from Malkhana to Hindu Rao Hospital and handed over it to Dr. C.B. Dabas (PW8) for opinion and also brought back the sealed pulanda assigned to him by police authorities.
20. PW15 HC. Satbir, No. 7212/DAP, Police Station Punjabi Bagh - to establish that on 25.04.2006, he took three sealed pulands from Malkhana to FSL Kolkata along with forwarding letter and deposited the same there vide RC No. 5/21/2006 and he came back on 03.05.2006. ******** 2.2 (Statement of Accused Persons) - After closure of prosecution evidence, statement of both the accused were recorded, without oath, under section 313 Cr.P.C and except admitting of their residence in the vicinity of Jhuggies of Wazirpur Industrial Area, all other allegations were denied by them. Accused Krishan Pal @ S.C. No. 50/2007 Page 8 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 Bobby pleaded his innocence that he was called in the Police Station for some inquiry but he was detained there, besides beating by way of third degree method and accused Joginder @ Sushe was already in the custody of police, he was implicated falsely because he was living in the same vicinity. Smt. Sunita had some differences with the family of Joginder and because of it, he has been framed in the case. The other accused Joginder @ Sushe also denied the allegations that the present case is creation of Smt. Sunita and during the pendency of present case, a false case under section 506 IPC was registered against him and his father, the court of Ld. Metropolitan Magistrate, Delhi, acquitted them of charge under section 506 IPC. They have not opted for defence evidence. 3.1 Sh. B. S. Kain, Ld. Additional Public Prosecutor for State, submits that the entire evidence available in the form of oral deposition of witnesses, the material evidence in the form of weapon of offence, apparels of victim Jagan Nath and medical evidence, prove the charge against both the accused persons. The entire evidence has to be read together and Ld. defence counsel, raised certain points as material contradictions, whereas, the same S.C. No. 50/2007 Page 9 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 are not the contradictions but omission happened due to passage of time, being time gap between the date of incident and dates of deposition of witnesses in the court.
3.3 Whereas Ld. defence counsel Sh. Akhilesh Kumar Pandey, Advocate for both the accused submits that it is cardinal principle of criminal administration of justice that accused are innocent till they are proved guilty, and whereas, the prosecution failed to discharge its duty in proving the charge beyond reasonable doubt. Man may lie but the circumstances do not lie, this maxim applies to the feature of present case. On plain reading of record, it can be gathered that there are holes in the prosecution case, the investigation was not fair and there are material contradictions and inconsistencies in the statement of witnesses, which do not prove the case of prosecution. Further, witnesses PW1 and PW2 are interested and introduced witnesses, on the other side, the material witnesses ought to have been arrayed, are withheld by the investigating agency, an adverse inference is to be drawn against the prosecution. The material on record do not satisfy the requirement of Section 299 and Section 300 of IPC, resultantly, the S.C. No. 50/2007 Page 10 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 charge under section 302 IPC has not been proved beyond reasonable doubt, the benefit of doubt goes in favour of accused persons. In fact, the accused are not culprits. 3.5 While Ld. Additional Public Prosecutor for State and Ld. defence counsel argued finally, the record was correspondingly referred. The rival contentions and the points raised are discussed & findings are given in the forthcoming paragraphs. 4.1 Firstly, the issue of withholding of witness is being taken. Ld. defence counsel submits that as per the case of prosecution, PW1's relative namely Sant Ram and Daya Chand were present in the Jhuggi, they had dinner there but there is no investigation by the investigating agency to join them as witness to the case. Similarly, as per prosecution case, the spot is surrounded by number of other Jhuggies and there was crowd of about 100 people but none of them was joined as an independent witness. Since, PW1 and PW2 are interested witnesses, for want of joining the other witnesses or independent witnesses amount to withheld of material witnesses, it is fatal to the case of prosecution. The S.C. No. 50/2007 Page 11 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 contentions are fortified, while relying upon Hem Raj & Ors. vs. State of Haryana 2005 (2) LRC 36 SC that when the evidence of alleged eyewitnesses raise serious doubts on the point of their presence at time of actual occurrence, unexplained omission to examine independent witness would assume significance. 4.3 Whereas Ld. Additional Public Prosecutor for State explains that PW1 and PW2 are the natural witnesses and the available witnesses have been arrayed in the chargesheet, there is no record to infer that material witnesses were withheld by the investigating agency.
4.5 It is cardinal principle that the prosecution should produce the best evidence in the court, it implies that the material witnesses should not be withheld. In case there is material witness but it is withheld, it may be fatal to the prosecution, as nonproduction of material witness will infer that the witness is in possession of knowledge of fact of the case, which prosecution does not want to take risk of producing it. The statement of PW1 and PW2 are analyzed in the light of other material on record, for the following S.C. No. 50/2007 Page 12 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 reasons, it is held that there is no material witness, which has been withheld by the prosecution from its appearance in the court
(i)witness PW1 Smt. Punita was cross examined in detail in respect of relatives Sant Ram and Daya Chand; PW2 was also cross examined in detail in respect of her family members at home and the people of surroundings;
(ii)PW1 responded that they (Sant Ram & Daya Chand) were present in the Jhuggies and dinner was prepared for them before 8 pm and they left the place after having dinner; the other residents of the Jhuggies were inside their Jhuggies, being night time;
(iii)PW1, further replied, that her children were sleeping and the said guests Sant Ram and Daya Chand were not present at the time of incident;
(iv)PW2 Smt. Sunita says at the time of incident, her husband and two children were in Jhuggi, her third child was in native village and at the time of occurrence, PW2 did not permit anyone of her family member to got outside the Jhuggi;
(v)PW2 in her cross examination, said specifically "..... it is correct that they had not witness the occurrence ....."; and
(vi)People have gathered in the hospital after death of Jagan Nath.
Thus, it is not a case of withholding of any witness by the prosecution. Witness PW12 HC. Ram Babu had also found S.C. No. 50/2007 Page 13 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 gathering of 5060 persons but none of them came forward, claiming to be eye witness of incident.
5.1 Ld. defence counsel highlights that witness PW1 Smt. Punita has narrated that name of PW2 Smt. Sunita, as her aunt, whereas, there does not exist such relation between the two. They are not reliable witnesses. However, the State has contrary contentions that in case, PW2 has been addressed as "Aunt", it will not demerit the case of prosecution.
5.3 It is matter of record that PW1 has referred PW2 as Aunt but the same is being perceived differently by the parties. Witness PW1 in her cross examination clearly explains that Sunita is not in her relation and similarly, PW2 Sunita in her cross examination explained that Punita is not in her relation. As a matter of fact, in common parlance, whenever any person is addressed, in case such person is elder in age, as a matter of etiquettes, he or she is addressed like Uncle or Aunt, which in fact reflects a relation, despite no such relation exists. The situation in hand is not an exception to it. Thus, this contention of the parties also stands S.C. No. 50/2007 Page 14 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 disposed off.
6.1 The third issue is in respect of want of investigation in respect of telephone No. 55823607. As per prosecution case, witness PW2 made call to Police Control Room from a telephone but there is no verification of such telephone number whether it was existing in the Jhuggies or how PW2 was able to utilize the phone. The PCR FormI (Ex. PW13/A) reflects word "female" in the column of informant, it does not mention the name of PW2 Smt. Sunita, therefore, the circumstances are surrounding by the suspicion whether PW2 rang PCR.
Whereas, Ld. Additional Public Prosecutor for State submits that PCR calls are recorded in the headquarter and it was recorded immediately, there is nothing to disbelieve. Otherwise, it was not warranted to verify the record to whom the telephone was belonging or where it was installed, since the calls are made at the earliest to make the State machinery in motion. 6.4 The rival contentions are based on record. The answer lies in the record itself, in the from of oral statement of PW2 and PCR S.C. No. 50/2007 Page 15 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 FormI. Witness PW2 explains that it was TATA phone to be used against cash card, belonging to her relative Manoj and phone No. 55823607 is still in operation. PCR FormI does not mention name of Smt. Sunita but a female; PW2 Smt. Sunita is a female. Therefore, this issue also stand answered.
7.1 The fourth issue is with regard to the names of accused Joginder @ Sushe and Krishan Pal @ Bobby. Ld. defence counsel submits that witness PW12 HC. Ram Babu says that when injured Jagan Nath was being carried in the vehicle to hospital, the injured disclosed the names of assailants Sushe and Bobby. However, during the investigation, the call book was not seized and produced. Further, he took the injured to Baba Jagjivan Ram Hospital in the intervening night of 9/10.03.2006 but his statement under section 161 Cr.P.C was recorded on 09.05.2006, there was a long gap, in which the names of Sushe and Bobby were introduced as assailants. As a matter of fact, for want of name of accused in the FIR, PW12 ought to have been the first informant of names of assailants, since he heard from the mouth of injured, it has not been done by the Investigating agency. There is an after thought exercise to introduce the name of accused persons as assailants. S.C. No. 50/2007 Page 16 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 Whereas, Ld. Additional Public Prosecutor for State has reservations that PW12 went to the spot on receipt of information from Police Control Room, which was dispatched from the headquarter of police. The duty of PW12 was to reach the spot immediately and to take the injured to hospital, he did so. There is no weight in the submission on behalf of accused persons. 7.4 On assessment, the contentions are based on record, its answer can also be traced in the record. It is a matter of statement of PW12 that he was called by the Investigating Officer on 09.05.2006 for his statement in respect of the facts occurred in the intervening night of 9/10.03.2006, when he visited the spot and the hospital on receipt of call from Police Control Room. The PCR FormI (Ex. PW13/A) is written by PW13 Ct. Sunil Kumar. Form (Ex. PW13/A) has three parts viz. PartI written by PW13 and PartII when further information was sent to Police Control Room/wireless staff and PartIII when further information was passed to Police Station Ashok Vihar/Duty Officer. The PartII reveals the juncture when injured was being taken to hospital and PartIII reveals name of injured Jagan Nath as well as assailants S.C. No. 50/2007 Page 17 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 Sushe and Bobby; this PartI, PartII and PartIII were recorded on the same very day within a short span of time. Thus, at the time PartIII was recorded, the names of accused were mentioned, besides the name of injured. However, there is a delay in recording the statement of PW12 under section 161 Cr.P.C. This contention also stands disposed off.
8.1 The fifth issue is regarding strained relations between PW1 Smt. Punita and her husband Jagan Nath. Ld. defence counsel submits that in a few lines of examinationinchief of PW1 reflects the colour that she has strained relations with Jagan Nath, since Jagan Nath was putting up his residence somewhere else and PW1 came to the house of her sisterinlaw Smt. Manju, but she intentionally deposed otherwise in the cross examination.
Whereas the State has opposed the submissions that the witnesses deposed whatever was in their knowledge/cognizance, there is no merits in the submissions on behalf of accused persons. 8.4 As per record, witnesses PW1 Smt. Punita, witness PW2 Smt. Sunita, landlady of PW1 and PW4 Ashwini Kumar, elder S.C. No. 50/2007 Page 18 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 brother of deceased Jagan Nath, were cross examined in respect of relations existing between Jagan Nath and his wife Smt. Punita. There is a common version that there were cordial relations between PW1 Smt. Punita and her husband Jagan Nath.
At this stage of the judgment, while reflecting the position of evidence, the other features of the case are being taken in the forthcoming paragraphs, while reflecting the other rival contentions of both the parties.
9.1 Ld. defence counsel requests that there are material contradictions in the statement of PW1 & PW2 visavis the statement of police officials, which reflects that neither witness PW1 nor witness PW2 had seen any incident and that is why their statements are clashing each other; like PW1 says that Jagan Nath was not lifted by her but PW2 says that Jagan Nath was lifted by both by PW1 and PW2; PW1 says that she was not knowing whether their clothes were smeared with the blood of Jagan Nath but PW2 says that their clothes were not smeared with the blood of Jagan Nath. Further PW1 says her first statement was recorded in the hospital and second statement was recorded at the time clothes S.C. No. 50/2007 Page 19 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 of Jagan Nath were handed over to the police and similarly, statement of PW2 was recorded twice, whereas PW2 says that her statement was recorded at her jhuggi at 12 noon. These contradictions suggests that the conduct of PW1 is unnatural and PW2 is in neighbour of PW1 and had both the witnesses together there was no occasion for their contradictory statements. 9.3 According to PW1, the said Jagan Nath was having meal and according to PW2 when she came she did not notice the contents of utensils and PW8 Dr. C. B. Dabas in his statement and postmortem report opines that there was no semi digested food in the stomach of deceased Jagan Nath but about 200 ml. Brownish colour liquid material. Witness PW1 during her cross examination explained that on the day of incident had prepared meat meal, in case the deceased Jagan Nath had consumed meal, it ought to have been discovered in his stomach during postmortem. This concludes that it was a fabricated and concocted story of witnesses to implicate the accused falsely.
9.3 As per prosecution case there was a knife blow in the S.C. No. 50/2007 Page 20 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 stomach of Jagan Nath, however, neither during the investigation any blood was deducted nor collected either from spot or on the cot. It is natural that in the eventuality of a forceful assault with a knife, blood falls on the articles or the place where injured was sitting or moving, however, this has not happened in the present case. Further as per FSL result no blood was found on the underwear of Jagan Nath, being the negative report, but on baniyan. The baniyan portion is above the underwear portion of body, there ought to have been blood smeared on the underwear portion if the blood has flown from the abdominal portion. The underwear and baniyan was handed over by PW1 at the residence to the police, as per prosecution case, however, the circumstances appearing suggests that there is manipulation as on the one hand no blood was found on the cot or spot of incident or on the underwear but blood was found on the baniyan. The circumstances are full of doubt, which do not prove the charge. 9.5 The recovery of knife is also disputed as per the circumstances appearing from the case of prosecution. The prosecution/investigating agency is projecting unnatural conduct of S.C. No. 50/2007 Page 21 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 accused. Firstly the accused had not given any disclosure statement, secondly, the place of recovery of knife is shown about 15 steps away from the place of recording disclosure statement, thirdly, Ct. Ravish, a margin witness to the seizure memo, has not stepped into the witness box and PW20 SI K.S. Dogra has not uttered iota of facts about recovery of any knife in his presence. The Investigating Officer did not try to ascertain chance print on the knife to link it with the accused person and as per FSL result there is negative report of blood stains on the knife. Had there been the knife, the weapon of offence, used forcefully, it would have been bearing blood stains. Further PW8 Dr. C. B. Dabas had also given opinion Ex. PW8/D that no opinion can be expressed about the knife visavis the injuries on the body of deceased, because of surgical intervention. Otherwise, the knife sketch Ex. PW8/C reflects length of blade 8.2 cm which is contrary to the measurement of blade 8.5 cm mentioned in the seizure memo Ex. PW10/C. 9.7 The statement of PW8 Dr. C. B. Dabas, the knife produced and the statement of eye witnesses are clashing each other. S.C. No. 50/2007 Page 22 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 According to PW8, there should be blade of 5 inch for the injuries found on the body of the deceased, whereas the knife produced was having blade of 8.2cm. This falsifies the case of the prosecution.
9.6 Ld. defence counsel fortifies the contentions by relying upon the following case law:
1. Amjad Khan vs. State 134 (2006) DLT 195 - Statement of witnesses were materially different and do not inspire confidence and there was no evidence to show that the knife was used in incident, it was held that there was nothing on record to connect the knife with the murder.
2. Shiv Narayan vs. State 93 (2001) DLT 681 - The knife was recovered from an open plot and it was held that when the articles was visible to others, it cannot be concluded recovery of articles in terms of Section 27 of the Indian Evidence Act.
3. Dharambir Singh vs. State 120 (2005) DLT 318 - It was held that when no witness was able to identify the knife used at crime nor the knife was connected to the incident by CFSL result, the recovery even if authentic does not itself connect the accused to the murder.
4. Shakeel @ Bhura vs. State 156 (2009) DLT 682 - It was held that as per FSL result, the knife did not contain any blood. However, it was stated to be recovered on the disclosure statement made by the S.C. No. 50/2007 Page 23 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 appellant, put doubt in the case of prosecution.
5. Shaukat Ali @ Bechan vs. State 2007 (98) DRJ 144 It was held that there is no admissible piece of evidence on record to link the jeans purportedly worn by the accused at the time of crime and recovered at the instance of accused. The appellant was acquitted. (Ld. defence counsel supplements that in the case at hands no witness to the effect of recovery of knife has deposed).
6. Chunni Lal @ Pappu vs. State 2006 (90) DRJ 339 The circumstances like no blood of deceased on the clothes of accused, or absence of blood on the place of occurrence, absence of any motive, it was held there is doubt in the case of prosecution and convict/appellant was extended benefit of doubt.
7. Ramsewak & Ors. vs. State of Madhya Pradesh JT 2004 (Suppl.1) SC 217 - Section 3 of Indian Evidence Act was discussed in a murder case, whereby the police came at the spot nearly 4 to 5 hours later, the dead body was lying there for a period of 4 to 5 hours, still the investigating agency was unable to find any blood on the spot. There was an explanation by the prosecution that after the incident in question, it had rained and there was no trace of blood. However, the Hon'ble Supreme Court of India held that the case could not have been established by the prosecution and it is difficult to believe, that the traces of blood could not have been found from the soil after rain.
8. State of Karnatka vs. Babu & Ors. AIR 1994 SC 31 - Section 300 of IPC read with Section 3 of Indian Evidence Act, were discussed that the eye witnesses had asserted that the deceased had not eaten S.C. No. 50/2007 Page 24 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 anything but presence of semidigested food in the stomach belied the stand of eye witnesses; the witnesses were held not reliable.
9. Bejoy Singh & Vijay Narain Singh vs. State of West Bengal AIR 1990 SC 814 - There was difference between the prosecution evidence and the medical evidence that accused caught hold from the deceased and the other stabbed the deceased, because of such difference in the evidence, the conviction of appellants were set aside.
10.Ajaib Singh vs. State of Haryana JT 1992 (1) SC - There was medical evidence not supporting the oral testimony of witnesses; according to medical officer PW1 an injury found on the body of deceased was circular and considering the evidence given by PW1, the trial court concluded that the deceased could not have been caused injuries by a sua, it was held that the prosecution was not able to establish the guilt of appellant and accused was acquitted.
11.Shambhoo Missir & Ors. vs. State of Bihar (1990) 4 SCC 17 - The deceased had taken food before 8:00 am and that death took place at 3:00 pm, during postmortem doctor finds eight ounce of undigested food in the stomach of deceased, there was no explanation for the undigested food, therefore it was held that medical evidence falsifies the prosecution case and established that deceased had died soon after 8:00 am.
9.7 Ld. defence counsel further submits that the requirement of law of section 299 or section 300 IPC are not satisfied, even at the S.C. No. 50/2007 Page 25 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 stage of framing of formal charge, if the facts were considered as it is, there was no occasion for framing of charge under section 302 IPC, at the extreme the charge could have been framed under section 304 IPC. On the basis of evidence on record, no offence under section 302 IPC or under section 304 IPC is established. The witnesses PW2 are introduced witnesses and they are not reliable. The rest material on the record is of circumstances but such circumstances evidence do not corroborate each other to conclude that the case has been established by the prosecution. No motive has been attributed or proved by the prosecution. The prosecution case is surrounded by doubt and in such eventuality benefit goes in favour of accused. Otherwise when two views are possible, the view in favour of accused shall be considered. Ld. defence counsel relies upon the following case of law, to fortify his contentions:
1. Varkey Joseph vs. State of Kerela AIR 1993 SC 1892 - It was held that suspicion is not substitute for proof and it was held that prosecution has miserably failed to prove its case against the accused, there was production of false evidence.
2. Hem Raj & Ors. vs. State of Haryana 2005 (2) LRC 36 SC that when the evidence of alleged eyewitnesses raise serious doubts on S.C. No. 50/2007 Page 26 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 the point of their presence at time of actual occurrence, unexplained omission to examine independent witness would be assume significance. Further it was held that being like time it was difficult for the eye witnesses to see the assailants from a distance of 30 ft. or more.
3. Harijana Thirupala & Ors. vs. Public Prosecutor, High Court of Andhra Pradesh AIR 2002 SC 2821 The accused and deceased were neighbours, however, the case of prosecution was not supported by medical evidence and independent eye witnesses, though available but not examined, it was held that the prosecution was not able to prove the case beyond reasonable doubts.
4. Dhanpal vs. State by Public Prosecutor, Madras VII (2009) SLT 413
- Statement of witness was not corroborated by any other acceptable evidence and statement of other witness rejected by the trial court, the medical evidence was also not supporting the prosecution case, it was held that the view taken by the trial court, being possible or plausible view should not be substituted by other view of High Court.
Ld. defence counsel concludes to acquit the both accused for want of proof of charge and also by extending them benefit of doubt.
10. Whereas Sh. B. S. Kain, Ld. Additional Public Prosecutor for State opposed the submission that neither there are S.C. No. 50/2007 Page 27 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 contradictions in the statement of eye witnesses nor the medical evidence is contrary to the oral testimony of witnesses. The medical evidence proves the place of injuries as well as the nature of injuries corroborated by the oral deposition of the spot witnesses. It is the fact that the blood was not discovered from the spot or cot was not seized in the investigation but it could not be fatal the case of prosecution, firstly in the light of the other evidence on record and secondly, at the initial stage case was registered under section 324 IPC. The knife was recovered at the instance of accused Joginder @ Sushe, however witness PW8 has given explanation that exact opinion is not possible with regard to the injuries and the weapon knife because of surgical intervention. The entire evidence is to be read together and neither there is any doubt in the case of prosecution nor any chain of corroboration is missing, therefore, the prosecution has succeeded to establish the charge under section 302/34 IPC.
11. The other rival contentions of Ld. defence counsel referred in paragraph No.9 above & of the State referred in paragraph No.10 are assessed in the light of material on record, available in the form S.C. No. 50/2007 Page 28 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 of oral deposition of witnesses, documentary record & opinions, the statutory provisions of law and precedent/case law. The findings are given in paragraph No.12 below.
12.1 First of all, the testimony of PW1 & PW2 are considered, since it is contended that they were not present at the spot but they have been introduced by the investigating agency & there are material contradictions in their statements. Ld. defence counsel has read out a few contradictions in the statement of PW1 & PW2, like PW1 states that alike her, statement of PW2 was recorded twice or there are different version of their observations qua non smearing of blood on their clothes. After assessing the totality of the circumstances, the following conclusions are drawn:
(i).Witness PW1 says that her statement was recorded twice, firstly, in the hospital & secondly, when clothes were handed over to the police & similarly, the statement of witness PW2 was recorded twice. Whereas, according to witness PW2 her statement was recorded at her residence/jhuggi at 12 noon. It is witness/PW2 who could best explain as to how many times, her statements was recorded but she was not cross examined as to how many times, her statement was recorded by the Investigating Officer.
S.C. No. 50/2007 Page 29 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006
(iii).Witness PW1 says that she does not know whether the clothes of PW2 were smeared with blood & PW2 says that her clothes were not smeared with the blood of Jagan Nath. It cannot be construed a contradiction.
(v).Witness PW2 in her cross examination states that "....... it is correct that I had gone to hospital with Jagan Nath ...".
(vii).PW2 could accompany Jagan Nath to the hospital only in the eventuality when she was present & available at the residence.
(ix).PCR form record (Ex. PW13/A) reflects that the call was on telephone No.55823607 by a female & in view of the reasons (iii) & (iv) above, the call was possible when PW 2 was available at her residence.
(xi).Site plan Ex. PW3/A prepared by the first Investigating Officer & scaled site plan Ex. PW14/A prepared by draftsman was at the instance of Smt. Sunita & witness PW14 draftsman also explains that the scaled site plan was prepared during the presence of witness PW2.
(xiii).Witness PW2 was also cross examined in respect of electricity visavis supply of electricity & it has been explained by her that there was existing electricity, the site plan Ex. PW14/B also reflects existence of electric bulb, at point D & E. Although there is no electricity connections in the vicinity of jhuggies & it has been admitted by the S.C. No. 50/2007 Page 30 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 witnesses that the electricity was being abstracted without connection. The Investigating Officer also explains that energy was being abstracted by the occupants without regular connections from the authorities. To say, there was electricity light on the day of incident.
12.2 Now the other surrounding facts & evidence of spot are taken up, since oral testimony & medical record & opinion are involved. The followings conclusions are drawn, since a vital question whether Jagan Nath had consumed meal or not:
(i).Witness PW1 deposed that at the time of incident she had not taken the meal, although the meal was prepared & it was already served to the guests. Witness PW1 explains that since her husband had had not meal, there was no question of her having meal prior to her husband.
(iii).Witness PW1 says that her husband was on cot & he was there to take meal or having meal.
(v).Witness PW2 says that she did not notice, the contents of utensils lying with Jagan Nath on the cot.
(vii).The aforementioned conclusions, concludes that Jagan Nath was present on the cot & he was at the juncture of meal.
S.C. No. 50/2007 Page 31 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006
(ix).As per statement of witness PW8 Dr. C. B. Dabas & postmortem report Ex. PW8/A no food particles were found in the stomach of the deceased. Ld. defence counsel has raised a point of evidence that for want of semidigested food or food particles in the stomach infer that Jagan Nath was not having meal & it falsifies the version of witnesses PW1 & PW2. Whereas this contention does not sustain, for the reason - (a) presence of semidigest food or food particles are possible in the eventuality in consumption of food in solid form, (b) the witness PW1 had prepared meat for guests but there is no evidence that the meat was actually served to or eaten by Jagan Nath, (c) the postmortem report Ex.
PW8/A/second page reflects stomach contents 200 ml of brown colour liquid material intact & (d) presence of 200 ml of brown colour liquid material in the stomach of Jagan Nath was possible since material was consumed in liquid form.
(xi).Thus presence of Jagan Nath on the cot as well as presence of liquid material in his stomach establishes that he had had taken material in liquid form immediately prior to his death or incident.
12.4 Another issue for consideration is with regard to the blood, as Ld. defence counsel has rightly pointed out that the investigating agency had not collected blood either from the spot or from the cot & there is no blood found on the underwear of deceased or blood S.C. No. 50/2007 Page 32 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 on the clothes of witnesses, who took Jagan Nath, the deceased to the hospital. The following reasons are deducted from the evidence:
(i).Witness PW1 is wife of Jagan Nath, witness PW2 is a neighbourer & witness PW12 is the PCR official, who took Jagan Nath to the hospital & witness PW3 is the first Investigating Officer, however, none of them narrates about the presence of blood either on the cot, or on the surface of spot. However, witness PW12 states that he had seen the injury on the left side abdomen of Jagan Nath.
(iii).Witness PW8 Dr. C. B. Dabas was cross examined about chances of falling of blood either at surface or in the vehicle or during the process on shifting of injured Jagan Nath from one place to another place, however, witness PW8 Dr. C. B. Dabas answers that no definite opinion can be given.
(v).There is postmortem report & MLC of Jagan Nath, which is also containing certain facts, which can be analyzed from the point of view of blood. The MLC Ex. PW6/A is the first record prepared in Babu Jag Jeewan Ram, Hospital on the arrival of Jagan Nath & senior resident doctor surgery observed that there was no active bleeding seen & omentum seen over the wound. (Omentum means a fold of peritoneum which connects the stomach with liver, spleen colon etc.). Secondly, as per postmortem S.C. No. 50/2007 Page 33 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 report/second page, the abdomen was containing about 1.5 lt. of blood. Since omentum was seen from the wounds, there was no active bleeding observed & stomach was containing 1.5 lt. of blood. Is it not possible that the blood collected inside the body instead of flowing outside? The court cannot substitute its opinion in place of opinion of the doctor, whereas it is also a fact that blood flows in veins & it is not lying in the body or in the stomach at one place.
(vii).Blood was found smeared on baniyan, which is an upper portion as compared to the lower portion where underwear/ Kachha is put. Witness PW8 Dr. C. B. Dabas was also cross examined about the physical position of Jagan Nath when he received injuries, however, witness PW8 Dr. C. B. Dabas answered that no definite opinion can be given.
12.5 The point of knife is being considered in the present paragraph. The following is status of evidence:
(i).Ld. defence counsel has rightly pointed out that margin witness Ct. Ravish has not been examined as a witness nor arrayed as a witness & witness PW20 SI K. S. Dogra, the second Investigating Officer, has not deposed anything with regard to recovery of knife in his presence despite he is a margin witness to the seizure memo Ex. PW10/C. However, PW ASI Dharambir Singh, a margin witness to the seizure memo & inspector S. K. Sharma, S.C. No. 50/2007 Page 34 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 Investigating Officer, who prepared the seizure memo have appeared in the witness box as PW10 & PW19 respectively. The seizure memo was prepared subsequent to the arrest of accused persons.
(iii).It is also matter of record that witness PW8 Dr. C. B. Dabas was asked to give opinion in respect of the injuries on the body of the deceased Jagan Nath & the weapon knife & PW8 could not give any conclusive opinion by citing reason of surgical intervention, like cutting & repairing of injuries.
(v).It is also matter of record that no chance prints were tried to be gathered from the knife, otherwise, the same were not warranted since the place of recovery of knife was not the spot but a place other than the spot & recovery was also effected at later point of time.
(vii).The FSL result opines negative opinion of blood on the knife but positive opinion in respect of baniyan. It has been construed on behalf of accused that the negative opinion means absence of blood but witness PW17 was not cross examined in respect of her report that the negative means absence of blood. Otherwise, it can also be construed from the report that negative opinion means the blood traced was not feasible to be examined & report.
(ix).In seizure memo Ex. PW10/C, the knife was stated as folding knife having total length of 18.5 cm (blade of 8.5 cm & handle of 10 cm) & doctor witness PW8 in his S.C. No. 50/2007 Page 35 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 opinion/report/sketch Ex. PW8/C, the length of knife is stated as 8.2 cm & handle of 10 cm. Whereas the report Ex. PW8/B reflects the seal & description of knife as explained in seizure memo Ex. PW10/C visavis other features of the knife but there is difference of measurement. The witness PW8 measures length of blade of 8.2 cm from point A to B & length of handle 10 cm from point B to C. The knife has a curved face, as appearing from the sketch. Otherwise, there appears to be some omissions as point A to B is 8.5 cm by measuring with the standard scale.
(xi).There is no expert opinion that knife (P.3) was the weapon of offence for the injuries on the body of Jagan Nath. Witness PW8 was specifically asked about not less than minimum 6 inch length of the blade for the impugned injuries & it was answered that the blade of knife was around 5 inch for causing the injuries. However, as per MLC Ex. PW6/A, there was penetrating wound & as per postmortem report Ex. PW8/A there was stab injuries. In the first information from PCR call recorded as Ex. PW13/A, a sharp point object was recorded as a weapon of offence used in assaulting Jagan Nath. The material on record establishes that Jagan Nath received the injuries by stab injuries.
12.6 Jagan Nath died in Hindu Rao Hospital, Delhi on 10.03.2006 at about 3.28 pm, his postmortem was carried on 11.03.2006 at 1.30 pm. What was the cause of his death, let us S.C. No. 50/2007 Page 36 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 scrutinize the evidence. In MLC Ex. PW6/A penetrating wound on left side of abdomen (2 x 6 x 1 cm) was observed, Jagan Nath was referred to Surgery Department & then to Hindu Rao Hospital, Delhi for further examination & management but he died. In his postmortem report Ex. PW8/A 5 injuries have been recorded, out of them the injury No.5 was therapeutic surgical wound & injuries No.2, 3 & 4 are abrasions & injury No.1 is stab injuries. The injury No.1 is sufficient to cause death in the ordinary course of nature & it has been opined being caused a sharp edge weapon. Thus, it is apparent that the said Jagan Nath died of injury No.1, which was sufficient in the ordinary course of nature.
12.7 Ld. defence counsel has analyzed provisions of section 299 IPC of Culpable Homicide with the provisions of Murder under section 300 IPC that neither the case fulfills the requirement of either of the sections nor the circumstances fall in any of the exceptions nor section 304 IPC is attracted. In order to appreciate the contentions, the law declared in precedent/case law & comparative table of section 299 IPC & section 300 IPC are reproduced as follows: S.C. No. 50/2007 Page 37 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006
(i).Baldev Singh & Anr. Vs State of Punjab 1995 SCC (Crl.) 1132 - while discussing the situation of offence of "murder" or "culpable homicide not amounting to murder", it was held 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 has 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 the act of the accused amounts to "culpable homicide" as denied in section 299 IPC. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300 IPC 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 section 300 IPC. 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 the second part of the section 304 IPC, depending, respectively, on whether the second or the third clause of section 299 IPC is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in section 300 IPC the offence would be still be 'culpable homicide not amounting to murder' punishable under the first part of section 304 IPC.
(ii).Budhi Lal Vs State of Uttarakhand 2009 Crl. L. J 360 - in paragraph 13 of the judgment, a table was drawn in order to highlight the ingredients of section 299 & section 300 IPC, the same is reproduced here under: S.C. No. 50/2007 Page 38 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 Section 299 IPC Section 300 IPC As person commits culpable Subject to certain exceptions homicide if the act by which the culpable homicide is murder if the death is caused is done act by which the death is caused is done INTENTION
(a) with the intention of causing (1) with the intention of causing death; or death; or
(b) with the intention of causing such (2) with the intention of causing such bodily injury as is likely to cause bodily injury as the offender knows death; or to be likely to cause the death of the 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 that the act is (4) with the knowledge that the act is likely to cause death. so immediately 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 causing death or such injury as is mentioned above.
By reading the statement of witnesses PW1, PW2 & the S.C. No. 50/2007 Page 39 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 statement of doctor witness PW8 along with postmortem report Ex. PW8/A, certain facts are emerging, which do not decipher that the things happened at the spur of moment. The injury No.1 is in the abdomen, the injury No.2, & 3 on left foot and leg & injury No.4 on left shoulder. It infers that physical fight had occurred & that is why there are other injuries on the body, besides stab injuries in the abdomen. Witnesses PW1 & PW2 have also elucidated about the screaming heard as well as scene seen by them.
13.1 Taking into account the analysis, conclusions drawn & the reasons assigned in the aforementioned paragraphs, it is established that Jagan Nath had died because of stab injury, referred as injury No.1 in the postmortem report Ex. PW8/A, which was sufficient in the ordinary course of nature to cause death & MLC Ex. PW6/A also talks of omentom because of injuries sustained to Jagan Nath. Witnesses PW1 & PW2 are the spot witnesses, they have seen the accused persons assailants of Jagan Nath & they also saw at the time of incident accused Joginder @ Sushe took out a knife from his pocket & assaulted in the abdomen of Jagan Nath when other accused Kishan Lal hold of S.C. No. 50/2007 Page 40 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 Jagan Nath. The evidence on record satisfies the requirement of clause (b) of section 299 IPC read with clauses (2) & (3) of section 300 IPC, shown in the aforementioned table. The weapon of offence was taken out of the pocket by the accused Joginder @ Sushe, meaning thereby he was keeping it with him & it also reflects that they have intention to cause injuries to Jagan Nath & also killed him. As discussed earlier, despite there is no finite opinion by witness PW8 Dr. C. B. Dabas in respect of nexus of knife (P.3) with the injuries on the body of Jagan Nath, it would not exonerate the accused persons from their culpability as injuries are stab injuries. There is mention of use of weapon even in the first information in PCR FormI Ex. PW13/A. The case does not fall in any of the exceptions of section 300 IPC.
13.3 Section 34 of IPC does not create a substantive offence or a separate punishment, it is rule of evidence. It deals with the doing of separate acts (similar or diverse) by several persons, if all are done in furtherance of common intention, each person is liable for the result of them all as if he had done them himself. S.C. No. 50/2007 Page 41 of 42 State vs. Joginder @ Sushe & Ors. FIR No. 176/2006 13.5 Witness PW2 Smt. Sunita was recalled for her cross examination by order dated 14.06.2010 on the application of accused under section 311 Cr.P.C & she was examined on 17.07.2010; she was recalled to establish that because of enmity, the accused persons have been implicated falsely, since there was a grudge in her mind against the accused Joginder @ Sushe & his parents. However, at this stage of final arguments nothing was whispered, otherwise, deceased Jagan Nath was husband of witness PW1 Smt. Punita. Lastly, it would not demerit the case of the prosecution case for want of establishing motive of crime since witnesses PW1 & PW2 are the spot & natural witnesses.
14. Hence, both the accused persons Joginder @ Sushe & Krishan Pal @ Bobby are held guilty under section 302/34 IPC.
(Announced in the open (INDER JEET SINGH)
Court on 19.08.2010) ADDL. SESSION JUDGE
WEST DISTRICT, TIS HAZARI COURTS
NP DELHI
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