Delhi District Court
Fir No. 759/15 State vs . Mohan Lal And Anr. Page No. 1 Of 36 on 13 May, 2022
IN THE COURT OF NAVEEN GUPTA,
ADDL. SESSIONS JUDGE - 05, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-004980-2018
SC No. 379/18
FIR No. 759/15
PS Farsh Bazar
Under Sections 302/34 IPC
In the matter of:
The State
Versus
(1) Mohan Lal
S/o Late Sh. Ram Sumer
R/o 486/1, Gali No. 1, Bhola Nath Nagar,
Shahdara, Delhi. ... Accused no. 1
(2) Sheela
W/o Sh. Ram Jatan
R/o F-2/199-200, Sunder Nagri,
Delhi. ... Accused no. 2
Date of institution : 26.07.2018
Date of reserving the judgment : 29.04.2022
Date of judgment : 13.05.2022
JUDGMENT
1. The criminal law was set in motion with DD No. 17-A (Ex.PW-18/A) dated 09.09.2015, whereby it was recorded that Saraswati w/o Mohan Lal, who was beaten by her husband on 08.09.2015, has been admitted in Hedgewar Hospital. On receipt of the said DD, SI Bhagat Singh (PW-13) FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 1 of 36 PS Farsh Bazar reached Dr. Hedgewar Hospital with Ct. Satya Pal (PW-9), where PW-13 collected the MLC of injured Saraswati. She was unconscious. She died during her treatment and DD No. 19-A (Ex.PW-18/B) dated 09.09.2015 was recorded in this regard. PW-13 sent the dead body to mortuary through Ct. Satish (PW-10). He (PW-13) informed the SHO and collected the death certificate of Saraswati (hereinafter referred as 'deceased'). SHO reached the hospital, where the daughter of deceased namely Seema (PW-1) met him and got her statement (Ex.PW-1/A) recorded. PW-13 made an endorsement and prepared a tehrir (Ex.PW-13/A). He sent PW-9 to the police station for registration of FIR. Thereafter, further investigation was handed over to SHO.
2. In her statement, PW-1 had stated that they are eight sisters and brothers i.e. four sisters and four brothers. His father used to run a dairy and had private work also. Her mother/deceased used to do household work. About 18-20 years ago, his father Mohan Lal (hereinafter referred as 'accused no. 1' or 'A-1') had brought another lady namely Sheela (hereinafter referred as 'accused no. 2' or 'A-2') in the house. She started residing as 2nd wife of her father. Her father and Sheela used to harass her mother and get all the household and dairy work done by her mother forcefully. Her father used to beat her mother. A-1 used to hate her mother and at the instance of A-2, he used to beat her.
3. PW-1 had further stated that on 08.09.2015 at 7.00 a.m., when her mother was doing dairy work, at that time, A-1 came there and started abusing and beating her mother. He gave 2-3 fist blows on her chest. In the meantime, A-2 also came there and told A-1 that her mother was FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 2 of 36 PS Farsh Bazar harassing her (A-2). Thereafter, A-1 became annoyed and out of anger, he caught hold of neck of her mother and banged her head in the wall. PW-1 tried to intervene and save her, then, A-1 pushed her (PW-1). When she (PW-1) raised alarm, her brother Sanjay (PW-6) came there. He got her mother rescued with great difficulty. A-1 was saying in anger that he would have killed her mother that day. He again caught hold of her hairs and banged her head in the wall. Her mother fell down and she was in pain. Thereafter, PW-6 brought medicines from a medical store.
4. PW-1 had further stated that today (i.e. on 09.09.2015), her mother was having a lot of pain, due to which she took her for getting X-Ray done near Swarn Cinema and after having got medicine prescribed, she brought her at home at 3.00 p.m. Upon her return to the house, A-1 again started beating her mother with fist blows and her mother again started crying with pain. Thereafter, she went to call her brother Rahul (PW-5). When she came back, she saw that A-2 was also beating her mother. They tried to intervene and saved her mother. In the evening, her mother was unwell. Seeing her condition, they took her to Dr. Hedgewar Hospital for treatment. She was admitted in the hospital. She was crying with pain. After sometime, she expired.
5. During further investigation, Insp. Harish Chander (PW-18) alongwith PW-13 and other police officials and children of deceased namely Seema, Rahul and Sanjay reached the place of incident i.e. House No. 486/1, Gali no. 1, Bhola Nath Nagar, Shahdara, Delhi. PW-18 prepared site plan (Ex.PW-18/C) at the instance of PW-6. The accused persons were not found at the spot. PW-18 recorded the statements of Sanjay (PW-6), FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 3 of 36 PS Farsh Bazar Rahul (PW-5) and other police officials. In the intervening night of 09/10.09.2015, on information given by PW-13, PW-18 reached the house of A-1 and he was arrested at the instance of PW-1, vide memo Ex.PW-1/D. His personal search was conducted vide memo Ex.PW-1/E and his disclosure statement (Ex.PW-11/D) was recorded. On 10.09.2015, postmortem of the deceased was got conducted. Dead body of deceased was handed over to her next kin. Subsequently, on receipt of secret information, A-2 was apprehended vide memo Ex.PW-17/A. Her personal search was conducted vide memo Ex.PW-17/B.
6. During further investigation, PW-18 collected PCR form (Ex.PW-11/A), CDR and CAF of mobile phone of caller, who had made call at 100 number and also recorded her statement. After completion of investigation, challan was filed by Insp. Sunil Kumar Sharma (PW-16).
7. After compliance of provision under Section 207 Cr.P.C., Ld. MM, Shahdara, Karkardooma Courts, Delhi, committed the case to the Court of Sessions vide order dated 12.07.2018.
8. Vide order dated 22.10.2018, charge was framed against both accused persons under Sections 302/34 of the Indian Penal Code (for short 'IPC') to which they pleaded not guilty and claimed trial.
9. In support of its version, the prosecution examined nineteen witnesses.
PW-1 is Seema/daughter of deceased. She deposed that A-2 used to visit their house as a maid. She resided in Nand Nagri and she (PW-1) was not aware about her (A-2) residential address. On 08.09.2015 at about 7.00 FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 4 of 36 PS Farsh Bazar a.m., deceased was coming down from the stairs. She slipped and sustained injuries. Her brother Sanjay had brought some medicines from a chemist shop. Since the deceased was not relieved by the medicines, she had taken her to a doctor by the name of Hira Lal. The said doctor had prescribed medicines and also advised X-Ray. She had taken her mother for the X-Ray near Swarn Cinema. Thereafter, she and her brother Sanjay took the deceased to Dr. Hedgewar Hospital for further treatment. The deceased expired in the hospital on 09.09.2015. She further deposed that police met her and obtained her signatures on 3-4 blank papers. She was cross-examined by Ld. Addl. PP for the State, wherein she denied the suggestions regarding the aspects mentioned in her statement recorded by the police as Ex.PW-1/A. However, she tendered the receipt (Ex.PW-1/C) and prescription (Ex.PW-1/B) regarding medical treatment of her mother in respect of X-Ray chest.
10. PW-2 is ASI Sonu Kaushik. He tendered scaled site plan as Ex.PW-2/A prepared at the instance of Sanjay (PW-6). PW-3 is ASI Jitender/Duty Officer. He tendered FIR no. 759/15 as Ex.PW-3/B and rukka as Mark- PW-3/A.
11. PW-4 is Sohan Lal/brother of A-1. He deposed that on 09.09.2015 at night, Sanjay (PW-6) called him on his mobile and told about the death of deceased. PW-6 told him to come to PS Farsh Bazar straightaway. Thereafter, he went to PS Farsh Bazar. On the next day, he went to mortuary and identified the dead body of her sister-in-law/deceased. He tendered identification statement in this regard as Ex.PW-4/A and receipt of handing over of dead body as Ex.PW-4/B. He further deposed that he FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 5 of 36 PS Farsh Bazar stayed separately from his brother/A-1 since 2005. A-1 was married to deceased, but he brought another woman Sheela (A-2) to the house. Due to this, quarrels and fights started between A-1 and deceased. He (PW-4) also tried to pacify and make A-1 understand, but to not use. On the contrary, A-1 used to get annoyed whenever he tried to make him understand that this was not right. Then, PW-4 stopped talking to A-1 thinking that when he was not inclined to listen to anyone, what was the point to talk to him. He was cross-examined on behalf of the accused persons.
12. PW-5 is Rahul/son of deceased. He stated that on 08.09.2015 at about 7.00 or 7.15 a.m., when he was sleeping, he heard some noise and got up. He rushed downstairs. He saw that the deceased had slipped from stairs while she was mopping the floor. He had not seen her slipping. When he reached the stairs, he saw that Seema (PW-1) and Sanjay (PW-6) were helping the deceased to stand up. PW-6 went to medical store to bring medicine. But the deceased had no relief till 12.00 or 1.00 p.m. He (PW-5) and PW-1 took the deceased to one private doctor Hira Lal at his clinic located in Chhote Bazar. He also gave medicines, but the deceased did not get any relief. Next day, he and PW-1 took the deceased for X-Ray near Swarn cinema. The X-Ray revealed that there was no fracture. They brought her back to home. The deceased was still in pain. In the evening around 6.00 p.m., he and PW-1 took the deceased to Hedgewar Hospital by cycle rickshaw. After about half an hour or so, the deceased died. He further stated that, A-2 only worked as an employee at their family shop of earthen pots. He further deposed that A-1 and A-2 had no role to play FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 6 of 36 PS Farsh Bazar in the death of deceased. He was cross-examined by Ld. Addl. PP for the State.
13. PW-6 is Sanjay/son of deceased. He deposed that A-1 is his father. A-2 worked in their shop. His mother/deceased expired as she was sweeping the staircase and her leg slipped. She fell down and became injured and expired due to her injuries. She had fallen down from the staircase, which was of the height of one floor. The deceased had fallen down on 08.09.2015 at about 7.00 a.m. and at that time, he was present in his house. He was sitting in the gali outside his house at that time. At about 8.00 a.m., he had gone to medical store and brought medicines for the deceased. Thereafter, as deceased did not get relief till the next day, he and PW-1 took the deceased to the clinic of Dr. Hira Lal. He again stated that he had taken the deceased to doctor on 08.09.2015 itself. The doctor checked the deceased and wrote for X-Ray. On 09.09.2015, PW-1 took the deceased for X-Ray near Swarn cinema. When the deceased did not get relief, she was taken to Dr. Hedgewar Hospital by PW-1 and PW-5. The deceased expired in hospital at around 6.00 - 7.00 p.m. He tendered inquest proceedings as Ex.PW-6/B, panchnama regarding identification of dead body as Ex.PW-6/C and Ex.PW-6/D, handing over of dead body vide memo Ex.PW-6/E. He was cross-examined by Ld. Addl. PP for the State.
14. PW-7 is Anita Prajapati/neighbour of deceased. She deposed that she knew both the accused persons as they were her neighbours. A-2 was also residing in the house with A-1 for last about 16-17 years. She did not use to converse with A-2. She was a wrong kind of woman. She had ruined FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 7 of 36 PS Farsh Bazar the house of a married woman and one should not talk with her. She (PW-7) used to often meet the deceased, whenever she used to come outside of her house. They were having a common wall. Both the accused persons used to beat the deceased. The root cause was that A-2 had been brought to stay in the same house by A-1. He came after her with a rope to strangulate her. She (deceased) slipped on the stairs with each leg going apart and she fell on the lid of sewer. A-1 then hit her with a brick. She was pregnant at that time. She went to her village and gave birth. There were so many incidents of violence inflicted on the deceased. On most of such incidents, she (PW-7) used to lodge the complaint by making call at 100 number. Response by police used to be very poor on many occasions.
15. PW-7 has further deposed that on 08.09.2015, there was a similar incident, when she heard the screams of deceased. She was being beaten up by both A-1 and A-2. She ran out and came to the gali. They were beating her mercilessly. That day, probably she got one of her ribs damaged, as a result of which, she was going on passing motion, spread all over. Her children took her to the hospital. Even the children of A-1 were facing a very bad time at the hands of A-2. They had to face a beating even if they asked for Rs.10 and they got a very bad atmosphere to develop, as a result of which, one of them had even turned out to be an anti-social element and facing criminal case.
16. PW-7 has further deposed that on the next day also, before the deceased was taken to hospital, the accused persons had beaten her up more. The children of A-1 returned from the hospital later on and told that deceased had died. On that day i.e. 09.09.2015, she made a call at 100 number from FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 8 of 36 PS Farsh Bazar mobile phone number 9899353234, which was registered in the name of her husband. She further deposed that the deceased had expired due to the beatings given by the accused persons. The deceased was treated like an animal by them. She was cross-examined on behalf of the accused persons.
17. PW-8 is HC Ankit Tomar. He stated that on 07.11.2015, on instructions from PW-18/IO, he brought PM report and inquest papers from Aruna Asaf Ali Hospital and handed over the same to the Investigating Officer (for short 'IO').
18. PW-9 is HC Satya Pal. He submitted about the steps taken by 1st Investigating Officer/PW-13 during initial investigation conducted by him. He has further deposed that Seema/PW-1 had stated in her statement to the IO that her father and mother Sheela were responsible for the death of Saraswati. He was cross-examined on behalf of the accused persons.
19. PW-10 is Ct. Satish. He submitted about the steps taken by 1st Investigating Officer/PW-13 and 2nd Investigating Officer/PW-18 during investigation conducted by them. He further stated that the concerned doctor in the hospital handed over to him a sealed envelope duly sealed with the seal of hospital and the same was handed over by him to the IO vide seizure memo Ex.PW-10/A.
20. PW-11 is HC Ghanshyam. He tendered the PCR form regarding call received on 09.09.2015 at 10.33 p.m. from mobile number 9899353234 as Ex.PW-11/A. PW-12 is Ct. Praveen Kumar. He tendered DD No. 84-B FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 9 of 36 PS Farsh Bazar dated 09.09.2015 informing that one person had beaten a lady to death and DD No. 88-B informing that police had not taken any action on their complaint, as Ex.PW-12/A and Ex.PW-12/B respectively. PW-13 is SI Bhagat Singh/1st Investigating Officer. He submitted about the steps taken during initial investigation conducted by him. He tendered rukka, Ex.PW-13/A.
21. PW-14 is Dr. A.S. Bajwa, Specialist, Forensic Medicine, Aruna Asaf Ali Government Hospital, Delhi. He tendered postmortem report of the deceased as Ex.PW-14/A. To the question put to him by the Court that how did he reach to a conclusion that injury was apparently homicidal, he (PW-14) replied that since there were bruise marks on the body, which were possible only by blunt force impact and there was injury on the left lower side of the chest which caused injury to the spleen which was possible only by blunt force impact, such as fist blow etc., therefore, he concluded that the injury was homicidal. To another question put by the Court that whether such injuries were possible by fall from stairs, he replied in negative and stated that because in such cases the deceased would be having abrasions and other associated injuries in the bony prominence and frontal aspect of the limbs and joints which were absent in the present case.
22. PW-15 is ASI Bhagwat Singh/duty constable at Dr. Hedgewar Hospital. He stated that on 09.09.2015 at about 6.52 p.m., deceased was admitted in the hospital by her son Rahul for treatment and she was treated vide MLC no. 2926/18. Rahul had told him that the deceased had been beaten by his father a day before. He (PW-15) informed about the admission of FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 10 of 36 PS Farsh Bazar deceased to PS Farsh Bazar vide DD No. 17-A dated 09.09.2015. She died during her treatment and he informed about her death to the PS vide DD no. 19-A dated 09.09.2015.
23. PW-16 is Insp. Sunil Kumar Sharma. He stated that he collected final result upon the MLC of deceased. Thereafter, on completion of investigation, he filed charge-sheet of the present case against the accused persons. PW-17 is W/Ct. Pinki. She tendered arrest memo of A-2 as Ex.PW-17/A and her personal search memo as Ex.PW-17/B.
24. PW-18 is Retd. Insp. Harish Chander. He submitted about steps taken during further investigation conducted by him. He tendered DD no. 17-A as Ex.PW-18/A, DD no. 19-A as Ex.PW-18/B, site plan as Ex.PW-18/C, disclosure statement of A-1 as Ex.PW-18/D, application for conducting postmortem examination of the deceased as Ex.PW-18/E and certificate under Section 65B of the Indian Evidence Act in respect of PCR form as Ex.PW-18/F.
25. PW-19 is Sanjeev Kumar/nephew of A-1. He stated that A-1 is his maternal uncle. The deceased was his wife. A-1 and deceased had 4 sons and 4 daughters. He (PW-19) had an electric shop at a distance of about 400 meter from the house of A-1 and he (PW-19) used to visit his house. He (PW-19) knew A-2 as she used to reside in the house of A-1. A-2 was doing the domestic work and also used to help A-1 in preparing the pots etc. A-1 also used to sell milk etc. as he was doing dairy work. He further deposed that he did not know any other happening in the house of A-1. During his cross-examination conducted by Ld. Addl. PP for the State, he FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 11 of 36 PS Farsh Bazar admitted the suggestion put to him that the deceased objected against A-2, who was residing in her house.
26. During trial, on 26.08.2019, the accused persons admitted the CDR and CAF as well as certificate under Section 65-B of the Indian Evidence Act in support thereof for mobile number 9899353234 as Ex.C-1, death summary as Ex.C-2, death certificate as Ex.C-3 and MLC of deceased as Ex.C-4.
27. After conclusion of the prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C., wherein they claimed themselves to be innocent. Accused Mohan Lal has stated that he had cordial relations with his wife (deceased). He further stated that the accused Sheela did not reside in their house. Accused Sheela has stated that she used to work at the shop of Mohan Lal. There was no quarrel between Mohan Lal and Saraswati (deceased) due to her. The accused persons did not opt to lead evidence in their defence.
28. I have heard final arguments from Ld. Addl. PP for the State and Ld. Counsel for accused persons.
29. Ld. Addl. PP for the State has argued that PW-1, PW-5 and PW-6 did not support the case of prosecution for the obvious reason that they are children of A-1. However, their testimony has corroborated the testimony of PW-7/neighbour of deceased on some material particulars. Further, PW-7 has categorically deposed that not only the accused persons used to harass and beat the deceased prior to the impugned incident, but they had FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 12 of 36 PS Farsh Bazar beaten her on 08.09.2015 and 09.09.2015 too. Her testimony has been supported by the postmortem report of deceased and the testimony of PW-14, who had conducted the postmortem examination. Thus, the prosecution has proved its case against the accused persons beyond reasonable doubt.
30. Ld. Counsel for accused persons has argued that first of all, material witnesses i.e. PW-1, PW-5 and PW-6 did not support the case of prosecution. Further, the testimony of PW-7 is not trustworthy, as her statement under Section 161 Cr.P.C. had been recorded after almost two months of the alleged incident. Furthermore, she has herself stated that her gold chain had been stolen by the daughter of A-1. This leads to infer that she has deposed against the accused persons out of vengeance. Furthermore, the prosecution has failed to prove the ingredients of offence punishable under Section 302 IPC against the accused persons. Thus, the prosecution has failed to prove its case against them.
31. Now, the Court proceeds to examine the testimonies of prosecution witnesses and take up the arguments advanced by Ld. Addl. PP for the State and Ld. Counsel for accused persons one by one.
32. In the present case, the prosecution has examined the complainant/ daughter of the deceased and A-1 as PW-1. Though in her statement (Ex.PW-1/A) given to the police, on the basis of which present FIR (Ex.PW-3/B) had been recorded, she had given a detailed narration of the events leading to the death of her mother. But, in her testimony as PW-1, she has deposed that on 08.09.2015 at about 7.00 a.m., her mother was FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 13 of 36 PS Farsh Bazar coming down from the stairs and she slipped and sustained injuries. However, she has deposed about the aspects of taking the deceased to a doctor by the name of Hira Lal and further taking her for the X-Ray near Swarn cinema and thereafter, to Dr. Hedgewar Hospital for further treatment. It is pertinent to note that she admitted her signature on her statement, Ex.PW-1/A, but she deposed that police obtained her signatures on 3-4 blank papers.
33. Similarly, PW-5/son of deceased and A-1 deposed that on 08.09.2015 at about 7.00 or 7.15 a.m., when he was sleeping, he heard some noise and got up. He rushed downstairs. He saw that deceased had slipped from stairs while she was mopping the floor. He had not seen her slipping. When he reached the stairs, he saw that PW-1 and PW-6 were helping the deceased to stand up. During his cross-examination conducted by Ld. Addl. PP for the State, he denied the suggestions put to him that he had made statement to the IO that PW-1 had apprised him that on 08.09.2015 at about 8.00 a.m., deceased had been beaten by the accused persons.
34. Further, PW-6/son of deceased and A-1 deposed that deceased expired as she was sweeping the staircase and her leg slipped. She fell down and became injured and expired due to her injuries. She had fallen down from the staircase, which was of the height of one floor. The deceased had fallen down on 08.09.2015 at about 7.00 a.m. and at that time, he was present in his house. He was sitting in the gali outside his house at that time. During his cross-examination conducted by Ld. Addl. PP for the State, he stated that he did not give statement to the IO that on 08.09.2015 at about 7.00 a.m., he had seen A-1 beating the deceased on her chest and FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 14 of 36 PS Farsh Bazar stomach by his hands and he had caught hold of hairs of deceased and was banging her head on the wall. Further, A-2 was standing there and instigating A-1 to beat the deceased.
35. From the above-mentioned versions of PW-1, PW-5 and PW-6, it is clear that they had not supported the case of prosecution in the manner presented by it. The Court is in agreement with submissions made by Ld. Addl. PP for the State that the reason for their turning hostile is obvious that they were to depose against their father A-1, while they had already lost their mother/deceased. The inconsistency shown by PW-1, PW-5 and PW-6, while deposing as to how the deceased had slipped from the staircase, itself leads to infer that they had not been speaking the truth before the Court regarding the cause of death of their mother or in other words, how their mother had sustained injuries. PW-1 has stated that the deceased was coming down from stairs and she slipped. PW-5 stated that he saw the deceased had slipped from the stairs while she was mopping the floor. While, PW-6 stated that the deceased expired as she was sweeping the staircase and her leg slipped. PW-1, PW-5 and PW-6 were admittedly present in the house, but they have given version different from each other on the aspect as to what was the deceased doing, when she slipped.
36. Above all, the falsity of their version that deceased had slipped from the staircase came on record with the testimony of PW-14. The Court put a specific question to PW-14/doctor who conducted postmortem examination of the deceased that whether such injuries were possible by fall from stairs. PW-14 answered that 'no, because in such cases the FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 15 of 36 PS Farsh Bazar deceased would be having abrasions and other associated injuries in the bony prominence and frontal aspect of the limbs and joints which were absent in the present case'. Thus, it is made out that PW-1, PW-5 and PW-6 did not give true narration of the manner of impugned incident which led to the death of deceased.
37. In respect of appreciation of testimony of hostile witness, this Court stands guided by the precedent laid down by Hon'ble Supreme Court in Radha Mohan Singh @ Lal Saheb v. State of U.P., AIR 2006 SC 951, wherein the Court has held that:
7. [I]t is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.
38. The above precedent makes it clear that the testimony of hostile witness does not get washed off, but the same can be accepted to the extent his version is found to be dependable. Thus, the version of PW-1, PW-5 and PW-6 which is reliable can be taken into consideration. It is worth noting that PW-1, PW-5 and PW-6 have deposed about the time of injuries caused to the deceased on 08.09.2015 as at about 7.00 a.m.
39. Further, all of them have stated that PW-6 had brought medicines for the deceased from a chemist shop. Further, PW-5 stated that when the deceased did not get any relief, he and PW-1 took the deceased to one private doctor Hira Lal. PW-6 has stated that he and PW-1 took the deceased to the clinic of Dr. Hira Lal on 08.09.2015 itself. The doctor FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 16 of 36 PS Farsh Bazar prescribed for X-Ray. PW-1 did not specifically depose about the date as to when the deceased was taken by her to the doctor Hira Lal. However, she has deposed about visit to Dr. Hira Lal and his advise to get X-Ray done. Thus, the abovesaid versions of PW-5, PW-6 and PW-1 make out that on 08.09.2015, when the deceased did not get relief by the medicine brought by PW-6, then she was taken to the doctor named Hira Lal for treatment.
40. Further, PW-5 has deposed that next day [i.e. 09.09.2015], he and PW-1 took the deceased for X-Ray near Swarn cinema. The X-Ray revealed that there was no fracture. They brought her back home. The deceased was still in pain. In the evening around 6.00 p.m., he and PW-1 took the deceased to Hedgewar Hospital. PW-6 has deposed that on 09.09.2015, PW-1 took the deceased for X-Ray near Swarn cinema. When the deceased did not get relief, she was taken to Dr. Hedgewar Hospital by PW-1 and PW-5. Further, PW-1 deposed that she had taken the deceased for X-Ray near Swarn cinema. Thereafter, she and PW-6 had taken the deceased to Dr. Hedgewar Hospital for further treatment. PW-1 has tendered the receipt Ex.PW-1/C and prescription Ex.PW-1/B for the X-Ray chest PA of the deceased conducted on 09.09.2015. Further, in the MLC of deceased, it has been observed that deceased had been brought to hospital by Rahul/son on 09.09.2015 at 6.52 p.m. From the abovesaid versions of PW-1, PW-5 and PW-6, it is made out that the deceased had been taken for X-Ray chest at diagnostic centre on 09.09.2015 and later on, she was taken to Dr. Hedgewar Hospital, where she expired.
FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 17 of 36 PS Farsh Bazar
41. Now, the Court proceeds to examine the testimony of neighbour of the deceased/PW-7. She has deposed that A-2 was residing in the house with A-1 for last about 16-17 years. The testimony of PW-7 had been recorded on 16.04.2019, meaning thereby, A-2 must have been residing in the house of A-1 since the year 2002-2003. The Court wishes to examine the veracity of this version at this stage itself, as the accused persons have disputed, in their statements recorded under Section 313 Cr.P.C., that A-2 was residing in the house of A-1. First of all, PW-7 has given detailed narration about quarrels occurred in the house of A-1 and deceased due to living of A-2 in their house.
42. Besides this, it is worth noting that PW-4/brother of A-1 has deposed that he stayed separately from his brother (A-1) since 2005. A-1 was married to the deceased, but he brought another woman Sheela (A-2) to the house. Due to this, quarrels and fights started between A-1 and deceased. He (PW-4) also tried to pacify and make A-1 understand, but to no use. On the contrary, A-1 used to get annoyed, whenever he tried to make him understand that this was not right. Then, PW-4 stopped talking to A-1 thinking that when he was not inclined to listen to anyone, what was the point to talk to him. During his cross-examination conducted on behalf of the accused persons, PW-4 stated that at the relevant time, when A-1 had brought A-2 to the house, he (PW-4) was still residing alongwith A-1. To the question put to him by the Court that since when A-1 had started to bring A-2 to house, he replied that it was 2-3 years prior to 2005. During his cross-examination, the accused persons could not bring anything on record to create doubt on his testimony on this aspect. From the abovesaid FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 18 of 36 PS Farsh Bazar version of PW-4, it is made out that A-2 had been residing in the house of A-1 since the year 2002-2003. Thus, the testimony of PW-4 has corroborated the version of PW-7 on the aspect as to since when A-2 had been residing in the house of A-1 and further that there had been quarrels between the deceased and A-1 due to such reason.
43. PW-19/nephew of A-1 has also deposed that he knew A-2 as she used to reside in the house of his maternal uncle/A-1. During his cross- examination conducted by Ld. Addl. PP for the State, he admitted the suggestion put to him that his maternal aunt/deceased objected against A-2, who was residing in her house. The abovesaid version of PW-19 was not controverted by the accused persons, when an opportunity was granted to them to cross-examine him. This provides further corroboration to the version of PW-7 on this aspect.
44. Before proceeding further to scrutinize the testimony of PW-7 in respect of culpability of the accused persons regarding commission of the impugned offence, the Court wishes to take up the arguments of Ld. Counsel for accused persons that PW-7 is not a trustworthy witness, as firstly, she has touched upon several aspects which were not related to the impugned incident, secondly, she has deviated from her statement recorded under Section 161 Cr.P.C. and further, she had vengeance against A-1.
45. PW-7 has stated that A-2 was a wrong kind of a woman. She had ruined the house of a married woman and one should not talk with her. Further, both the accused persons used to beat the deceased. The root cause was FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 19 of 36 PS Farsh Bazar that A-2 had been brought to stay in the same house by A-1. He came after her with a rope to strangulate her. She (deceased) slipped on the stairs with each leg going apart and she fell on the lid of sewer. A-1 then hit her with a brick. She was pregnant at that time. She went to her village and gave birth. There were so many incidents of violence inflicted on the deceased. On most of such incidents, she (PW-7) used to lodge the complaint by making call at 100 number. Response by police used to be very poor on many occasions. Even the children of A-1 were facing a very bad time at the hands of A-2. One of them had even turned out to be an anti-social element.
46. It is correct that the abovesaid version of PW-7 is not specifically related with the impugned incident which was stated to have occurred on 08.09.2015 and 09.09.2015. However, it is worth noting that PW-7 has provided a narration about previous conduct of accused persons towards the deceaed and specifically, about an earlier incident of beating given by A-1.
47. In her cross-examination, PW-7 has deposed that there were countless of such incidents, which had occurred in her presence and on each occasion, she had called up 100 number. She could not remember the specific dates or months of such incidents. She has further stated that it had been many years and there were many such incidents. She had not been able to take the deceased to PS at all as the accused persons always beat her and prevented her from going to PS. She further stated that she had no documentary proof of such complaints as they were received by the FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 20 of 36 PS Farsh Bazar police. She voluntarily stated that there would be record of all the calls she made to the PCR on many occasions.
48. It is pertinent to note that it is not disputed by the accused persons, during cross-examination of PW-7, that she is having a common wall with the house of A-1 and deceased. Being the next door neighbour, PW-7 must have occasion to observe at least some incidents of beatings occurring in the house of A-1 and deceased. Further, PW-7 has also claimed that she used to often meet deceased whenever she used to come outside of her house. Thus, PW-7 has explained as to in what manner she might have gained knowledge about previous beatings given to the deceased by A-1 or by both accused persons. Further, from the abovesaid version of PW-7 during her cross-examination, it is made out that she remained firm on the aspect that the deceased had been beaten several times prior to the impugned incident.
49. PW-7 has deposed that she could only see that the police officials used to come and go back. This version cannot be taken as exaggeration or showing enmity towards accused persons. Rather, she has provided a narration of background events elaborating previous conduct of accused persons not only towards the deceased, but also against her children. This version of PW-7 becomes relevant in explaining the mind-set of accused persons while committing present act of assault upon the deceased. No doubt, the witness could be stated to have deposed in outburst of emotions while narrating the previous conduct, but at the same time, it shall be considered that the witness, who could not get any relief from the police in respect of her previous complaints regarding beatings given to the FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 21 of 36 PS Farsh Bazar deceased, found a hope in the forum where her grievances regarding injustice caused to the deceased could be redressed and that is why, she deposed in such a detailed manner. Moreover, her testimony in this regard could have been discredited during her cross-examination as the accused persons had ample opportunity to do so, but the accused persons could not create any dent in her testimony.
50. So far as the argument that PW-7 or the investigation agency did not produce the details of calls allegedly made by PW-7 at 100 number prior to the impugned incident, is concerned. It is worth noting that this was for the investigating agency to collect the said detail and produce the same before the Court. However, just because those details were not produced before the Court, the same does not create any doubt on the testimony of PW-7 on this aspect. The Court is not oblivious of the aspect that sometimes police ignores such calls considering it a family matter or defers taking action for various other reasons such as complainant/wife refuses to proceed further against the husband or wishes to pursue remedy under the Protection of Women from Domestic Violence Act etc.
51. Though PW-18/2nd IO, during his cross-examination, has stated that he did not know whether the lady caller, who had made 100 number call had given any complaint prior to the impugned incident regarding physical violence having been committed by the accused persons against the deceased. However, the said lady caller did not bring any such fact into his notice. It is worth noting that in the MLC of deceased (Ex.C-4), it has been observed that 'alleged history of domestic violence yesterday at around 7.00 a.m.'. Further, in the complaint (Ex. PW-1/A) too, the FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 22 of 36 PS Farsh Bazar complainant had told about previous incidents of domestic violence with her mother at the hands of accused persons. Thus, when such allegations were already in the knowledge of the investigating agency, then it was the duty of IO to collect information about previous such incidents and evidence related to the same. Accordingly, considering the observations made in the preceding paragraphs that the testimony of PW-7 is firm and consistent in this regard, the version of PW-18 does not create any dent in the testimony of PW-7. At this stage, observations made by the Hon'ble Supreme Court in the case of Ambika Prasad (infra), in respect of negligence on part of the investigating officer, become relevant.
52. Ld. Counsel has pointed out that PW-7 has deviated from her previous statement recorded under Section 161 Cr.P.C.. But, it is pertinent to note that during her cross-examination, attention of PW-7 had not been drawn to her previous statement recorded under Section 161 Cr.P.C. for the purpose of any contradiction. In other words, no explanation/clarification was sought from PW-7 in this regard during her cross-examination. Thus, this argument does not provide any favour to the accused persons.
53. It has been argued that statement of PW-7 under Section 161 Cr.P.C. had been recorded by the investigating officer on 07.11.2015 i.e. after almost two months of registration of FIR. It is pertinent to note that PW-7 had made a call at 100 number on the day of death of deceased i.e. 09.09.2015 through the mobile phone of her husband bearing no. 9899353234. Pursuant to which DD no. 84-B (Ex.PW-12/A) had been recorded at 10.42 p.m. This fact has also been narrated by PW-7 in her examination- in-chief. The CDR details of the said number 9899353234, Ex.C-1, also FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 23 of 36 PS Farsh Bazar contain that a call was made at 100 number on 09.09.2015 at 10.33 p.m. Thus, since PW-7 had made a call at 100 number on the day of death of deceased itself informing that a person had killed the lady by beating, it cannot be said that PW-7 was a stranger and she had been planted as a witness to the incident by the investigating agency. So far as argument of Ld. Defence Counsel that her statement had been recorded after two months of registration of FIR is concerned. This may be a lapse on the part of the investigating officer, but entire testimony of PW-7 cannot be brushed aside just because of such lapse.
54. At this stage, the Court stands guided with the precedent laid down by the Hon'ble Supreme Court in Ambika Prasad v. State (Delhi Administration), AIR 2000 SC 718, wherein the Court has held that:
Dealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP, 1995(5) SCC 518 observed that in a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer. Similarly, in Ram Bihari Yadav v. State of Bihar, 1998(2) RCR(Crl.) 403 : 1998(4) SCC 517 para 13 this Court observed :-
"....In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice."
Further in Paras Yadav and others v. State of Bihar, 1999(1) RCR(Crl.) 628 : 1999(2) SCC 126 this Court held :-
"...It may be that such lapse is committed designedly or because of negligence. Hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not....."
FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 24 of 36 PS Farsh Bazar
55. Ld. Counsel has pointed out that during her cross-examination, PW-7 has admitted that on one occasion, daughter of A-1 had stolen her gold chain and the said chain was not recovered. Thus, PW-7 has deposed against A-1 out of vengeance. On other hand, Ld. Addl. PP for the State has submitted that PW-7 has deposed that A-1 had beaten his daughter and had snatched that chain from her. Thus, in the said incident of snatching of chain of PW-7, A-1 had supported her cause. Then, why PW-7 would have any grudge against A-1.
56. First of all, the accused persons have not clarified the date, month and year of the said incident of theft of gold chain of PW-7 by the daughter of A-1. Meaning thereby, it cannot be ascertained as to how much time prior to the present incident, the said incident of theft of gold chain had occurred and could have influenced PW-7 in leveling false allegation against A-1. Moreover, the Court is in agreement with submission made by Ld. Addl. PP for the State that since A-1 had supported the cause of PW-7 in the said incident of theft, thus, there was no reason for PW-7 to level false allegations against A-1. Above all, it is highly improbable that a person would falsely implicate other person alleging commission of murder of his wife by him, just because the child of other person had stolen her valuable article. Furthermore, the Court has already observed that PW-7 has remained firm and consistent during her cross-examination. Thus, this argument too does not hold water that PW-7 has deposed out of vengeance against A-1.
FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 25 of 36 PS Farsh Bazar
57. The observations made in preceding paragraphs show that PW-7 is a natural witness. She has remained firm and consistent during her cross- examination. Accordingly, her testimony is reliable and trustworthy.
58. At this stage, the Court wishes to touch upon the testimonies of PW-1, PW-5 and PW-6 again as there is another angle to look at their testimonies. The death certificate of deceased (Ex.C-3) reflects the time of death as 07.30 p.m. on 09.09.2015. The present FIR (Ex.PW-3/B) was registered on the statement (Ex.PW-1/A) of PW-1 at 10.20 p.m. on 09.09.2015, while rukka (Ex.PW-13/A) had been prepared at 09.50 p.m. itself. It is beyond comprehension that a daughter (PW-1) would falsely name her father (A-1) as one of the assailants soon after the death of her mother. Furthermore, the statements of PW-5 and PW-6 i.e. Ex.PW-5/A and Ex.PW-6/A respectively had also been recorded by PW-18/2 nd IO on the same day i.e. 09.09.2015, wherein they stated about the involvement of the accused persons including their father in the impugned offence. There is no allegation against PW-18 that he had recorded the statements of PW-5 and PW-6, under Section 161 Cr.P.C., on his own or out of any vested interest. It is pertinent to note that testimony of PW-18 to the effect that he had recorded statements of Sanjay (PW-6) and Rahul (PW-5) had not been controverted by the accused persons during his cross-examination.
59. On this aspect, the observations of the Hon'ble Supreme Court in case of Paramjeet Singh @ Pamma (supra) are relevant, wherein the Court held that:
FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 26 of 36 PS Farsh Bazar
41. The witnesses i.e. Ajit Singh (PW.1) and Baljit Singh (PW.2) in their respective depositions have admitted their presence at the place of incident and admitted to suffering those injuries. In their statements under Section 161 Cr.P.C. they have also admitted that they suffered the aforesaid injuries at the hands of the appellant. It was at a later stage that they have denied any role of the appellant. Their statements to that effect are not trustworthy for the simple reason that they failed to offer any explanation for why they assigned the said role to the appellant in their statements under Section 161 Cr.P.C. and why the appellant had been named by Ajit Singh (PW.1) while lodging the FIR. It is relevant to note that the witnesses, namely, Ajit Singh (PW.1) and Baljit Singh (PW.2) have also deposed that after the incident, a Panchayat was convened and it pardoned the appellant.
42. It is evident from the above that the view taken by the courts below, that the eye-witnesses turned hostile because of the decision taken in the Panchayat, pardoning the appellant, does not require any interference. It is also evident from the above that the said eye-witnesses have no regard for the truth and concealed the material facts from the court only in order to protect the appellant, for the reasons best known to them. Such an unwarranted attitude on the part of the witnesses disentitles any benefit to the appellant, who has committed a heinous crime...
48. If the case is considered in the totality of the circumstances, also taking into consideration the gravity of the charges, the appellant had killed his real brother, Inderjit Singh and his nephews, Surender Singh and Saranjit Singh and injured his father Hardayal Singh and nephews Ajit Singh (PW.1) and Baljit Singh (PW.2) in broad day light. The FIR had been lodged promptly, naming the appellant as the person who committed the offence. All the eye-witnesses, including the injured witnesses, attributed the commission of the offence only to the appellant in their statements under Section 161 Cr.P.C. It is difficult to imagine that the complainant and the eye- witnesses had all falsely named the appellant as being the person responsible for the offence at the initial stage itself.
60. Thus, the plea of false implication of the accused persons does not survive at all.
61. Now, the Court proceeds to examine the version of PW-7 in respect of the present incident of beating and whether her testimony proves the FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 27 of 36 PS Farsh Bazar culpability of the accused persons. PW-7 has deposed that on 08.09.2015, there was a similar incident when she heard the screams of deceased and she was being beaten up by both A-1 and A-2. She ran out and came to the gali. They were beating her mercilessly. That day, probably she got one of her ribs damaged as a result of which, she was going on passing motion, spread all over. Her children took her to the hospital. On the next day also, before deceased was taken to the hospital, the accused persons had beaten up her more. She further deposed that the deceased had expired due to beatings given by the accused persons.
62. During her cross-examination, PW-7 deposed that the fight between the accused and deceased had started at around 7.00 a.m. She had come to know about the ribs of deceased being broken as children of the accused had come and she (PW-7) had also received information.
63. The Court has already observed that from the testimonies of PW-1, PW-5 and PW-6, it is made out that the deceased sustained injuries on 08.09.2015 at about 7.00 a.m. This corroborates the testimony of PW-7 that the fight had started at around 7.00 a.m. At this stage, an observation recorded in MLC of the deceased also becomes relevant. In the MLC of deceased (Ex.C-4), it has been observed that the patient/deceased is semi- conscious and alleged history of domestic violence yesterday [08.09.2015] at around 7.00 a.m. This observation also corroborates the version of PW-7. Further, in the postmortem report (Ex.PW-14/A) the injury no. 2 and 3 are stated to be about 2 to 3 days old. The postmortem had been conducted on 10.09.2015 at 1.30 p.m. Thus, the age of injuries FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 28 of 36 PS Farsh Bazar no. 2 and 3 commensurate with the testimony of PW-7 that injuries were caused to the deceased on 08.09.2015 at 7.00 a.m.
64. PW-7 has stated that probably, the deceased got one of her ribs damaged. She has also stated that her children took her to the hospital. While appreciating the testimonies of PW-1, PW-5 and PW-6, the Court has already observed that on 08.09.2015, the deceased had been taken to the doctor Hira Lal for treatment, who prescribed X-Ray as well. First of all, the version of PW-7 about taking the deceased to hospital on 08.09.2015 gets corroboration from the above observation. Furthermore, the deceased must have indicated pain in and around her chest area, that is why the doctor would have advised for X-Ray of chest area. And this information of pain in chest area might have led to form an opinion that probably, ribs of deceased had got damaged. Thus, the testimony of PW-7 gets corroboration on this aspect too.
65. So far as testimony of PW-7 is concerned in respect of beating given by accused persons to the deceased on 09.09.2015. The accused persons did not put any question to PW-7 during her cross-examination to controvert her such version. Moreover, in the postmortem report (Ex.PW-14/A) of the deceased, it has been observed that injury no. 1 is recent in duration prior to death. As per death summary, Ex.C-2, the deceased expired on 09.09.2015 at 7.30 p.m. The abovesaid observation made in postmortem report corroborates the testimony of PW-7 that the deceased had received injuries on 09.09.2015 too.
FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 29 of 36 PS Farsh Bazar
66. In the postmortem report of the deceased, one of the external injuries is shown as 'reddish bruise 3.9 x 2.8 cm was present at outer aspect of left side of lower chest wall, 12 cm below tip of left scapula and 11.3 cm above posterior, superior iliac spine'. The cause of death has been opined as 'hemorrhagic shock due to laceration of spleen consequent upon blunt force impact which was sufficient to cause death in an ordinary course of nature'. Further, PW-14 has deposed that there was injury on the left lower side of the chest which caused injury to the spleen, which was possible only by blunt force impact, such as fist blow etc., therefore, he concluded that injury was homicidal. The abovesaid injury has been opined to be recent in duration and possible only by blunt force impact such as fist blow. Thus, the abovesaid provides corroboration to the testimony of PW-7 that the deceased had been assaulted on 09.09.2015.
67. It is worth noting that during cross-examination of PW-7, the accused persons did not specifically dispute her version regarding beatings having been given by the accused persons to the deceased on both days i.e. 08.09.2015 and 09.09.2015 or on any day. It was not suggested to PW-7 that she did not witness the alleged beatings given to the deceased on 08.09.2015 and/or 09.09.2015. Further, it was not suggested that she was not informed about the damage caused to the ribs of the deceased. It was not suggested to her that in fact, the deceased received injuries due to fall from staircase. It was not suggested to PW-7 that either A-1 or A-2 or both accused persons were not present at the time of alleged incident of sustaining injuries by the deceased on 08.09.2015 and/or 09.09.2015. It is not the case of accused persons put to PW-7 that the family of PW-7 and FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 30 of 36 PS Farsh Bazar the family of A-1 had strained relations and that is why, she has deposed against the accused persons.
68. In view of above observations, it stands proved that the accused persons had beaten the deceased on 08.09.2015 at about 7.00 a.m. They had again beaten her on 09.09.2015.
69. It has been argued that in the call made at 100 number, recorded as DD no. 84-B (Ex. PW-12/A), PW-7 did not name A-2 as one of the accused persons. It is trite law that FIR or first information which is recorded in the form of DD entry is not an encyclopedia. The Hon'ble Supreme Court in The State of Uttar Pradesh v. Naresh, Crl. Appeal No. 674/2006 decided on 08.03.2011, has held that:
26. [I]t is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated.
70. There is one aspect worth deliberation that in death summary (Ex.C-2) of deceased, diagnosis has been made as of 'head injury'. It is pertinent to note that neither in MLC of deceased (Ex.C-4) nor in her postmortem report (Ex.PW-14/A), any observation regarding head injury has been recorded. It appears that the said observation of head injury has been made merely on the feedback given by son of deceased/Rahul (PW-5), who had taken the deceased to Dr. Hedgewar Hospital. It is reiterated that in the MLC of deceased, it has been observed that 'alleged history of FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 31 of 36 PS Farsh Bazar domestic violence yesterday at around 7.00 a.m.', which must have been recorded on the information given by PW-5. Thus, the observation made in the death summary of deceased does not create any doubt on the case of prosecution.
71. Ld. Defense Counsel has pointed out that no other neighbour of accused no. 1 and deceased had been examined by the prosecution. It is true that PW-7 during her cross-examination deposed that none of other neighbours used to file complaint against the accused persons. The Court has already observed that testimony of PW-7 is reliable and trustworthy. Moreover, sometimes the persons refrain themselves from intervening in family matters of their neighbours. Due to such trait, the investigating agency might not have found any neighbour other than PW-7 to depose against accused persons.
72. The Hon'ble Supreme Court in Rajesh Yadav v. The State of Uttar Pradesh, in Criminal Appeal Nos. 339-340 of 2014 decided on 04.02.2022, has held that:
Non-examination of witness:
31. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn.
Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it.
FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 32 of 36 PS Farsh Bazar
73. It stands proved that the accused persons had beaten the deceased on 08.09.2015. Resultantly, the deceased received injuries on the outer aspect of right arm and at back of left forearm i.e. the external injuries mentioned at serial no. 2 and 3 in the postmortem report. Further, the deceased was having pain in her chest area. As per medical documents of the deceased, she was 50 years of age. Despite such medical condition and age of the deceased, the accused persons beat her on 09.09.2015 too. Resultantly, there was laceration of spleen consequent upon blunt force impact, which was sufficient to cause death in an ordinary course of nature.
74. In State of Gujarat v. Ajit @ Lalo Udesing Patanvadiya, R/Criminal Appeal No. 111 of 2015 decided on 24.04.2018, the Hon'ble Gujarat High Court has observed that:
22. 'The Lyons : Meidcal Jurisprudence and Toxicology (11th Edition) defines that the rupture of the spleen may be caused by accidental violence, e.g. of all, or a traffic accident. In non-accidental cases, it is often the result of a blow, a kick, or a push. It is also acknowledged that, a trivial blow may cause fatal rupture and a rupture may occur without any external marks of violence being present. The evidence as produced before the trial court suggests that the deceased was randomly beaten by the accused with sticks causing eight external injuries. As per the Medical Jurisprudence, the rupture in the spleen may occur unaccompanied by the external marks of violence. Thus, it can be safely presumed that the Medical Officer, in his testimony was referring to the injury no. 5, which was enough to cause the death though it may not have any connection with the rupture of spleen. As evident from the injuries inflicted on the deceased, the only injury which proved fatal for the deceased is the injury which resulted in the rupture of spleen......
xxxxx However, looking to the nature of the injuries coupled with the fact that the incident had occurred at night and the deceased did not die on the spot, in our considered opinion, the present case will fall under Section 304 Part-II of the IPC. The evidence reveals that the incident had FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 33 of 36 PS Farsh Bazar occurred at night, and the accused had inflicted blows of sticks. The injuries do not reveal that the same were inflicted on the vital parts of the body or the accused intended to cause such injury which would result in the rupture of spleen. Thus, there may not be any intention of the accused for murdering the deceased, but the accused can be clothed with the knowledge that the injuries, which they were inflicting on the deceased would likely to cause death hence, the case would fall under Section 304 Part-II of the IPC.
75. The Hon'ble Bombay High Court in Santosh Kailasnath Yadav v. The State of Maharashtra, in Criminal Appeal No. 910/2010 decided on 21.08.2017, has held that:
9. In our view, considering the facts and circumstances of the present case and the evidence on record, it would be reasonable to infer that in beating up the deceased Abhishek with blows of fists and kicks, which unfortunately resulted in rupture of the spleen which led to his death, the Appellants at the highest can be attributed to have knowledge that they were likely to cause the death of the deceased in which case the offence is one punishable under Section 304 Part II IPC and it cannot be said that there was intention on their part to murder him, which would be an offence under section 302 IPC. As stated earlier, the Appellants beat up deceased Abhishek with fists and kicks only and there were no weapons used by them. Following the aforementioned decision of the Supreme Court Karam Singh's case, we set aside the conviction and sentence of the Appellants under section 302 IPC. Instead the Appellants shall stand convicted under section 304 Part II IPC.
76. The above precedents squarely apply to the present case. The accused persons are proved to have beaten the deceased. It is not the case of prosecution that they were carrying any weapon while beating the deceased. The beating has resulted in rupture of the spleen which led to her death. Thus, the accused persons at the highest can be attributed to have knowledge that they were likely to cause the death of deceased. Accordingly, the ingredients of offence punishable under Section 304 (Part-II) IPC stand proved.
FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 34 of 36 PS Farsh Bazar
77. Now, the question arises regarding applicability of Section 34 IPC in the present case. The Hon'ble Supreme Court in the case of Hari Ram v. State of U.P., 2004 (3) RCR (Criminal) 805, has explained the meaning of 'common intention' that:
9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
12. [T]he provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh, 1993(3) RCR(Crl.) 319 (SC) : (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.
[Emphasis supplied] FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 35 of 36 PS Farsh Bazar
78. The Court has already observed about the mind-set of accused persons while committing present act of assault upon the deceased. PW-7 has deposed that both the accused persons together used to beat the deceased. Further, it has been stated by PW-7 that both had beaten the deceased on 08.09.2015 as well as on 09.09.2015. Thus, it stands proved that both accused persons shared common intention to commit the impugned offence. Resultantly, applicability of Section 34 IPC also stands proved in these circumstances.
79. The prosecution has proved the ingredients of offence punishable under Section 304 (Part-II) IPC read with Section 34 IPC against the accused persons beyond reasonable doubt. Accordingly, the accused persons are held guilty for the offence punishable under Section 304 (Part-II) read with Section 34 of the Indian Penal Code.
Announced in open Court (Naveen Gupta)
on 13th day of May, 2022 Addl. Sessions Judge-05
Shahdara District,
Karkardooma Courts, Delhi
FIR No. 759/15 State vs. Mohan Lal and Anr. Page No. 36 of 36
PS Farsh Bazar