Delhi District Court
Sc No. 59274/16 Fir No. 865/15 Ps Adarsh ... vs . Raju & Ors. Page No. 1 Of 27 on 18 August, 2018
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No........................................... 59274/2016
FIR No. 865/15
P.S. Adarsh Nagar
U/s. 302/34 IPC
State
Versus
1.Raju S/o. Bhawar Singh R/o. Jhuggi No. A76, Bara Bagh Kaushal Puri, Delhi
2. Karan @ Kale S/o. Rakesh R/o. A82, Kaushal Puri Bara Bagh, Azadpur, Delhi
3. Sone Lal S/o. Ram Kishore R/o. Jhuggi No. A76, Bara Bagh Kaushal Puri, Azadpur, Delhi Date of institution : 12.04.2016 Judgment reserved on: 25.07.2018 Judgment delivered on: 18.08.2018 ORDER/JUDGMENT: All the three accused persons are convicted of the offence(s) under Section 304 Part II/34 IPC.
SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 1 of 27 -2- J U D G M E N T
1. Brief facts, as stated in the charge sheet are that on 28.12.2015 on receipt of DD No. 29A SI Tejpal Singh along with Ct. Sunil reached the spot i.e. Bada Bagh, Kaushal Puri, near Kali Mata Mandir, where they came to know that the injury had been shited to BJRM Hospital by the PCR van. Upon this, they went to the BJRM Hospital and collected the MLC of injured Sanjeet, upon which the doctor had opined "A/H/O Physical assault smell of alcohol positive" and patient was declared dead at 10:30 pm on 27.12.2015. The dead body of the said Sanjeet was got preserved by the IO in the Mortuary of the BJRM Hospital. There he met two companions of the deceased namely Sandeep and Ramesh, who stated themselves to be the eye witnesses of the incident. ASI Ranjeet recorded statement of Sandeep, which reads as under :
On 27.12.2015 at about 8:45 pm, he came back to his home from his duty and after giving vegetables at home, he went to the house of his friend Ramesh, where he met with Ramesh and Sanjeet, who were taking liquor and thereafter they all went near Bada Park to attend call of nature. He and Ramesh went inside to attend the natures call, whereas Sanjeet stopped near parked cars. When they came back after attending the natures call, SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 2 of 27 -3- they did not find Sanjeet near the cars and they started searching for him nearby and when he came near the Outer Road Urinal, he saw that Sanjeet was being beaten by Kalia, Sone Lal and Raju, all residents of Kaushal Puri Jhuggies, by legs, fists and danda blows and as soon as he went to get Sanjeet released from them, then Karan @ Kalia was saying that "Sanjeet Tu Bahut Bada Dada banta Hai, Aaj Hum Tera Kaam Tamam Kar Denge" in the meantime, Raju hit a danda on the head of Sanjeet due to which Sanjeet fell on the ground. Thereafter, all those three boys fled away from the spot. He and Ramesh picked up Sanjeet, who appeared to be breathless and was not speaking anything. Then he made a call at 100 number and they brought him to BJRM Hospital in the PCR van, where the doctors declared him brought dead.
2. On the basis of the statement, ASI Tejpal prepared a rukka and sent Ct. Sunil to the PS for registration of case FIR. After registration of the FIR, further investigations were handed over to Inspector Rakesh Kumar, who had also reached the spot. Crime team was called to SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 3 of 27 -4- the spot, who inspected the spot and took photographs and also prepared site plan. Search for accused persons was made, but in vain. IO went to BJRM Hospital and prepared the inquest papers. The post mortem of the deceased was got conducted and thereafter the dead body was handed over to the relatives. During investigations, on receipt of secret information by the IO, along with other police officials reached Bada Bagh Parking and from inside a tempo, all the three accused persons were apprehended whose name revealed as Karan @ Kale, Raju and Sone Lal @ Sonu. The weapon of offence i.e. danda used in the commission of crime was got recovered by accused Raju pursuant to his disclosure statement and same was seized by the IO.
3. After completion of investigation(s), a charge sheet u/s 302/34 IPC was filed in the court of Ld. MM.
4. On committal of the case to the Court of Sessions, vide order dated 17.10.2016, a charge(s) u/s 302/34 IPC was framed against all the accused persons, to which they pleaded not guilty and claimed trial.
5. Thereafter, prosecution in support of its case has examined 20 witnesses :
a) PW1 is ASI Dev Dutt, Duty Officer at PS Adarsh Nagar, who has proved the copy of FIR Ex. PW1/A and endorsement SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 4 of 27 -5- made by him on the rukka as Ex. PW1/B. He has proved the certificate u/S. 65 B Indian Evidence Act as Ex. PW1/C.
b) PW2 is Ct. Sandeep, Photographer, Mobile Crime Team, NW District, who had visited the spot on the night of 27 28.12.2015 and proved the photographs taken by him as Ex.
PW2/A1 to PW2/A8 and CD of the same as Ex. PW2/B.
c) PW3 is DR. Mukesh Mandal, CMO, BJRM Hospital, who has proved the MLC of deceased Sanjeev as Ex. PW3/A.
d) PW4 is Ms. Shila Bambani, Primary Teacher, NDML Primary School, who had produced the admission related records of accused Sone Lal and proved the same as Ex. PW4/A and Ex. PW4/B.
e) PW5 is Inspector Manohar Lal, Draftsman, NW District, who had visited the spot on 15.03.2016 along with IO Inspector Rakesh Kumar and proved the site plan prepared by him as Ex. PW5/A.
f) PW6 is Sh. M. L. Meena, Sr. Scientific Officer, FSL, who has proved the FSL report prepared by him as Ex. PW6/A.
g) PW7 is ASI Satender Kumar, MHC(M), who had made relevant entries in Register No. 19 Ex. PW7/A regarding deposit of four sealed pullandas by IO and sending of viscera box along with sample seal to FSL office through Ct. Anil vide entry in Register no. 19 as Ex. PW7/B.
h) PW8 is ASI Gajender Singh, Incharge PCR Van SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 5 of 27 -6- Commander 16, who on the night of 2728.12.2015 on receipt of call from Control Room reached at the spot from where they shifted one boy in unconscious condition to BJRM hosital.
i) PW9 is ASI Joymon, who on 18.03.2016 took the sealed pulanda sealed with the seal of RK and deposited the same at BJRM Hospital vide RC No. 29/21/16.
j) PW10 is Ct. Sunil, who went to the spot along with ASI Tejpal Singh on 27.12.2015 and deposed about the investigations as were carried out by the IO in his presence.
k) PW11 is Ct. Dinesh, to whom the doctor had handed over sealed viscera box, pulanda(s), blood sample and sample seal, which were taken into possession by the IO vide seizure memo Ex. PW11/A.
l) PW12 is Ashok Paswan, who had identified the dead body of his son Sanjeet vide identification statement Ex. PW12/A and also received the same vide receipt Ex. PW12/B.
m) PW13 is Ramesh, an eye witness of the incident, who has deposed about the mode and manner of the incident as well as the identity of the accused persons.
n) PW14 is ASI Rajbir, Incharge, Mobile Crime Team, NW District, who visited the spot on the intervening night of 27/28.12.2015 and proved the report prepared by him as Ex. PW14/A.
o) PW15 is SI Sandeep Kumar, who was posted at PS SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 6 of 27 -7- Adarsh Nagar as SI/JWO. He has proved the social report of Sone Lal as Ex. PW15/A and his apprehension in this case vide memo Ex. PW15/B. He has also proved the version of the said accused as Ex. PW15/C.
p) PW16 is Sandeep (complainant), another eye witness in this case, who has deposed about the mode and manner of the incident as well as the identity of the accused persons.
q) PW17 is HC Pradeep, who on 27.12.2015 was posted at PHQ and has proved the message received by him regarding quarrel at Bara Bagh, which he had recorded in PCR Form No. 1 as Ex. PW17/A.
r) PW17 is Ct. Anil Kumar (wrongly mentioned as PW17 again), who on 24.02.2016 on the instructions of IO took the sealed exhibits from MHC(M) with FSL form and deposited the same in FSL office, Rohini.
s) PW18 is Dr. N. K. Gunjan, Assistant Professor, MGM Medical College, who had conducted the postmortem on the dead body of deceased Sanjeet on 28.12.2015 and proved the PM report prepared by him as Ex. PW18/A, and subsequent opinion qua weapon of offence as Ex. PW18/C.
t) PW19 is SI Tejpal Singh, initial IO in this case, who on receipt of DD No. 29A on 27.12.2015 reached the spot along with Ct. Sunil. He has proved the rukka prepared by him Ex. PW16/A on the basis of which, the present FIR was got SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 7 of 27 -8- registered at PS Adarsh Nagar.
u) PW20 is Inspector Rakesh Kumar, IO of this case, Inspector Sunil Kumar, IO of the case, who has deposed regarding the investigations as were carried out by him during the course of the present case.
6. Thereafter, statements of all the accused persons u/s 313 Cr.P.C. were recorded, in which the entire incriminating evidence appearing against the accused persons was put to them, in which the defence of all the accused persons was that they had been falsely implicated in the present case. They further stated that they had nothing to do with the present case. They were called to police station where they were forced to sign certain blank papers, which were later on converted against them. However, they chose not to lead evidence in their defence.
7. I have heard Sh. R. A. Khan, Ld. Defence Counsel for accused persons namely Raju and Karan @ Kali, Sh. Subodh Kumar, Ld. Defence Counsel for accused Sone, Sh. Virender Kharta, Ld. Addl. PP for the State and perused the record.
8. Ld. Defence counsels have argued that the prosecution has planted PW13 Ramesh and PW16 Sandeep as eye witnesses to the incident dated 27.12.2015. They further submit that those witnesses SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 8 of 27 -9- were not present at the spot at the time of the alleged incident, which is also evident from the perusal of the DD No. 29A, dated 27.12.2015, which shows that the said DD was recorded on the information that one injured was lying in unconscious condition and the said DD nowhere reveals the presence of either PW13 Ramesh or PW16 Sandeep at the spot.
They further argued that the testimony of PW13 is of wavering nature, as he in his examinationinchief has supported the prosecution story. Thereafter, in his crossexamination qua defence, he turned hostile and did not support the prosecution story regarding the manner of the incident or the identity of the accused persons. Later on in his re examination by the Ld. Addl. PP for the State, he again took a different stand and supported his examinationinchief. Therefore, they have argued that no reliance can be placed on such a wavering witness.
Regarding the testimony of PW16 Sandeep, they have argued that testimony of this witness as a whole is also not trustworthy as he was also later on introduced as a witness in the present case to lend assurance to the testimony of the prosecution and from the reading of his testimony as a whole, there are number of contradictions in his testimony, which shows that he is not a trustworthy witness and no reliance can be placed upon such a witness.
They further argued that the testimony of PW8 ASI Gajender Singh of the PCR, who had taken the injured Sanjeet to the hospital also shows that none of the witness i.e. PW13 Ramesh and PW16 SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 9 of 27 -10- Sandeep were present at the spot when the PCR officials reached there and in his crossexamination, he has stated that, though, 12 public persons were present at the spot, when he reached there, but he does not know whether they were known to the injured or not. This shows that neither PW13 nor PW16 were present at the spot at the time of the incident. They also submit that recovery of danda half burnt in pursuance to the disclosure statement of the accused does not connect the accused Raju with the same. They further argued that no common intention of the accused persons can be made out from the testimony of the prosecution witnesses, and therefore, all the accused persons cannot be vicariously held liable for the act of the other accused persons. Even if for the sake of argument, it is presumed that the prosecution has been able to prove its case beyond any shadow of doubt, even then case of the accused persons falls u/S. 299(c) of the IPC and at the most, the accused persons can only be convicted u/S. 304B(II) IPC.
9. On the other hand, the Ld. Addl. PP for the State has strongly controverted the above arguments of the defence counsels and has argued that from the testimonies of PW13 and pW16, the prosecution has been able to prove the time, place as well as the presence of the accused persons at the spot as also identity of the accused persons and there are no major contradictions in the testimonies of PW13 Ramesh and PW16 Sandeep, who were the natural witness, who were SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 10 of 27 -11- present at the spot, as they had gone with the deceased Sanjeet to answer the call of nature and he further submits that as per DD No. 29A, the PCR call had been made by PW16 from his mobile phone 9582430933 and further the PCR Form Ex. PW17/A also reveals that when the PCR van reached the spot and the injured was taken to the hospital, even then PW Sandeep was very much present there. He further argued that the recovery of wooden danda, pursuant to the disclosure statement has been duly proved to be recovered, and therefore, the said evidence is admissible u/S. 27 of the Evidence Act and as per the opinion of the autopsy surgeon, the injuries found on the body of the deceased were possible by the recovered danda and as per the post mortem report, the head injuries suffered by the deceased were sufficient to cause death in ordinary course of nature, therefore, the prosecution has been able to make out a case u/S. 300 IPC and the case does not fall under any of the exception of Section 300 IPC and neither it falls in any of the provisions u/S. 299 IPC, as argued by Ld. Defence Counsels.
10. I have gone through the rival contentions.
11. PW16 Sandeep in his testimonial deposition in the Court has deposed as under :
SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 11 of 27 -12- "I am residing at the aforesaid address alongwith my family. I am a permanent resident of Village Gamti, PS Daulishakra, District Mujjafarpur, Bihar. I am working as a driver at Ashok Vihar, A-100, Phase-II, Delhi.
On 27.12.2015, at about 8:45 pm, I came to my house after my duty hours and I brought vegetables. Thereafter, I went to the house of my friend Ramesh who was also working as driver with me. When I reached in the house of Ramesh, he alongwith Sanjeet (deceased) were taking liquor.
After some time, all of us went for latrine in the park. I alongwith Ramesh went inside the park for latrine while Sanjeet was standing near the vehicles just inside the road. After easing us, when I alongwith Ramesh came there we did not find Sanjeet there. We searched Sanjeet here and there. When we reached near shauchalya on the road we saw Sanjeet was gave beatings by three boys namely Karan, Raju and Sone Lal with dandas, legs and fist blows. I knew all the three persons as they are the residents of Kaushal Puri.
Accused Raju hit the danda on the head of Sanjeet. All the three accused namely Raju, Karan @ Kali and Sone Lal are present in the court today (correctly identified by the witness while pointing out towards them one by one). Due to danda blow Sanjeet fell down on the ground and thereafter all the three accused left the spot.
I alongwith Ramesh tried to lift Sanjeet but he was not responding and was unconscious. Thereafter, I made a call from my mobile phone bearing no. 9582430933 at 100 number. PCR reached at the spot and Sanjeet was taken to BJRM Hospital where doctors declared him dead.
Police came there and made inquiries from me and recorded my statement in this regard. Same was read over and explained to me and after finding it to be the correct, I signed the same at point A on Ex. PW16/A. SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 12 of 27 -13- On the basis of my statement, case was registered. At mortuary, BJRM Hospital, I identified the dead body of deceased Sanjeet vide my identification statement Ex. PW16/B. Thereafter, we came back at the spot and on my pointing out, IO prepared the site plan. Accused Karan @ Kali and Raju were arrested on my identification vide arrest memos Ex. PW16/C and Ex. PW16/D which bears my signatures at point A and their personal search were also conducted vide memos Ex. PW16/E and Ex. PW16/F both these memos also bears my signatures at point A respectively.
The disclosure statements of accused Karan and Raju were also recorded which are Ex. PW16/G and Ex. PW16/H which also bears my signatures at point A. Both the accused pointed the place of occurrence vide memo Ex. PW16/J and Ex. PW16/K which also bears my signatures at point A respectively.
Accused Sone Lal was also apprehended vide apprehension memo already Ex. PW15/B and his personal search was conducted vide memo Ex. PW16/L bears my signatures at point A. Accused Raju also got recovered weapon of offence i.e. danda which was burnt from one end under the vehicle near the spot and same was converted into a pulanda and taken into possession vide seizure memo Ex. PW16/M which also bears my signatures at point A and thereafter IO recorded my statement in this regard. I can identify the case property if shown to me. At this stage, MHC (M) has produced one pulanda sealed with the seal of NKG. Same is opened found to contain one wooden danda burnt with one end. Same is shown to the witness who correctly identifies it to be the same by which accused Raju hit on the head of deceased and got recovered the same. The said wooden danda is Ex. P1."
12. PW16 has supported the prosecution version regarding the time, SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 13 of 27 -14- place as well as the manner of the incident. Regarding the identity, he deposed that he knew all of them as they were residents of Kaushal Puri. He has also deposed regarding the specific role of each of the accused persons. In his crossexamination qua accused Raju and Karan @ Kali, he has reiterated and reaffirmed the story stated by him in his examinationinchief. Regarding the identity part, he has denied that there was no electricity at the spot, rather he had stated that electric pole was at a distance of 45 meters from the spot. In fact the following suggestion was given in the crossexamination of the witness, which is reproduced as under :
"It is correct that he knew all the accused persons prior to the incident"
By giving such suggestion, even the defence admits that he knew all the accused persons prior to the incident, which shows that identity of the accused persons was never in doubt in the present case. Further regarding the identity of the accused Sone Lal, he stated that when he used to visit the house of Ramesh, he used to see Sone Lal in gali and he also stated that before running, accused persons had their faces towards him. He further deposed that the accused Karan @ Kali was residing adjacent to the house of PW16, which has remained un demolished. After his crossexamination, the prosecution has been able to prove the time, place as well as the manner of the incident, as also the identity of the accused persons beyond any doubt. The prosecution has also been able to prove that there was sufficient SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 14 of 27 -15- illumination available at the spot to see the faces of the accused persons. Therefore, overall the testimony of PW16 after the examination and crossexamination is over, remains in the realm of being highly reliable in nature.
13. PW13 Ramesh is another eye witness cited by the prosecution who has also deposed regarding the time, place as well as the manner of the incident. He has also identified all the accused persons in his testimonial deposition in the Court. However, on 05.08.2017, his cross examination was deferred. Thereafter, in his crossexamination on behalf of accused Raju and Karan @ Kali, he stated as under :
"It is correct that when I reached on the spot Sanjeet was unconscious stage. It was correct that when we reached on the spot the quarrel had already ended.
It is correct that he had not seen the face of any of the accused on the spot."
In his crossexamination qua accused Raju and Karan @ Kali, he also stated that when he reached the spot, Sanjeet was in unconscious stage and when he reached the spot, the quarrel had already ended. He further admitted that he had not seen the face(s) of any of the accused at the spot. Thereafter, he was reexamined by the Ld. APP for the State, wherein he reaffirmed his examinationinchief and even a Court observation was made that the witness further confirms that all three accused persons were there when Raju hit the deceased with SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 15 of 27 -16- danda and after hitting danda, three persons out of many, fled away from the spot.
14. Thereafter, he also stated that it is correct that the assailants could be identified even in dim light from short distance and he also stated that many persons, which he stated in his answer were not involved in the incident of giving beatings to deceased Sanjeet apart from the three accused persons present in the Court today i.e. the accused persons in question. Thereafter, no further material cross examination of this witness has been done by the Ld. Defence Counsels thereby diminishing the assertions made by the said witness in his reexamination by the Ld. Addl. PP for the State. Though, the probative force of the testimonial deposition of PW13 has been dented due to his wavering stand taken in his examinationinchief, cross examination, reexamination, but even then his probative force can be assessed to be in the range of 60% on the probative scale(s) of 1 to 10, thereby the Court can look for corroboration from his testimony to the testimony of PW16 Sandeep and thereby the testimony of PW13 strongly reaffirms and supports the testimonial deposition of PW16 Sandeep.
In any case, the purpose of corroboration in any criminal trial is to rule out the errors which may occur in the testimony of a single witness on account of observational sensitivity, objectivity and veracity, as if two witnesses are deposing about the same incident in same way and their SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 16 of 27 -17- depositions are also supported by other evidence(s) and same are found to be trustworthy, then the chances of errors in the testimony of single witness are thereby ruled out.
15. Regarding the testimony of PW8 ASI Gajender Singh of the PCR, who had gone to the spot on the date of the incident on receipt of call at 9:30 pm, regarding quarrel at the spot, he stated that he reached the spot along with driver and gunman. He found there a boy was lying unconscious in front of a Kabari or a Tea shop opposite to Factory No. 44, Kaushalpuri, Delhi. The said boy was shifted to BJRM Hospital in PCR van. Thereafter, the doctor within 10 minutes declared him brought dead. In his crossexamination, he has stated that only 12 persons were present at the spot, when he reached there, but he cannot tell whether they were known to the injured or not. Thereby, the said witness has not stated anything, which supports the defence that nobody was present at the spot at the time when the PCR van reached the spot. Since his priority at that time was to shift the injured to the nearest hospital at the earliest, therefore, he was not bound to confirm the identities of the public persons present at the spot at said critical time, which was the duty of the local police, his utmost priority was to save the life of an unconscious person.
Even otherwise, the perusal of PCR Form Ex. PW17/A and the facts mentioned therein i.e. the transcript between the PCR officials and the police control room reveals that PW Sandeep was present with the SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 17 of 27 -18- PCR officials and was also present at the hospital. Therefore, this also lends assurance to the testimony of PW16 Sandeep that he was present at the spot at the time of the incident.
16. As already discussed above, the PCR call Ex. PW19/A which was recorded vide DD NO. 29A was also made by PW16 Sandeep from his mobile no. 9582430933 regarding the quarrel and unconsciousness of the deceased. This also shows that he was present at the spot at the time of incident. Therefore, any cloud in this reard is hereby done away.
17. Further, PW20 IO Inspector Rakesh Kumar, who had investigated the case was asked the following suggestion :
"That it was correct that PW Sandeep met me at the spot."
This also affirms the prosecution case that PW Sandeep was present throughout that he was present with the PCR officials, at the spot and also at the hospital. In pursuance to the arrest and disclosure statement of accused Raju, he got recovered one burnt wooden danda, which was sealed and taken into possession vide seizure memo Ex. PW16/M. Nothing has come out in his crossexamination, therefore, the said recovery is a recovery u/S. 27 of Evidence Act. There was no blood stained on the wooden half burnt danda, but judicial notice can be taken of this fact that the time span during which the danda must SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 18 of 27 -19- have hit the head of the deceased Sanjeet and oozing out of blood must have been little later, and therefore, there was chance of danda being soiled with the blood for small span of micro seconds cannot be there.
18. The post mortem report has been proved by the Dr. N. K. Gunjan as Ex. PW18/A, as per which on internal examination, following injuries were found :
" INTERNAL EXAMINATION A) Head Scalp: On reflection, reddish contusion of size 01cm x 01cm was present on right frontal region, 05cm above the supra orbital ridges.
Skull: Linear fracture measuring 09cm in length was present over right frontal bone and extended to the base of skull involving right ethmoidal bone.
Brain: Subdural hemorrhage was present on right frontal lobes. Diffuse subarachnoid haemorrhage was present. Inraventricular haemorrhage was present. Brain was soft, oedematous and congested."
As per subsequent opinion of the concerned autopsy surgeon Ex.
SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 19 of 27 -20- PW18/C, it was opined that the injuries caused on the body of deceased were possible by the recovered wooden stick (danda) and as per the post mortem report, the head injuries suffered by the deceased were sufficient to cause death in ordinary course of nature. Therefore, the medical evidence in this case also duly supports the direct evidence lead by the prosecution and strongly supports the prosecution version regarding the manner of the incident.
19. Now coming to the next argument of the Ld. Defence Counsels that the act of the accused does not fall in Section 300 IPC and it only falls u/S. 299 (c) IPC. Section 299 and 300 IPC are reproduced as under :
299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300 Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.- If it is done with the intention of causing bodily injury to any person and the SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 20 of 27 -21- bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly.-If the person committing the act knows tat it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
20. The act of the accused persons in the present case will not fall either in Section 299 (a) or Section 300(1) of the IPC as from the facts established above, no intention to cause death of deceased Sanjeet can be found out, as the act of the accused was not premeditated and quarrel had taken place suddenly at the spot over a trivial matter. The accused persons were not armed prior to the incident and had attacked the deceased with a danda picked up from the spot. Therefore, no intention to cause death can be fastened upon any of the accused person. Now coming to Clause 299(b) IPC and Section 300 (2) & (3) IPC, the present act of the accused persons also does not fall in any of these clauses. As discussed above, neither the accused persons were armed prior to the incident nor they had premeditated or had prior concert to cause such injuries, as were found on the body of the deceased, as shown in the post mortem report Ex. PW18/A. No doubt, the autopsy surgeon in his subsequent opinion Ex. PW18/C has opined that the head injuries suffered by the deceased were sufficient to cause SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 21 of 27 -22- death in ordinary course of nature and the injuries were possible by the danda Ex. PW18/B, sent for forensic analysis. However, the intention to cause such injuries, as were ultimately found on the body of the deceased, cannot be fastened qua the accused persons as it cannot be said that the accused persons at all material time recognized that the death or serious harm would be virtually certain (barring some unforeseen intervention) to result from their voluntary act i.e. to say that the accused persons had the foresight of the consequence(s) that by giving such single blow with danda, the same would result into the death of the deceased. More so, the said half burnt danda was picked up from the spot, as the accused persons were enjoying bonfire in winters. They had not come prepared at the spot armed with said danda, therefore, they cannot said to have foresight of the consequence(s) of their act nor they can be attributed with the intention of causing bodily injuries that were sufficient to cause death of the deceased in the ordinary course of nature. The following example would be apt to describe intention :
A man boarding a plane which is destined for Mumbai, which he knows to be bound for Mumbai, once he boards such a plane, he conclusively demonstrates his intention to go there.
21. In this scenario, the present case, the accused persons, as discussed above, cannot be attributed with the necessary intention that by causing a single blow with the half burnt danda, which they picked SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 22 of 27 -23- up from the spot, in the heat of moment and had not brought before the incident or well armed with same prior to the incident i.e. to say that they were not having the intention to cause such bodily injury as was likely to cause death nor it can be said that they had done the act in question, so as to cause bodily injury to the deceased Sanjeet, which was sufficient to cause death in the ordinary course of nature.
22. Now adverting to the Section 299(c) IPC and Section 304 Part II of IPC, the act(s) of the accused persons would definitely fall u/S. 299
(c), as if someone hits with a danda blow on the head of a person, due to which there is a linear fracture present over the right frontal bone extended to the bone of the skull and which also results into severe subdural hemorrhage and other hemorrhage into the brain, one can be said to have the necessary knowledge that the head being the most vital part of the human body, and any such injury on head could be lethal or fatal.
23. In the present case, since only one danda blow was given on the head, which turned out to be fatal, therefore, at the same time, act of the accused persons would not fall u/S. 300(4) IPC. As for conviction under Section 304(4) IPC, higher degree of probability would be required to cause death than would be required under Section 299 (c) IPC. In the present case, as per the prosecution case only one danda blow was given by the accused Raju, which turned out to be fatal and SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 23 of 27 -24- the said danda blow had been given on the head, which is the most vital part of the human body. Therefore, when the accused persons did the said act, they can definitely be attributed with the knowledge that they are likely to cause death by such act of deceased Sanjeet, which ultimately resulted into his death. Therefore, the case of the prosecution falls u/S. 299 (c) IPC.
24. Now adverting to common intention, the law regarding the same has been laid down in the judgment titled as Girija Shankar Vs. State of U.P., Appeal (crl.) 1034 of 1997 on 04.02.2004 of Hon'ble Supreme Court of India as under:
"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 SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 24 of 27 -25- mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section is 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. The Section does not say "the common intention of all", nor does it say" and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The 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 SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 25 of 27 -26- of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (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."
25. PW13 Ramesh has stated in his examinationinchief that all the accused persons were giving beatings to Sanjeet with legs and fist blows when he with PW16 Sandeep tried to rescue Sanjeet then Karan @ Kalia told that "Sanjeet tu bada dada banta hai, aaj tera kaam tamam kar denge" and during this process, accused Raju hit the danda on the head of Sanjeet with the intention to kill him. PW16 Sandeep has more or less corroborated the version of PW13 Ramesh.
26. From the aforesaid utterances made by the accused persons and the fact that all the accused persons gave legs and fist blows and one of them hit Sanjeet with danda, it is clear that the accused persons did the act or series of act in furtherance of their common intention and all of them actually participated in the commission of the offence(s), in furtherance of the same. Accordingly, all of them are vicariously liable for the acts of each other.
27. To sum up :
From the aforesaid analysis of evidence, the probative force of SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 26 of 27 -27- the prosecution evidence as a whole is touching the point of certainty on the scales, where probability of happening of any event is assessed or measured, whereas the defence version is having very low probative force, which is almost touching the point of disbelief. As a consequence, all the accused persons stand convicted u/S. 304 Part II/ 34 IPC.
Announced in the open Court (Sanjeev Aggarwal) th on this 18 day of August 2018. Addl. Sessions Judge02,North Rohini Courts, Delhi/18.08.2018 SC No. 59274/16 FIR No. 865/15 PS Adarsh Nagar State Vs. Raju & Ors. Page No. 27 of 27