Delhi District Court
28. The Hon'Ble Supreme Court Has, In ... vs . on 20 September, 2022
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE 04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET010054372015
SC No. 1419/2016
FIR No. 793/2014
U/s. 302 IPC
P.S Geeta Colony
In the matter of :
State
versus
Sujeet Kumar,
S/o Sh. Ajeet Kumar,
R/o Jhuggi No. F383, Nursery Jhuggi,
Near Shamshan Ghat,
Geeta Colony, Delhi.
Date of Institution : 06.02.2015
Date of reserving Judgment : 14.09.2022
Date of pronouncement : 20.09.2022
Appearances
For the State : Shri. Rakesh Mehta,
Additional Public Prosecutor.
For accused : Shri Dushyant Chaudhary,
Advocate.
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JUDGMENT
1. Briefly stated facts for the present case are that an information was received on 06.11.2014 at about 3.18 pm at PS Geeta Colony by PCR call that a boy had been stabbed in a jhuggi, near Shamshan Ghat Pushta, Geeta Colony. The said information was recorded vide DD No. 17A (Ex. PW7/A). ASI Rajender Singh and Ct. Yogender went to the spot. When ASI Rajender Singh alongwith Const. Yogender reached there, they found public persons gathered there and blood was lying at the spot. They were informed that injured Govind Mehto had been shifted to Max Hospital, Patparganj, Delhi, by his brother Bittoo Mehto. ASI Rajender Singh left Const. Yogneder at the spot and went to Max Hospital alongwith Const. Sunder and Const. Hansraj. They found injured Govind Mehto admitted in Max Hospital. The MLC of injured Govind Mehto was collected. IO/ASI Rajender Singh recorded statement of Bittoo Mehto vide Ex. PW2/A wherein he stated that he used to reside alongwith his family at F286, Nursery jhuggi near Shamshan Ghat, Geeta Colony, Delhi, and used to do the work of supply of water. On 06.11.2014 he alongwith his brother Govind Mehto and Birju Mehto were present there. They had a banana tree in front of their house, which they used water etc. At around 03.00 pm Sujeet s/o Ajeet, who used to reside in their street/gali, came alongwith his two associates and started to cut the banana leaves. His brother Birju Mehto told Sujeet not to cut banana leaf and on that issue Sujeet started scuffling (hatapai karney Sessions Case No. 1419/2016 Page 2/39 ASJ-04/East/KKD/Delhi laga) with his brother Birju. When he and his mother Smt. Geeta Devi tried to disengage Birju, Sujeet pushed his mother. Thereafter, his elder brother Govind came to save Birju. On that Sujeet caused an injury upon the neck of Govind with a knife in his hand with an intention to kill him. The knife hit the neck of his brother Govind and blood started oozing very fast. At this Sujeet alongwith his two associates ran away from there. Thereafter, he brought his brother in a TSR to Max Hospital where he was being treated. IO considered it fit to register a FIR under section 307 IPC and sent Const. Sunder for the same to PS Geeta Colony and IO alongwith Const. Hansraj went back to the spot. The Crime Team was called. The Crime Team took photographs of the spot. Blood stained earth and earth control were also seized from the spot vide seizure memo Ex. PW12/A and same were handed over to the IO. The FIR was also got registered under section 307 IPC vide Ex. PW1/B.
2. Meanwhile, IO received information vide DD No. 20A Ex. PW1/D that injured Govind Mehto had expired in the hospital. IO alongwith Const. Hansraj reached Max Hospital. The doctor handed over sealed pullanda containing clothes of deceased, which were seized by the IO vide seizure memo Ex. PW19/C. Crime Team reached hospital and took photographs of the dead body. The dead body was kept in mortuary in custody of Const. Hansraj. IO went to the spot alongwith Bittoo Mehto and prepared site plan Ex. PW19C at the pointing out of Bittoo Mehto. IO also seized blood stained shirt and pant of Bittoo Mehto vide seizure Sessions Case No. 1419/2016 Page 3/39 ASJ-04/East/KKD/Delhi memo Ex. PW2/B. Case property was deposited in the Malkhana. IO recorded statement of witnesses. Section 302 IPC was also added in the case and the investigation of this case was marked to Insp. Om Singh.
3. On 07.11.2014 IO/Insp. Om Singh alongwith ASI Rajender Singh reached mortuary, Subzi Mandi, and got conducted the post mortem on the dead body of deceased Govind Mehto. Postmortem was conducted vide PM report Ex. PW18/A. The dead body was identified by Bittoo Mehto and Pramod Mehto vide their statements Ex. PW2/C and Ex. PW14/A respectively. Thereafter, the dead body was handed over to relatives of deceased vide receipt Ex. PW2/D. The IO seized the blood gauze piece alongwith sample seal from the doctor vide Ex. PW19/D. The exhibits were deposited at the Malkhana.
4. Subsequently, upon information of the secret informer accused Sujeet Kumar was apprehended at Yamuna Khadar. He was arrested vide arrest memo Ex. PW19/E and his personal search was conducted vide personal search memo Ex. PW19/F and his disclosure statement was recorded vide Ex. PW19/G. The clothes worn by the accused i.e. blue colour vest with label of "Jockey" having blood stains, was seized vide memo Ex. PW19/H. The said vest is Ex. PW19/P1. The knife, which was used in incident, was got recovered by accused from the bushes at Khadar in the presence of one public person namely Deepak. IO took photographs of the knife Ex. PW20/B and Ex. PW20/C. The knife Sessions Case No. 1419/2016 Page 4/39 ASJ-04/East/KKD/Delhi was blood stained. Sketch of the knife was prepared vide Ex. PW5/A. The knife was taken into possession vide memo Ex. PW14/B. Statement of public witness Deepak was also recorded by the IO. The case property was deposited in the Malkhana. The medical examination of the accused was got conducted. Site plan of the place of recovery of knife was prepared Ex. PW20/D. The knife is Ex. P1. Thereafter on 26.11.2014 investigation of this case was handed over to Insp. Arun Chauhan. No information could be collected qua remaining two persons present with the accused and no evidence of their involvement in offence was found against them. Charge sheet was filed against accused Sujeet Kumar for the offence under section 302 IPC.
5. On the basis of chargesheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Court, took cognizance of offence under Section 302 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 03.02.2015 committed the case to the Court of Session for 06.02.2015.
Charge :
6. On 18.02.2015, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused, charge was framed against the accused Sujeet Kumar for commission of offence punishable under Section 302 IPC. The charge so framed was read over Sessions Case No. 1419/2016 Page 5/39 ASJ-04/East/KKD/Delhi and explained to the accused to which he did not plead guilty and claimed trial.
Prosecution Evidence :
7. In order to prove its case, the prosecution examined following witnesses :
(i) PW1 HC Kabir Ahmed, Duty Officer, who recorded the FIR.
He also received information regarding demise of injured Govind Mehto and recorded the same vide DD No. 20A Ex. PW1/D.
(ii) PW2 Bittoo Mehto, brother of deceased.
(iii) PW3 HC Vinod Kumar received information on 06.1.2014 at about 3.17 pm, on PCR regarding stabbing of one person at jhuggi near Shamshan Ghat Pushta, Geeta Colony and recorded information in PCR Form Ex. PW3/A.
(iv) PW4 HC Sonu Kaushik, who prepared scaled site plan of the spot Ex. PW4/A.
(v) PW5 Dr. Kapil Gupta. He attended patient Govind Mehto in emergency and after treating he prepared death summery of deceased Ex. PW5/A. Sessions Case No. 1419/2016 Page 6/39 ASJ-04/East/KKD/Delhi
(vi) PW6 Dr. Abdul Hai Gojwari, who was the attending consultant of Emergency Department at Max Super Specialty Hospital and prepared the MLC of deceased Govind Mehto vide Ex. PW6/A.
(vii) PW7 ASI Suraj Bhan, Duty Officer, who recorded DD No. 17A vide Ex. PW7/A.
(viii) PW8 Const. Krishan Jhakar. He collected the exhibits from MHC(M) vide RC No. 157/21/14 and deposited them at FSL Rohini and handed over the receipt to MHC(M).
(ix) PW9 HC Sanjeev, photographer, Mobile Crime Team, East District. He took the photographs of the spot Ex. PW9/A1 to Ex. PW9/A4 and negatives Ex. PW9/B1 to B4 and subsequently of the dead body of Govind Mehto vide Ex. PW9/C1 to C4 and negatives Ex. PW9/D1 to D4.
(x) PW10 Birju Mehto was brother of the deceased. (xi) PW11 Smt. Geeta Mehto was mother of the deceased. (xii) PW12 Const. Yogender Kumar, who went to the spot after
receipt of DD No. 17A alongwith ASI Rajender Rana and was part of the Sessions Case No. 1419/2016 Page 7/39 ASJ-04/East/KKD/Delhi investigation. He identified the blue colour pant and T.Shirt vide Ex. PW2/P1, which were handed over by PW Bittoo to the IO.
(xiii) PW13 SI Narender Kumar, Incharge Mobile Crime Team. He prepared his report Ex. PW13/A and handed over the same to the IO.
(xiv) PW14 Pramod Mehto, fatherinlaw of the deceased, who identified the dead body of deceased vide identification memo Ex. PW14/A.
(xv) PW15 Deepak in whose presence the knife was recovered by police at the instance of accused Sujeet from the bushes of Yamuna Khadar behind Shamshan Ghat and seized vide seizure memo Ex. PW15/B. He also identified the knife, which was recovered from under the bushes in his presence as Ex. P1. He also stated that knife was stained with blood at the time of its seizure.
(xvi) PW16 HC Sunder Lal, who was on patrolling duty and was present near Chacha Nehru Hospital on 06.11.2014 and he reached the spot alongwith Const. Hansraj after hearing about the incident. Thereafter, he alongwith IO went to the Max Hospital, where they found injured Govind Mehto and eye witness Bittoo Mehto was also found present there. IO recorded statement of Bittoo Mehto and prepared rukka and handed over to HC Sunder Lal for registration of the FIR. After Sessions Case No. 1419/2016 Page 8/39 ASJ-04/East/KKD/Delhi registration of FIR, HC Sunder Lal returned at the spot and handed over copy of FIR and original rukka to the IO.
(xvii) PW17 HC Kiran Lal, MHC(M), PS Geeta Colony. He deposed that on 06.11.2014 ASI Rajender Singh had deposited three sealed pulandas and one sample seal in the malkhana vide Serial No. 535/2055. On 07.11.2014 Insp. Om Singh had deposited three sealed pullandas in the malkhana vide Serial No. 535/2056. Both entries in register no. 19 are Ex. PW17/A (colly). On 02.12.2014 as per the directions of the IO, he handed over one pulanda containing knife to Insp. Arun Chauhan for taking into Subzi Mandi Mortuary vide RC No. 145/21 Ex. PW17/B. On the same day, Insp. Arun Chauhan deposited the pulanda containing knife duly sealed with the seal of Subzi Mandi Mortuary and he deposited the same vide entry at serial no. 613/2114 in register no. 19 Ex. PW17/C. On 17.12.2014 he handed over seven sealed pulandas and presample seal to Ct. Kishan to deposit the case property in FSL, Rohini, vide RC No. 157/21 Ex. PW17/D. After depositing the case property, Ct. Kishan handed over the acknowledgement of the FSL Ex. PW17/E. During his possession the seals on the pulandas were intact.
(xviii) PW18 Dr. Ashitesh Singh Bajwa conducted postmortem on the dead body of Govind Mehto and prepared postmortem report Ex. PW18/A and also give his subsequent opinion vide Ex. PW18/B that Sessions Case No. 1419/2016 Page 9/39 ASJ-04/East/KKD/Delhi injuries mentioned in postmortem report Ex. PW18/A was possible by the examined weapon i.e. kitchen knife.
(xix) PW19 ASI Rajender Singh was first IO of the case.
(xx) PW20 Insp. Om Prakash was second IO of the case.
(xxi) PW21 Insp. Arun Chauhan deposed that on 26.11.2014 further investigation of the case was assigned to him. He obtained measurement of the wounds of injured from the concerned doctor at the Hospital on 29.11.2014. On 01.12.2014 he obtained opinion on the weapon of offence from the Autopsy Surgeon, Subzi Mandi Mortuary. On 09.12.2014 he took the scaled site plan of the spot, which was got prepared by Draftsman Sonu Kaushik. On 17.12.2014 he collected photographs from the Crime Team Incharge. The exhibits of the case were deposited with FSL Rohini. The IO also verified the age of the accused. After completion of investigation the charge sheet was filed before the court under section 302 IPC. Upon receipt of FSL result the same was also deposited before the court and the same is Ex. PW21/E.
8. Vide order dated 01.12.2016, on the request of Ld. Addl.P.P. for the State, PW ASI Hansraj was dropped from the list of witnesses.
Statement of accused :
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9. After conclusion of prosecution evidence, the statement of accused under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him. Accused further stated that he has been falsely implicated in this case by the police in connivance of family members of the deceased. Initially accused stated that he wishes to lead defence evidence. However, vide statement recorded on 09.12.2021, ld. counsel for the accused stated that accused did not wish to lead defence evidence. Accordingly, defence evidence was closed.
Testimonies of material prosecution witnesses :
10. Bittoo Mehto, brother of deceased Govind Mehto, was examined as PW2. He deposed that his family comprised of his mother Smt. Geeta Devi, brothers namely Birju Mehto and Govind Mehto. He used to work as water supplier in the market. On 06.11.2014 between 3 to 4 pm he was present near his house and his brothers Govind Mehto, Birju Mehto and his mother Smt. Geeta Devi were also present there. Accused Sujeet Kumar, who used to reside in their neighbourhood, came there to cut banana leaves and he had a knife in his hand. His brother Birju Mehto told Sujeet Kumar not to cut banana leaves as banana plant was just 45 steps away from his house. When his brother Birju Mehto objected, accused Sujeet argued with his brother and grappled with him. PW2 and his mother tried to pacify the quarrel. Sujeet pushed his mother. His brother Govind Mehto came to rescue Birju, then Sujeet gave knife blow Sessions Case No. 1419/2016 Page 11/39 ASJ-04/East/KKD/Delhi on the neck of Govind Mehto. Govind Mehto started bleeding profusely and accused ran away from the spot. PW2 took his brother Govind Mehto to Max Hospital, Patparganj, by a TSR and someone informed the police. His brother died in the hospital in the evening on the same day. His clothes (of PW2) also got blood stained when he took his brother to the hospital. PW2 also identified his blood stained blue colour pant and T shirt, which were seized by the IO vide seizure memo Ex. PW2/B and they were exhibited as Ex. PW2/P1 (colly). PW2 also deposed that there were two other persons with accused Sujeet Kumar at the time of quarrel but he did not know them.
11. PW10 Birju Mehto, brother of deceased Govind Mehto. He deposed that on 06.11.2014, he was present outside his jhuggi. His brothers Govind Mehto, Bittoo Mehto and his mother were inside the jhuggi. At about 3 pm accused Sujeet Kumar came near their jhuggi with a knife to cut banana leaves from near their house. He was accompanied with his two friends. PW10 told him not to cut the banana leaves as banana tree was too small. Thereafter, accused Sujeet Kumar started abusing him. Upon hearing the quarrel, his brothers and mother came outside and intervened. His mother and brothers tried to save him. His brother Govind Mehto came in between, then accused Sujeet Kumar gave a knife blow on the throat of his brother and blood started oozing from the injury. After stabbing his brother, all the three persons ran away from the spot. His brother Bittoo Mehto took his brother Govind Mehto to hospital Sessions Case No. 1419/2016 Page 12/39 ASJ-04/East/KKD/Delhi and at that time his clothes got stained with blood. In the evening his brother Govind Mehto expired in the hospital.
12. PW11 Geeta Mehto is mother of the deceased. She deposed that on 06.11.2014 at about 3 pm when she was sitting inside his jhuggi alongwith his three sons, she noticed that accused Sujeet Kumar, who was their neighbour, came there and started cutting the banana leaves in front of their jhuggi. Her son Birju Mehto went outside and asked him not to do so. At this accused started beating her son Birju Mehto. Upon seeing this PW11 alongwith her son Bittoo Mehto also rushed there and tried to rescue him. In the meanwhile her elder son Govind Mehto also came out at the spot where accused Sujeet Kumar was beating Birju Mehto in order to save Birju Mehto. Accused Sujeet Kumar gave serious neck injury with a knife on the person of Govind Mehto. Thereafter, accused took out the knife from the neck of Govind Mehto and ran from there. Due to injury, her son Govind Mehto fell down and sustained injury on his body. Her other son called the police at 100 number. Police reached the spot and took Govind Mehto to Max Hospital and during treatment, her son expired.
13. Accordingly, all the three eye witnesses PW2, PW10 and PW11 stated that on the date of incident accused Sujeet Kumar came near their house to cut banana leaves from the tree. He was carrying a knife in his hand. He was accompanied with two persons (PW11 stated that he was Sessions Case No. 1419/2016 Page 13/39 ASJ-04/East/KKD/Delhi accompanied with one person). When Birju Mehto PW2 objected, a quarrel ensued. PW11 and her sons tried to pacify the quarrel and intervened. At that time accused Sujeet gave a knife blow on the neck of deceased Govind Mehto. After stabbing Govind Mehto, all the accused persons ran away. The testimony of complainant Bittoo Mehto PW2 describes the manner in which his brother Govind Mehto sustained a knife injury on his neck on the date of incident i.e. 06.11.2014 around 03.00 to 04.00 pm. His deposition stands corroborated by the testimony of PW10, his brother Birju Mehto, and his mother PW11 Geeta Mehto on the material particulars . Their testimonies in so far as the manner in which the injury was sustained by Govind Mehto and the facts leading to the fatal injury on Govind Mehto are consistent with minor discrepancies.
Medical and Forensic Evidence :
14. The deceased Govind Mehto was taken to Max Super Specialty Hospital, Patparganj, Delhi, after the incident where he was examined vide MLC No. 3978 Ex. PW6/A at 3.30 pm on 06.11.2014. It was stated by PW6 Dr. Abdul Hai Gojwari that on 06.11.2017 he was working at Max Super Specialty Hospital as Attending Consultant of Emergency Department. At 03.30 pm injured Govind Mehto was brought to the hospital by Bittoo Mehto with alleged history of stab injury on left side of lower part of neck followed by profuse bleeding and decreased level of consciousness. Patient was brought in the Emergency with no pulse or BP palpable or recordable. After giving necessary treatment and Sessions Case No. 1419/2016 Page 14/39 ASJ-04/East/KKD/Delhi investigation, the patient was taken to operation theatre in no BP or pulse state. In view of severe bleeding from carotid artery, patient could not be revived and he died during operation due to irreversible hemorrhagic shock, at 06.00 pm.
15. Dr. Kapil Gupta, Surgeon, Max Hospital, was examined as PW5. He deposed that on 06.11.2014 patient Govind Mehto was brought in Emergency of Max Hospital, Patparganj, Delhi, at about 03.45 pm in unconscious state with alleged history of stab injury on left side of neck with profuse active bleeding in gasping stage. PW5 was called for assessment as vascular surgeon. After giving necessary treatment and due to active neck bleeding, patient was immediately taken to operation theatre. However, despite all efforts, the cardiac activity could not be revived and be was declared dead at 06.00 pm on 06.11.2014. PW5 stated that the cause to death was ascertained as irreversible hemorrhagic shock with stab wound on left side of neck with active bleeding. PW5 prepared death summery of deceased Ex. PW5/A.
16. IO also got conducted postmortem of deceased Govind Mehto and the same was conducted by PW18 Dr. Ashitesh Singh Bajwa.
He prepared the postmortem report vide Ex. PW18/A wherein the following injuries were mentioned :
External injuries :
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1. Stitched wound 7 cm long with 9 intact stitches was vertically placed at left side of neck, 5 cm below and medial to left angle of mandible, 2.5 cm lateral to supra sternal notch. Oozing of blood was seen from the upper end of the wound.
2. A linear abrasion 1 x 0.2 cm was present at right side of face (temple), 2.5 cm above and front of right tragus of right ear. On dissection, contusion of blood was present at deep tissues.
Internal examination :
No abnormalities were detected at scalp tissues, skull bones and base of the skull. Brain matter meninges and cerebral vessels were found to be pale with no abnormalities.
On dissection of neck, infilteration of blood was present at deep tissues of neck and upper chest wall. Stab wound was seen directed downward and medially and was extended upto medial end of sterno clavicular joint (right side). Stitch wound was seen at lower end of right carotid artery. Depth of wound was 6.1 cm.
All the organs were found pale. Rib cage/ribs were found to be intact. Stomach contained about 400 cc of partially digested food material. Mucosa was found normal. No abnormal smell was perceived.
The cause of death was opined as follows in Ex. PW18/A:
Opinion :
Injuries were ante mortem in origin. The cause of death in this case was hemorrhage and shock due to injury no. 1 which was Sessions Case No. 1419/2016 Page 16/39 ASJ-04/East/KKD/Delhi sufficient to cause death in an ordinary course of nature. The time since death was about 1224 hours.
17. Accordingly, the cause of death in the present case has been established to be hemorrhage and shock due to injury no. 1 which was sufficient to cause death in an ordinary course of nature. Injury No. 1 was 7 cm long vertically placed wound at left side of neck.
18. At the time of arrest of the accused on 07.11.2014 the IO also seized the blood stained vest of the accused vide seizure memo Ex.
PW19/H. The said vest of the accused is Ex. PW19/P1. It is to be noted that during investigation after the arrest of accused Sujeet Kumar, one knife was recovered at the instance of the accused Sujeet Kumar from the bushes of Yamuna Khadar. One public person Deepak was also a witness to the seizure of the said knife from the bushes of Yamuna Khadar. Sketch of said knife, used in the commission of offence, is Ex. PW15/A and the same was seized by the IO vide seizure memo Ex. PW15/B.
19. Deepak was examined as PW15 and he deposed that on 07.11.2014 he used to reside at a jhuggi at Shamshan Ghat, Geeta Colony, Delhi. On 07.11.2014 at about 44.30 pm he was going to attend natures call, when he saw that police persons were present near the bushes of Yamuna Khadar behind Shamshan Ghat. Police called him and asked him about the accused. He informed them that he knew the accused. He Sessions Case No. 1419/2016 Page 17/39 ASJ-04/East/KKD/Delhi correctly identified the accused in court. He stated that at the instance of accused Sujeet Kumar, one knife was recovered from the bushes. The sketch of the knife Ex. PW15/A was prepared, which bore his signatures at PointA. He stated that knife was converted into a pullanda and seized by IO vide seizure memo Ex. PW15/B, which was signed by him. PW15 also identified the knife, which was recovered from the bushes, in his presence as Ex. P1. He also volunteered that at the time of seizure, the knife was stained with blood. Accordingly, as per testimony of PW15 knife Ex. P1 was recovered in his presence from the bushes of Yamuna Khadar and the sketch of said knife is Ex. PW15/A.
20. On 02.12.2014 PW17 HC Kiran Pal handed over one pullanda containing knife to Insp. Arun Chauhan for taking the same to Subzi Mandi Mortuary vide RC No. 145/2021 Ex. PW17/B. The said pullanda containing knife was deposited at Malkhana of PS Geeta Colony duly sealed with the seal of Subzi Mandi Mortuary vide Ex. PW17/C.
21. Subsequently, on 17.12.2014 PW 17 handed over the case property to Const. Kishan for depositing the same at FSL, Rohini, vide RC No. 157/2021 Ex. PW17/D and acknowledgement Ex. PW17/E. The FSL result is Ex. PW21/E and the FSL examination result is as follows :
Result of Examination :
DNA profile of male origin has been generated from the source of exhibit '1' (concrete pieces), exhibit '3a' (track pants of brother Sessions Case No. 1419/2016 Page 18/39 ASJ-04/East/KKD/Delhi of deceased), exhibit '3b' (Tshirt of brother of deceased), exhibit '4' (undershirt/vest of accused), exhibit '5a' (lower of deceased), exhibit '5b' (underwear of deceased), exhibit '5c' (piece of cloth pertaining to deceased), exhibit '5d' (dupatta pertaining to deceased), exhibit '5e' (towel pertaining to deceased), exhibit '5f' (undershirt of deceased), exhibit '7' (blood gauze of deceased) and exhibit '9' (knife). Alleles from the source exhibit '1' (concrete pieces), exhibit '3a' (track pants), exhibit '3b' (Tshirt), exhibit '4' (undershirt), exhibit '5a' (lower), exhibit '5b' (underwear), exhibit '5c' (piece of cloth), exhibit '5d' (dupatta), exhibit '5e' (towel), exhibit '5f' (undershirt) and exhibit '9' (knife) are accounted in the alleles from the source of exhibit '7' (blood gauze of deceased).
Conclusion :
The DNA profiling (STR analysis) performed on the exhibits '1', '3a', '3b', '4', '5a', '5b', 5c', '5d', '5e', '5f', '7' & '9' are sufficient to conclude that the male DNA profile generated from the source of exhibit '1' (concrete pieces), exhibit '3a' (track pants), exhibit '3b' (Tshirt), exhibit '4' (undershirt), exhibit '5a' (lower), exhibit '5b' (underwear), exhibit '5c' (piece of cloth), exhibit '5d' (dupatta), exhibit '5e' (towel), exhibit '5f' (undershirt) and exhibit '9' (knife) are matching with the DNA profile generated from the source of exhibit '7' (blood of deceased).
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22. Accordingly, it is manifest from the FSL result Ex. PW21/E that the clothes seized by the IO during investigation belonged to the deceased. The blood found on the concrete pieces at the spot was also of the deceased. The blood found on the clothes of the brother of the deceased was also of the deceased. Brother of the deceased PW2 deposed that his clothes got blood stained when he was taking his deceased brother to the hospital. Pertinently, the DNA profile generated from exhibit '4' i.e. vest/under shirt of the accused, which was seized vide seizure memo Ex. PW19/H, and exhibit '9' i.e. knife seized at the instance of accused matched with the DNA profile of the blood of the deceased. Hence, it is evident from record that the vest/under shirt of the accused and the knife recovered at the instance of accused, were found stained with the blood of the deceased and thereby connecting the accused with the offence in issue.
23. It is also noteworthy that subsequently an opinion was also sought by PW18 as to whether the injury caused to the deceased was possible by the recovered weapon of offence i.e. knife and PW18 opined that the injuries mentioned in the postmortem report was possible by the examined weapon i.e. a kitchen knife. The said opinion is Ex. PW18/B. PW18 had examined the recovered knife and also prepared sketch thereof as indicated in Ex. PW18/B. PW18 has also described the said recovered weapon i.e. knife as a kitchen knife.
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24. Accordingly, in view of the FSL result Ex. PW21/E, it emerges that the DNA profile of the deceased was generated from the vest / under shirt of the accused Ex. PW19/P1 and the knife Ex. P1, recovered at the instance of the accused. The said knife Ex. P1 was recovered at the instance of the accused as is also evident from the deposition of PW15. Additionally, as per the opinion given by PW18 the injuries mentioned in the postmortem report was possible by the examined weapon i.e. a kitchen knife. Accordingly, the medical and scientific evidence corroborates the testimony of the eye witnesses namely PW2 Bittoo Mehto, PW10 Birju Mehto and PW11 Smt. Geeta Mehto, all have deposed that accused Sujeet had given a serious injury on neck with knife on the person of the deceased Govind. In these circumstances, it is proven on record that the fatal neck injury was given to deceased Govind Mehto with the aid of a knife by accused Sujeet.
25. At this stage, it would be relevant to examine as to whether accused Sujeet is guilty of the offence of murder u/s 302 IPC for causing death of deceased Govind Mehto by giving stab injury on his neck.
26. From perusal of record, having regard to the circumstances that transpired leading to the injury on deceased Govind Mehto, it is manifest that the quarrel had occurred on the spur of moment. The accused came to the place of incident alongwith two other persons to cut banana leaves from the banana tree, which was planted outside house of Sessions Case No. 1419/2016 Page 21/39 ASJ-04/East/KKD/Delhi deceased and his family. He was carrying a kitchen knife with him for the said purpose. Thereafter, PW10 Birju Mehto told accused not to cut banana leaves leading to a quarrel with the accused. His brothers i.e. deceased Govind Mehto and PW2 Bittoo Mehto and his mother PW11 came outside. They tried to save him and at that time the deceased Govind Mehto came there to save his brother and accused Sujeet gave him a knife blow on his neck and thereafter the accused alongwith his associates ran away from the spot. Hence, it is evident that the accused had not come to the house of accused with an intention to kill him but with intention to cut banana leaves and for that purpose he was carrying a kitchen knife with him. Hence, it was only after an altercation in a sudden fight that the accused had given a knife blow on the neck of deceased.
27. At this stage, it is relevant to produce Section 300 which is as under: "s.300. Murder.Except in the case 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 bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Sessions Case No. 1419/2016 Page 22/39 ASJ-04/East/KKD/Delhi Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
Exception 4 Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation It is immaterial in such cases which party offers the provocation or commits the first assault..........."
28. The Hon'ble Supreme Court has, in Shaikh Majid & Anr. Vs. State of Maharashtra & Ors., 2008 (114)CRLJ 1062 SC explained the true position on Exception 4 to s. 300 IPC as follows:
"For bringing in operation of Exception 4 to S. 300 I.P.C., it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both Sessions Case No. 1419/2016 Page 23/39 ASJ-04/East/KKD/Delhi parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
29. In State of A.P. vs. Rayavarapu Punnayya and Another (1976) 4 SCC 382, the Hon'ble Supreme Court while drawing a distinction between Section 302 and Section 304 held as under: "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not viceversa. Speaking generally, "culpable Sessions Case No. 1419/2016 Page 24/39 ASJ-04/East/KKD/Delhi homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304 IPC."
30. In para 21 of the abovesaid judgement, the Hon'ble Supreme Court further observed as follows:
"21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the Sessions Case No. 1419/2016 Page 25/39 ASJ-04/East/KKD/Delhi offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304 of the Penal Code."
31. In Budhi Singh vs. State of Himachal Pradesh, (2012) 13 SCC 663 this Court has held as under: "18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose selfcontrol but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury.
19. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of selfcontrol and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....."
32. In Kikar Singh vs. State of Rajasthan, (1993) 4 SCC 238, the Hon'ble Supreme Court held as under: "8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be Sessions Case No. 1419/2016 Page 26/39 ASJ-04/East/KKD/Delhi satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder.
9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...."
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33. Now, the facts of this case have to be considered on the touchstone of Section 300 Exception 4 in order to find out whether the case falls under the same or not. In the present case, as discussed hereinabove, the fatal injury was caused to deceased Govind Mehto in a sudden quarrel. A quarrel had ensued between the deceased and his fam ily members on one hand and the accused on the other hand as the accused was wanting to cut banana leaves from the banana tree planted outside house of deceased and his family. Accused had come outside house of de ceased and his family with a kitchen knife for the purpose of cutting the banana leaves. These facts show that the attack was not premeditated or preplanned. A quarrel ensued between the accused and the family of the deceased on the issue of cutting banana leaves and when the deceased tried to intervene in quarrel between PW10 Birju Mehto and accused, the accused gave a knife blow on the neck of deceased. Accordingly, the at tack on deceased occurred during a quarrel which occurred on spur of mo ment. The injury was caused with a kitchen knife. It is also evident from the material available on record that the accused had not taken undue ad vantage or acted in a cruel manner as he had caused only one injury on the neck of the deceased with the kitchen knife and thereafter he ran away from the spot. Thus, it emerges that the assault on the deceased was caused during a sudden quarrel without any premeditation. Accordingly, Exception 4 to section 300 I.P.C would be attracted to the facts of the present case Sessions Case No. 1419/2016 Page 28/39 ASJ-04/East/KKD/Delhi
34. In his statement recorded u/s 313 Cr.P.C. the accused has stated that he had been falsely implicated in the case by the police in connivance with the family members of the deceased. He was lifted from his house forcibly. His signatures were taken on some blank papers and he was falsely implicated in the present case.
35. Ld. Counsel for the accused urged that a quarrel took place between the deceased with his brothers, during which he was killed by one of his brothers, which fact has also been corroborated in the testimony of PW2 Bittu Mehto, who stated that his clothes got blood stained in the incident. However, no such suggestion was put to PW2 Bittu Mehto or to PW10 Birju Mehto and only a suggestion in this regard was put to PW11 Geeta Mehto that the accused Sujeet had come to pacify the quarrel between her sons, which suggestion was denied by PW11. Merely the fact that the clothes of PW2 Bittu Mehto were blood stained does not lead to the conclusion that he had killed his brother Govind Mehto as PW2 had taken his brother to the hospital and he also deposed that his clothes got blood stained when he was taking his brother Govind Mehto to the hospital. PW10 also deposed on similar lines that the clothes of his brother got blood stained when he was taking deceased to Govind Mehto to hospital. In fact the accused has failed to explain as to how his vest/undershirt was stained with the blood of the deceased.
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36. It is also noteworthy that the accused has put a suggestion to PW2 and PW10 that after the incident the house of the accused was set on fire by them or that they had also molested sisters of the accused after the incident. The said suggestions were denied by PW2 and PW10. However, no evidence has been led by the accused to prove the said fact. Moreover, these suggestions indicate that the brothers of deceased may have acted in retaliation after the incident. The above stand taken by the accused has not even been stated in his statement under section 313 Cr. P.C. Accordingly, the defence sought to be taken by the accused has not been proved on record.
37. The only defence taken in the statement recorded u/s 313 Cr.P.C. is that the present case has been filed against the accused by the police in connivance with the family members of the deceased. No suggestion in that regard has been put to PW2 or PW10 or PW11 and the suggestion in that regard has been denied by the IO PW20. No suggestion has been put even to the IO as to why the IO would have falsely implicated accused Sujeet in the present case. In these circumstances, the defence raised by the accused Sujeet is a bald one and remains unsubstantiated.
38. It is contended that PW11 Smt. Geeta Mehto, mother of the deceased, deposed that one more person had accompanied the accused, though the brothers of the deceased i.e. PW2 and PW10 stated that two Sessions Case No. 1419/2016 Page 30/39 ASJ-04/East/KKD/Delhi more persons accompanied the accused and hence there is material contradiction in that regard in the testimonies of the alleged eye witnesses.
39. It is accordingly argued on behalf of the counsel for the accused that the testimony of the witnesses is full of contradictions and therefore they lose their sanctity and credibility and on the basis of such testimony, the accused cannot be convicted. In this regard, the judgment of the Hon'ble Supreme Court in the matter of Mritunjoy Bishwas Vs. Pranab, 2013 (12) SCC 796, is referred to wherein the Hon'ble Supreme Court has held as follows:
"It is well settled in law that the discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness."
40. In State of U. P. V. Bhagwan, AIR 1997 SC 3292, it was held as under :
"But minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution."
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41. From the aforesaid decisions of the Hon'ble Supreme Court, it emerges that if an omission or discrepancy goes to the root of the matter, they need to definitely be taken into account, however every omission cannot take place of a material omission and therefore minor contradictions and inconsistencies should not be a ground to reject the prosecution case. Those discrepancies that do not affect the core of the prosecution case are immaterial and are not sufficient to discard the evidence of the witnesses.
42. In this regard it is relevant to note that in the initial complaint Ex. PW2/A the complainant Bittu Mehto had mentioned that accused Sujeet, who used to reside in their gali came alongwith his two companions and started to cut banana leaves with a knife. Subsequently, in his testimony recorded before the court also PW2 Bittu Mehto mentioned that accused Sujeet was accompanied by two persons, whom PW2 Bittu Mehto did not know. PW10 Birju Mehto also deposed on similar lines and stated that the accused had come to their house/jhuggi alongwith his two friends. PW10 Birju Mehto also deposed that he was present outside his house when the accused alongwith his two friends came there to cut banana leaf from near their house. At that time his brother Govind Mehto (deceased), PW2 Bittu Mehto and his mother Geeta Mehto (PW11) were inside the jhuggi. After hearing the quarrel, his brothers and mother came outside and intervened and his mother and Sessions Case No. 1419/2016 Page 32/39 ASJ-04/East/KKD/Delhi brothers tried to save him. Accordingly, when PW11, mother of deceased, came out of the jhuggi, the quarrel had already started between the accused and PW10 Birju Mehto. No active role has been ascribed by any of the prosecution witnesses to other two companions of the accused Sujeet. In these circumstances, the fact that the mother of the deceased had noticed only accused Sujeet and his one more companion, who had not taken any active role in the incident, cannot be termed as a material contradiction.
43. It is further contended that on one hand PW1 deposed that at the time of incident, wife of his deceased brother was not present as she was at her parental house situatated near their residence, whereas, on the other hand PW2 Bittu Mehto in his crossexamination stated that wife of his deceased brother Govind Mehto namely Rinku also accompanied them in the auto to the hospital. It is stated that the said fact is also a material contradiction in the testimony of PW2 and PW10, brothers of deceased.
44. It is to be noted here that the abovesaid discepancy does not affect the core of the prosecution case and is immaterial and is not sufficient to discard the evidence of the witnesses as it does not detract from the main allegations levelled against the accused.
45. It is also argued that though as per the FIR Ex. PW1/B the incident had occurred at 03.00 pm, however, PW5 Dr. Kapil Gupta Sessions Case No. 1419/2016 Page 33/39 ASJ-04/East/KKD/Delhi deposed that the deceased was brought in emergency of Max Hospital, Patparganj, Delhi, at about 03.45 pm and PW6 Dr. Abdul Hai Gojwari, Attending Consultant Emergency, Max Hospital, Patparganj, Delhi, deposed that injured Govind Mehto was brought in the hospital at about 03.30 pm. The FIR was registered at 05.15 pm, only after manipulation i.e. after about two and half hours while adding the name of the accused. It is urged that though PW2 stated that the incident occurred between 3.00
- 4.00 pm on 06.11.2014, PW10 and PW11 stated that the incident had occurred at around 03.00 pm. It is accordingly stated that there is material contradiction regarding time of incident as stated by PW1, PW10 and PW11. It is urged that there is no mention of the name of the accused in the MLC indicating thereby that the name of the accused has been added as an afterthought in the present case, which is also reflected from the fact that despite the incident having occurred at around 3.00 pm, the FIR was registered only at 05.15 pm after a delay of more than two hours. It is urged that name of the accused was not revealed in initial investigation and it is only at the later stage that the name of the accused was added in the present case at the instance of the police.
46. The incident took place around 03.00 pm, the deceased reached the hospital around 3.3.0 pm. The IO also recorded statement of the complainant Bittu Mehto at the hospital, who had taken the injured Govind Mehto to the hospital. Hence, under these circumstances, it cannot be stated that merely because the name of the accused is not Sessions Case No. 1419/2016 Page 34/39 ASJ-04/East/KKD/Delhi mentioned in the MLC, it can be inferred that the name of the accused was added in the complaint as an afterthought. The rukka was prepared in the hospital at about 04.30 pm on the basis of statement of PW2 Bittoo Mehto and eventually the FIR was registered at 05.15 pm. Hence, it cannot be said that there is delay in registration of FIR and the contention of the ld. Counsel for accused in this regard is untenable. Even contradictions as alleged regarding time of incident to be 03.00 pm as stated by PW2 Bittu Mehto and 03.30 pm as stated by PW 10 & PW11, is not a material contradition as the witnessed are not expected to remember with exact accuracy the minutest details of the incident especially in a situation where their close family member had sustained serious injury. Even otherwise the prosecution witnesses PW2, PW10 and PW11 have given consistent accound of the incident, that transpired on 06.11.2014 leading to death of deceased Govind Mehto. The Hon'ble Supreme Court in the its judgment in 2011 (2) ACJ 076 (SC) differentiated between normal discrepancies and the contradictions and it was held that :
" In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about truthfulness of the witness and other witnesses also make material improvements while deposing in the court, such evidence cannot be safe to rely upon. However minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not effect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence."
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47. Viewed in light of the above, there is no material contradiction in the versions of the aforesaid witnesses PW2, PW10& PW11 and their testimonies stand corroborated on material particulars. Their testimonies are a natural version of the incident and inspire confidence of the court. The minor contradictions pointed out by the Ld. Counsel for the accused cannot be made a ground to reject the prosecution case.
48. It is contended by the ld. Counsel for the accused Sujeet that despite the incident having occurred in day time, no public witness of the incident has been examined in the present case. It is urged that only the mother and brothers of the deceased have been examined as witnesses and they being interested witnesses, their testimonies are not reliable. It is well established principal of law that evidence of a witness cannot be discarded merely on the ground that the witness is a relative or an interested witness. The evidence of an interested witness can be relied upon, if it is found to be trustworthy and credible. If after careful scrutiny it is found unreliable and improbable or suspicious, it ought to be rejected. When a witness has a motive or makes a false implication, the court should scrutinize the evidence of such witness with care.
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49. As discussed hereinabove, the testimonies of PW2, PW10 and PW11 are consistent and are a natural version of the events that transpired at the time of incident. Their testimonies stand corroborated by medical and forensic evidence. They are trustworthy and inspire the confidence of the court to be relied upon. There is no reason to disbelieve their testimonies. No cogent reason for false implication of the accused has been established on record.
50. It is vehemently argued that it is the case of the prosecution that accused Sujeet was accompanied by two more persons, however, the charge sheet is silent on those two persons, their names, addresses etc. and no investigation has been conducted qua those persons as they or the accused had never gone there to cut banana leaves. As regards defective investigation, it is settled law that defect in investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in criminal justice system would be erroded (Gajju v. State of Uttrakhand, 2012 (9) SCC 532 and C.Muniappan & Others vs. State of Tamilnadu, 2010 (9) SCC 567 referred to.)
51. Thus, on the basis of the evidence on record including the testimony of the PW2, PW10 and PW11 mother of deceased which have remained unimpeached despite being crossexamined at length except for Sessions Case No. 1419/2016 Page 37/39 ASJ-04/East/KKD/Delhi minor discrepancies without affecting the core of the prosecution's case, coupled with the FSL result Ex. PW21/E as per which DNA profile of the deceased was generated from the vest/undershirt of the accused Ex. PW19/P1 and the knife Ex. P1, which was recovered at the instance of the accused. Additionally, as per the opinion given by PW18 the injury mentioned in the postmortem report was possible by the examined weapon i.e. a kitchen knife. Accordingly, the medical and scientific evidence corroborates the testimony of the eye witnesses namely PW2 Bittoo Mehto, PW10 Birju Mehto and PW11 Smt. Geeta Mehto, all of whom have deposed that accused Sujeet had given a serious injury on neck with knife on the person of the deceased Govind. In these circumstances, it is proven on record that the fatal neck injury was given to the deceased Govind Mehto with the aid of a knife by accused Sujeet.
52. As discussed hereinabove, it emerges from the testimonies of PW2, PW10 and PW11 that the assault on the deceased was caused during a sudden quarrel without any premeditation on a spur of moment with a kitchen knife. The accused did not take any undue advantage or acted in a cruel manner. In this fact situation, Exception 4 to section 300 I.P.C is attracted to the facts of the present case. Since the injury with the kitchen knife was caused on the neck of the deceased, hence, the same can be stated to have been caused with the intention of causing such bodily Sessions Case No. 1419/2016 Page 38/39 ASJ-04/East/KKD/Delhi injury as is likely to cause death. The accused is therefore held guilty of the offence under section 304 (PartI) I.P.C.
53. In view of the aforesaid discussion, accused Sujeet Kumar is held guilty and is convicted for the offence of culpable homicide not amounting to murder punishable u/s 304 (PartI) IPC.
Announced in the open Court on this 20th day of September, 2022 (Deepali Sharma) Additional Sessions Judge04 East District/KKD Courts/Delhi.
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