Delhi District Court
C Shape Surgical Stitch Craniotomy ... vs . on 10 November, 2010
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL
SESSIONS JUDGE01, NORTH, DELHI.
FIR No.: 492/2006
PS: Timar Pur
U/s: 323/324/308/302/147/148/149/34 IPC
S.C. No.: 05/2007
Case ID No.02401R0087002007
In the matter of:
State
Vs.
1. Shashi Kant
S/o Madan Singh
R/o House no. 1015, Gali No.8, D Block
Natthu Pura, Delhi(Facing Trial in Juvenile Justice Board)
2. Rama Kant
S/o Madan Singh
R/o House no. 1015, Gali No.8, D Block
Natthu Pura, Delhi
3. Phoolwati
W/o Madan Singh
R/o House no. 1015, Gali No.8, D Block
Natthu Pura, Delhi
4. Ashish
S/o Sh. Mahesh Singh
R/o Village Khandol, District Ara, P.S. Sandesh, Bihar
S.C. No.: 05/2007 1/35
5. Rekha
W/o Ashish
R/o Village Khandol, District Ara, P.S. Sandesh, Bihar
6. Madan Singh
S/o Sh. Bhikhari Singh
R/o House no. 1015, Gali No.8, D Block
Natthu Pura, Delhi
7. Shri Kant
S/o Madan Singh
R/o House no. 1015, Gali No.8, D Block
Natthu Pura, Delhi
Date of receiving in Sessions Court : 7.2.2007
Arguments Heard : 25.10.2010 & 26.10.2010
Date of Judgement : 10.11.2010
JUDGEMENT
Case Of Prosecution:
1. On 24.10.2006 at about 8.20 p.m. DD no. 27 regarding a quarrel was received at PP Burari. On receipt of the DD, ASI Sambhu Dayal alongwith Constable Kishan Bahadur reached at the spot at house no 1015,Gali no.8, D Block, Nathupura, Delhi where it transpired that the injured have been taken to Aruna Asaf Ali Hospital by the PCR Van.
Since no eye witness was found at the spot, therefore IO alongwith Constable Kishan Bahadur reached at Aruna Asaf Ali Hospital where he S.C. No.: 05/2007 2/35 obtained the MLC of injured Netrapal, Jai Kant, Shashi Kant, Maya Devi and Anuj. There he recorded the statement of complainant Rani Devi wife of Netrapal who gave her statement that she alongwith her family resides at house no 1015,Gali no.8, D Block, Nathupura, Delhi. At about 8 p.m. the electricity of her house went off and she alongwith her husband went outside to see the electricity pole. They saw that one of accused J.J. Kant, (Juvenile) was shaking the electricity pole and when her husband objected the same, J.J. Kant called his other family members also. Accused Shashi Kant was having a Kulhadi in his hand, accused Rama Kant was having an iron pipe, accused Shrikant was having a Gadela and accused Madan was holding a danda in his hand. All these persons started giving beatings to her husband. Accused Shashi Kant hit a Kulhadi blow on the head of her husband. Seeing this, she started shouting for help. On hearing her cries, her Sister in law (Jethani) and nephew Anuj came to their rescue. In between the mother of accused Shashikant, his sister Rekha and the husband of Rekha also came there with dandas and they gave beatings to her Sister in law and nephew Anuj. Thereafter she called at 100 number and the PCR van took all the injured to hospital. On the basis of statement of complainant, case U/s 308/34 IPC was registered against the accused persons. During the course of investigation, IO prepared the site plan, arrested all the accused persons and recorded their disclosure statements. Accused Ramakant got recovered an iron pipe and accused Shashi Kant and Phoolwati got S.C. No.: 05/2007 3/35 recovered a danda which were taken into possession. On 3.11.2006 an information regarding the death of injured Netrapal was received from Trauma Centre and accordingly postmortem on the dead body of deceased was got conducted by the IO. Sections 323/324/304 IPC were added in the charge sheet and further investigation of the case was transferred to Inspector Sunil Tyagi who during the further course of investigation obtained the MLC of injured Anuj. Sections 302/147/148/149 IPC were also added in the charge sheet. Exhibits of the case were sent to FSL, Rohini for expert opinion and after completion of investigation, challan against the accused persons was filed in the court.
2. Since the offence u/s 308/302 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, the Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case U/s 147/148/302/149 IPC & sec. 308 IPC r/w sec. 149 IPC was made out against all the accused persons. Charge was framed against them to which they pleaded not guilty and claimed trial. Accused Shashi Kant was sent to Juvenile Justice Board to face trial vide order dated 12.10.2007.
Witnesses Examined:
S.C. No.: 05/2007 4/35
4. In support of its case, prosecution has examined 26 witnesses in all.
5. The brief summary of the deposition of prosecution witnesses is as under:
Formal witnesses:
6. PW4 is Vijay Pal and PW5 is Krishan Pal, brothers of the deceased who identified and received the dead body of deceased vide memo Ex. PW4/A.
7. PW8 is Constable Sunder Singh, the DD writer who recorded DD no.27 regarding the quarrel and proved the same as Ex. PW8/A.
8. PW9 is Head Constable Shailandra who alongwith the IO ASI Sambhu Dayal reached at Trauma Centre and obtained the dead body of deceased Netrapal and got the postmortem examination of dead body done from Subzi Mandi Mortuary. In his presence, the dead body was handed over to the brothers of deceased and sealed parcels of the blood of deceased and other samples given by the concerned doctor were seized by the IO.
9. PW11 is Head Constable Harjiram, the duty officer who recorded the FIR and proved the same as Ex. PW11/A.
10. PW12 is Constable Kishan Bahadur who alongwith the IO reached at the spot for verification of the DD. Thereafter he accompanied the IO to Aruna Asaf Ali Hospital where IO recorded the statement of complaint Rani Devi and he took the rukka to Police Station Timar Pur S.C. No.: 05/2007 5/35 for registration of the case. In his presence, accused Ramakant, Jai Kant, Shashi Kant and Phoolwati were arrested and the weapons of offence were also recovered at their instance by the IO.
11. PW 18 is Constable N.C. Joseph who took the sealed parcels to FSL, Rohini and deposited the same there. He stated that as long as the case property remained in his custody, nobody tampered with the same.
12. PW 20 is Raju, the neighbour of accused persons who stated that accused Madan Singh and his family members used to reside at house no. 1015 in their street. The accused persons had quarrelled with Netrapal and his family members and he came to know that accused persons had beaten Netrapal due to which he died.
13. PW 21 is SI Mahesh Kumar, the Draftsman who took the measurement and prepared rough notes on the basis of which he prepared scaled site plan and proved the same as Ex. PW21/A.
14. PW 23 is Constable Hari Dutt who was posted in PCR control room and received the information regarding the quarrel at D Block, Gali no.8, Near Devender Doctor, Nathupura, Delhi and reduced the same into writing and proved the same as Ex. PW23/A.
15. PW 25 is Sonu who stated that one day police officials reached in the gali and asked him about the house of Madan and his family. On the day, the house was locked as they were not there and he came to know that a quarrel between family of accused persons and Netrapal, the deceased had taken place in which the deceased Netrapal S.C. No.: 05/2007 6/35 had died. This quarrel took place in the year 2006 near Diwali.
16. PW 26 is Sh. A.K. Srivastava, Assistant Director, Biology, from FSL, Rohini who examined the case property and proved the report as Ex. PW26/A and Ex. PW26/B. Medical Witnesses:
17. PW1 is Dr. Vijay Khari, Medical Officer from Aruna Asaf Ali Hospital who examined the injured Anuj, Netrapal and Maya Devi and proved the MLC as Ex. PW1/A, Ex. PW1/B and Ex. PW1/C respectively.
18. PW6 is Dr. Ashit Kumar Singh, Senior Resident from Aruna Asaf Ali Hospital who examined injured Anuj from surgical point of view and proved his clinical notes on the MLC Ex. PW1/A.
19. PW7 is Dr. S.Lal from Subzi Mandi Mortuary who conducted postmortem on the dead body of deceased and proved the report as Ex. PW7/A. He also gave opinion of the weapon of offence and proved the same as Ex. PW7/B.
20. PW 14 is Dr. Deepak, CMO from Sushruta Trauma Centre who proved the death summary of deceased Netrapal as Ex. PW14/A.
21. PW 16 is Dr. P.S. Kiran, Radiologist from Aruna Asaf Ali Hospital who examined the XRay plates of injured Anuj and proved her report as Ex. PW16/A.
22. PW17 is Dr. Gaurav Mittal, S.R. (Ortho) from Aruna Asaf Ali Hospital who proved the endrosement on the MLC Ex. PW1/A of injured S.C. No.: 05/2007 7/35 Anuj from Ortho point of view.
23. PW22 is again Dr. Deepak Kumar, CMO from Sushruta Trauma Centre who proved the opinion of Dr. Arvind Pratap on the MLC Ex. PW22/A of injured Anuj as grievous one.
Material Witnesses:
24. PW2 is Smt. Rani Devi, complainant of the case who stated that she does not remember the month but it was 24th of a month and it was the day of Bhaiyadooj. At about 8 p.m. the electric light of her house went off. So her husband went outside house to see the wire and she also went out alongwith her husband. The electric wire through which the electricity comes to her house was being shaken by accused J.J. Kant from the wooden pole and due to shaking of wire, the electricity was not coming to her house. Her husband objected and asked as to why he is shaking the wire. On the objection of her husband, accused J.J. Kant called accused Ramakant, Madan, Jai Kant, Shashi Kant, and Shri Kant by calling them loudly and accused Ramakant, Madan, Shri Kant, Phoolwati, Rekha and son in law of accused Madan present in the court reached there. She further stated that accused Madan was holding a lathi in his hand, accused Rama Kant was holding an axe in his hand, accused Shri Kant was holding a pipe and son in law of accused Madan was having a phawra in his hand. They all grappled with her husband and started hitting axe blows, danda blows and iron pipe blows with their respective weapons. Accused Rama Kant hit axe blow on the head of her S.C. No.: 05/2007 8/35 husband, accused Phoolwati and Rekha also gave laathi blows to her husband. She further stated that her nephew Anuj tried to intervene but the accused persons also gave beatings to him with lathi, danda and with their other weapons. Her husband fell down on the ground. Maya Devi and Anuj also fell down on the ground and she informed the police on 100 number. Police of 100 number came there and took her husband Netrapal, Maya Devi and Anuj to Aruna Asaf Ali Hospital. She also went to the hospital and police recorded her statement Ex. PW2/A. She further stated that lateron her husband died in the Trauma Centre and all the accused persons were arrested at her instance by the police. The witness further identified all the accused persons present in the court as well as the weapons used by the accused persons during the quarrel.
25. PW3 is Smt. Maya Devi, one of the injured. She stated that on 24th day of the month of Kartik on the eve of Bhaidyadooj, her Nand (sister in law) had come to her house . Her brother in law (Devar) Netrapal alongwith his family was living at a distance in street no.8, house no. 1005, Nathupura. She stated that her Nand was not aware about the location of the house, so she and her son Anuj went alongwith her Nand at the house of Netrapal. They were sitting inside the house of Netrapal and at about 8 p.m. electricity of the house of Netrapal went off. Netrapal came out from his house to see the electric wire. On hearing the noise, Rani Devi, the wife of Netrapal also went outside. Thereafter they heard cries of Rani Devi in loud voice and she and her son Anuj also S.C. No.: 05/2007 9/35 went outside where they saw that Netrapal was lying in a pool of blood and eight persons were beating him including the two lady present in the court. She further stated that all the four main accused persons present in the court were beating Netrapal alongwith their two more associates who are not present in the court with Kulhari, Phawra, iron pipe, Ghandala, danda and lathi. She and her son Anuj tried to save the deceased Netrapal but accused persons gave beatings to them also with axe and danda etc. They also caused injury on their head and other parts of the body. Thereafter she and her son also fell down on the ground and police removed them to the hospital where they were given treatment. She further stated that Netrapal was sent to Trauma Centre where he died after 10 days.
26. PW10 is Women Constable Neetu in whose presence accused Phoolwati was arrested at the instance of complainant Rani Devi.
27. PW 13 is Anuj Kumar, another injured of the case. He stated that on 24th of a month, year 2006 it was the day of Baiya Dooj. At about 8p.m. his aunt (Bua) came to his house on the eve of Bhaiya Dooj. She had to go to the house of his uncle Netrapal at House no. 1005, Gali no. 8, B Block, Nathupura. As she was not aware about the location of the house of his uncle Netrapal, so he and his mother went with her Bua to the house of his uncle Netrapal. He stated that he, his mother, his Bua and his uncle Netrapal were sitting inside the house of his uncle Netrapal and his aunt (Chachi, w/o his uncle Netrapal) was preparing tea. At that S.C. No.: 05/2007 10/35 time electric light went off. His uncle Netrapal went outside to see the electric wires. He came back and told them that electric light is available in the other houses and he again went out to see the electric wire. After about 2 minutes they heard noise and cries coming outside the house on which his aunt i.e. wife of Netrapal went out outside to see the quarrel. In the meantime the cries of his aunt also came and on hearing the cries and quarrel, he and his mother went outside to see the quarrel. He saw that all the male and female accused person present in the court were beating his uncle Netrapal and his wife with an axe, an iron pipe, dandas, gadehla and faavda. His uncle Netrapal was lying on the ground and accused persons were giving beatings to him by abovesaid arms and his aunt (the wife of the deceased) was trying to save him. The accused persons were also beating his aunt. He and his mother tried to save them but the accused persons gave beatings to them also. He further stated that he and his mother were beaten by accused Shashi Kant and other accused persons but he does not remember their names. He was hit with a Kulhadi on his eye brow and he remained in the hospital for about one and half months. He further identified the weapons used by the accused persons during quarrel.
28. PW 15 is Inspector Sushil Kumar, Second IO of the case who sent the weapons of offence to FSL for expert opinion, arrested accused Shri Kant, Madan, Rekha and Ashish, recorded their disclosure statements and after completion of investigation, filed the challan in the S.C. No.: 05/2007 11/35 court.
29. PW19 is Head Constable Sanjay Tyagi who alongwith the IO and other police officials arrested accused Shrikant, Rekha and Madan Singh.
30. PW24 is ASI Sambhu Dayal, first IO of the case who on receipt of the information reached at the place of occurrence, recorded the statement of witnesses, prepared the site plan and arrested accused Jai Kant, Shashi Kant, Phoolwati and Ramakant. In his presence, second IO arrested remaining accused persons and recorded their disclosure statements. The witness further identified all the accused persons present in the court as well as the weapons of offence used by the accused persons.
31. Statement of all the accused U/s 313 Cr.P.C. was recorded wherein they all denied the case of prosecution and stated that they are innocent and they have been falsely implicated by the wife of deceased owing to previous rivalry due to electricity problem.
32. All the accused further chose to lead evidence in defence and examined two witnesses in their defence.
33. DW1 is Head Constable Kuldeep Singh who proved the FIR no. 493/06 registered on the complaint of Shashi Kant S/o Madan Lal as Ex. DW1/A.
34. DW2 is Sh. Ramesh, Assistant Ahlmad from JJB1, Kingsway Camp, Delhi who brought the statements of Rani Devi, Maya Devi, Anuj, S.C. No.: 05/2007 12/35 Constable Kishan and ASI Sambhu Dayal recorded in case against accused Shashi Kant and J.J. Kant pending trial in Juvenile Justice Board1, Kingsway Camp, Delhi and proved the same as Ex. DW2/A to Ex. DW2/E.
35. I have heard the Ld. Counsel for accused persons as well as Ld. APP for the state and have carefully perused the record.
36. Ld. defence counsel argued that from the testimony of PW2, it is clear that she has falsely implicated the other accused persons and other accused persons have been roped in only to take revenge. He further argued that there are discrepancies in the statement of witnesses the benefit of which must go to the accused persons. He further argued that it was only a sudden fight or quarrel between the deceased and the accused who is minor and PWs have taken the name of other accused persons only to rope them in. He argued that keeping in view the discrepancies in the statement of witnesses, accused are entitled for acquittal. He further argued that the case is covered U/s 304 IPC as it was a case of sudden fight and no intention can be attributed to any of the accused persons to cause murder of deceased Netrapal.
37. On the other hand, Ld. APP for the state argued that all the accused persons gave blows to the deceased which was sufficient in the ordinary course of nature to cause his death and slight discrepancies here and there in the statement of witnesses, does not go to the root of the case and does not shake the case of prosecution.
S.C. No.: 05/2007 13/35
38. In the present case PW2, PW3 and PW13 are all the eye witnesses of the case.
39. PW2 has deposed that it was 24th of a month and it was the day of Bhaiyadooj of year 2006. She does not remember the month but at about 8 p.m. the electric light of her house went off. So her husband went outside house to see the wire and she also went out alongwith her husband. The electric wire through which the electricity comes to her house was being shaken by accused J.J. Kant from the wooden pole and due to shaking of wire, the electricity was not coming to her house. Her husband objected and asked as to why he is shaking the wire. On the objection of her husband, accused J.J. Kant called accused Ramakant, Madan, Jai Kant, Shashi Kant, and Shri Kant by calling them loudly. She further stated that accused Madan was holding a lathi in his hand, accused Rama Kant was holding an axe in his hand, accused Shri Kant was holding a pipe used in the digging of soil and son in law of accused Madan was having a phawra in his hand. They all grappled with her husband and started hitting axe blows, danda blows and iron pipe blows with their respective weapons. Accused Rama Kant hit axe blow on the head of her husband, accused Phoolwati and Rekha also gave laathi blows to her husband. She further stated that her nephew Anuj tried to intervene but the accused persons also gave beatings to him with lathi, danda and with their other weapons. Her husband fell down on the ground. Maya Devi and Anuj also fell down on the ground and she S.C. No.: 05/2007 14/35 informed the police on 100 number. Police of 100 number came there and took her husband Netrapal, Maya Devi and Anuj to Aruna Asaf Ali Hospital. She also went to the hospital from where her husband was referred to Trauma Centre. The police recorded her statement Ex. PW2/A. She further stated that lateron her husband died in the Trauma Centre. She further stated that the police recovered an axe, pipe and a phawra at the instance of accused persons and the disclosure statement of accused were also recorded but at that time she was under depression. This witness further stated the she is illiterate and know her signatures in Hindi only and so she had not gone through the memos when she signed. The witness has stated that she is illiterate and know her signatures in Hindi only and she had not gone through the memos but she has clearly identified her signatures on all the memos and further has stated that the disclosure statements and other memos were prepared by the police in her presence. She has further stated that at that time, she was under
depression. PW2 is an illiterate lady. Her husband died suddenly which she would also not have imagined and in such circumstances her state of mind if she was under depression cannot be ruled out. She has also identified the weapons of offence. Though on certain points she has been declared hostile by Ld. APP for the state but in Crl. Appeal No. 139/2008 titled as Bindu Vs. State, it has been held by Hon'ble High Court that: S.C. No.: 05/2007 15/35 " It is well settled law that the evidence of a hostile witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed out the record altogether. The testimony of such witnesses can be considered and accepted by the court to the extent their version is found to be dependable on a careful scrutiny thereof. The portion of the evidence which is consistent with the case of the prosecution or defence as recorded by the court cannot be held to have washed off or unavailable to the prosecution to prove the guilt of the accused.
In the present scenario where the witnesses are illiterate and jhuggi inhabitants have supported the prosecution case on all material particulars except that either they did not depose certain facts or slightly made variations in their statements made before the police and to the court.
As already pointed above, these variations under the circumstances of the case which were natural with the lapse of time and the individual memory and intelligence of the witnesses are bound to occur. These variations in no manner can be considered fatal to the prosecution case" .
40. In the present case also PW2 is an illiterate lady. Moreover when she had been cross examined by Ld. APP for the state, then in her cross examination also she has fully supported the case of prosecution. She has stated that accused ShashiKant was holding an axe in his hand, accused Rama Kant was holding a pipe in his hand, and accused Shri Kant was holding a 'Ghandela' an instrument for digging soil and accused Madan was holding a danda in his hand. She further stated that she was not knowing the accused persons with their correct names as they were S.C. No.: 05/2007 16/35 having their names with 'Kant', therefore there was slight confusion. During her cross, she pointed out towards all the accused with her fingers stating which of the accused was holding which of the weapon of offence. Thus, she has clearly pointed out towards all the accused persons in the court alongwith the weapons of offence which they were carrying in their hands at the time of ocurrence.
41. So far as accused Shri Kant is concerned, then in her chief examination also PW2 has stated that he was having a pipe which is used for digging of the soil. And again she has stated that it was a Gandela, an instrument used for digging soil. Thus, the weapons of offence though has been named differently by PW2 but the purpose that same is used for digging the soil has been clearly stated by her twice. There can be difference in translation from Hindi to English for the word 'Gandela' but she has specifically stated that same is used for digging of soil.
42. Ld. Defence counsel argued that the witness is pretending that she is illiterate whereas her IQ is not low and she has clearly taken the name of all the accused persons. It may be mentioned that it is not that the illiterate person will be having low IQ always. PW2 has not only taken the names of all the accused persons but has clearly pointed out by her fingers towards all the accused persons and has also identified them with the weapon of offence which they were carrying. No doubt it was a sudden fight on a very trivial issue i.e. on the shaking of wire of electric pole but the actus reus attributed to all the accused persons has been S.C. No.: 05/2007 17/35 duly stated by PW2.
43. Ld. Defence counsel argued that though the other injured i.e. PW3 Maya Devi and PW13 Anuj received injuries but it is very strange that PW2 who was also present at the spot, did not receive any injury. PW2 has clearly stated that when accused started beating her husband, she started shouting and in the meanwhile her nephew Anuj came and tried to save her husband. In the process, Maya Devi also came and received injuries. Ld. APP for the state argued that it might have been possible that while shouting PW2 went inside her house and also called the police at 100 number and therefore if she did not receive any injury no presumption can be raised that she was not present at the spot. The submissions of Ld. APP for the state bears force and cannot be ignored.
44. In the cross examination of PW2, she has clearly stated the name of all the accused persons. Though in her statement given to the police, PW 2 had stated that son in law of accused Madan was having a danda but in the court she has clearly stated that he had a Fawrah in his hand. She has further stated that all the accused persons attacked her husband. She has stated that she gave this statement to the police. Though these words are not specifically mentioned in her statement given to the police but from her statement, it is clear that she had taken the name of all the accused persons. The statement of PW2 inspires confidence and she does not seem to be tutored one. She has clearly stated that police did not record her statement at the spot at that time. Therefore, these S.C. No.: 05/2007 18/35 discrepancies in her statement does not shake the case of prosecution as they are minor in nature and does not go to the root of the case. 45 . In their defence accused themselves have got proved the FIR no. 493/06 which is a cross case registered by Shashikant against the deceased Netrapal, Rani Devi, Maya Devi and Anuj. This cross case itself proves the fact that the quarrel took place on that day i.e. on 24.10.2006.
46. Ld. Defence counsel argued that it is thickly populated area and PW2 has also taken the name of her other neighbourers. Still no other independent public witness has been made a witness in this case by the IO and PW2, PW3 and PW13 are all related to each other. No doubt PW2, PW3 and PW13 are all related to each other but these are the persons who were present at the spot and, therefore, in such circumstances only they can depose about the factum of incident with them. PW3 and PW13 also received injuries in the quarrel. Merely because they are related to each other is no ground to discard their testimony.
47. In Vinay Kumar Rai and Another Vs. State of Bihar 2008 V AD (Cr.) (SC) 392 it has been held by Hon'ble Supreme Court that "Para no. 6: Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relative of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding S.C. No.: 05/2007 19/35 interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. Para no.13: The over insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house, it is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against nonexamination of such person as prosecution witness. Otherwise, merely on surmises the court should not castigate a prosecution for not examining other persons of locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnesses the events and not those who have not seen it though the neighbourhood may be replete with other residents also''.
48. So far as the non joining of independent public witnesses are concerned then it is of common knowledge that now a day in city like Delhi though a crowd collects at the spot whenever an incident takes place but hardly any one is willing to join the investigation for the fear of police or court rounds and present case is also no exception to this rule.
49. Counsel for the accused further argued that PW2 is able to remember the name of all the accused persons very clearly but for manipulations, she has taken the false plea that she does not know their S.C. No.: 05/2007 20/35 names exactly as they were having their names by 'Kant'. It is a matter of record that all the accused persons except for one or two are having their names by Kant like Shri kant, Rama Kant, Shashi Kant. In such circumstances, seeing the status of PW2 as she is an illiterate lady, the possibility that she got some confusion regarding the names of accused having their names by Kant cannot be ruled out. PW2 has further clarified that accused Ashish was having a Fawrah but immediately thereafter he brought an iron pipe also. She has further stated that she remained in the hospital for about 12 days where her husband breathed his last. She has also admitted that accused persons used to fiddle with wooden electricity pole and by the act of accused persons they often get annoyed. She has denied a suggestion that she has falsely implicated the whole family members of the accused persons.
50. During the cross examination of PW2, a suggestion has been given to her that on the day of incident, some unknown persons had beaten her husband and also two of the accused and lateron PW2 falsely implicated the accused persons. Though in the cross examination of PW2, accused have taken this defence but during their defenc evidence, accused have taken a contradictory defence as they themselves have proved the FIR recorded against PW2, PW3 and PW13 alongwith deceased Netrapal by one of the accused which falsifies the defence of the accused persons that deceased was beaten by someone else.
51. PW3 is Maya Devi. She stated that about one and half years S.C. No.: 05/2007 21/35 ago, it was 24th day of the month of Kartik on the eve of Bhaidyadooj, her Nand (sister in law) had come to her house . Her brother in law (Devar) Netrapal alongwith his family used to live at house no 1005, street no.8, Nathupura. Since her Nand was not aware about the location of the house, so she and her son Anuj went alongwith her Nand at the house of Netrapal. They were sitting inside the house of Netrapal and at about 8 p.m. electricity of the house of Netrapal went off. Netrapal came out from his house to see the electric wire. On hearing the noise, Rani Devi, the wife of Netrapal also went outside. Thereafter they heard cries of Rani Devi in loud voice and she and her son Anuj also went outside where they saw that Netrapal was lying in a pool of blood and eight persons were beating him including the two lady present in the court. She has duly identified all the four main accused persons alongwith their two more associates who were having Kulhari, Phawra, iron pipe, Ghandala, danda and lathi in their hands. She further stated that she alongwith her son Anuj tried to save the deceased Netrapal but accused persons gave beatings to them also with axe and danda etc. They also caused injury on their head and other parts of the body. PW3 Maya Devi alongwith her son PW13 was also admitted in the hospital by the PCR van alongwith the deceased Netrapal as they also received injuries during the quarrel. Therefore there is no doubt regarding the presence of PW3 and PW13 at the spot.
52. So far as the accused persons giving beatings to the deceased S.C. No.: 05/2007 22/35 Netrapal, PW Maya Devi and Anuj are concerned then, PW3 has stated that all the four main accused persons were giving beatings to her Devar Netrapal. She has further stated that they hit axe from blunt and sharp side, danda blows and with their respective weapons on her head and other parts of the body. She has stated that accused persons were badly beating her Dever Netrapal with their respective weapons. She has stated that she know the accused persons present in the court by their faces only but she does not know them with their names. Her testimony inspires confidence and it is clear that she is not a tutored witness. She was not residing there and, therefore it was natural for her not to know the accused persons with their names. She has clearly identified accused Rama Kant in the court and stated that he hit with an axe on the person of her Devar Netrapal. PW3 has also admitted that PW2 did not receive any injury during the quarrel. She has been cross examined at length and nothing material has come out of her cross examination which can shake the case of prosecution. Though there are slight improvements in the testimony of PW3 given in the court and that to the police but these improvements does not shake the case of prosecution and are not of such nature which falsifies the case of prosecution.
53. PW13 is Anuj Kumar who is also another eye witness of the case. This witness has also stated about the beatings given by the accused persons to him, his mother and deceased Netrapal. He has stated that all the male and female accused persons present in the court were beating S.C. No.: 05/2007 23/35 his uncle Netrapal and his wife and his uncle Netrapal was lying on the ground. He has also been cross examined at length . In his cross he has stated that all the accused persons are known by the name of Kant and he does not remember their exact names. He has stated that he is living in Natthupura since his child hood. Merely because PW13 is living in Natthupura since his childhood is no ground to presume that he should be able to know the name of each of the accused persons. This witness in his cross has stated that he cannot identify the accused persons by their names but he can identify them by their faces. From his testimony it is clear that that this witness is also not a tutored one.
54. Similar suggestion has been given to PW13 also that some unknown persons gave beatings to him and his uncle alongwith two accused persons and they sustained injuries but PW13 has denied the suggestion. As discussed above, this defence taken by the accused is falsified and is in contradiction to the evidence led by them during their defence.
55. Counsel for the accused argued that it was only the juvenile accused J.J. Kant and Shashi Kant who were present at the spot and who gave injuries to the deceased but subsequently the complainant has taken the name of all the accused persons in order to falsely rope them in the present case. In the case of free fight, it is generally seen that sometimes the complainant party takes or implicates all the family members of the accused but in the present case the testimony of PW2, PW3 and PW13 S.C. No.: 05/2007 24/35 has remained unrebutted in this regard. They all have taken the name of accused Madan, Ashish, Shri Kant, and Ramakant alongwith ladies. PW2 has also taken the name of the ladies accused persons and has stated that they gave lathi blows to the deceased Netrapal and other injured but her testimony in this regard has not been supported by PW Maya Devi and Anuj. PW Maya Devi and Anuj have taken the name of of all the male accused persons specifically. PW3 in her chief recorded on 20.2.2008 has stated that : " All the four main accused persons present in the court were beating Netrapal alongwith their two more associates who are not present in the court with Kulhari, Phawra, iron pipe, Ghandala, danda and lathi. I and my son Anuj tried to save my brother in law Netrapal but the accused persons also beaten me and my son Anuj ".
56. Thus, so far as the actus reus is concerned, prosecution has clearly been able to establish that on the said date, accused persons in furtherance of their common intention gave beatings to Netrapal, Maya Devi and Anuj.
57. PW1 is Dr. Vijay Khari who examined the injured Anuj vide MLC Ex. PW1/A as well as deceased Netrapal and deposed that deceased had sustained the following injuries:
1. Large haematoma over left parieto occipital region, active bleeding was there.
2. Swelling tenderness over right ankle was there.
3. CLW 1.5 x 0.5 cm over mid one third of right leg anterior S.C. No.: 05/2007 25/35 aspect.
4. Abrasion over right leg, lower one third He also proved the MLC of deceased as Ex. PW1/B and also the MLC of injured Maya Devi as Ex. PW1/C.
58. PW7 is Dr. S. Lal from Aruna Asaf Ali Hospital who conducted the postmortem on the dead body of Netrapal and opined that the following ante mortem injuries were found on the dead body of deceased Netrapal:
1. C Shape surgical stitch craniotomy wound of size 15 x 0.2 cm with stitches over left side of scalp starting from left side fronto to parieto and occipital area.
2. Partially healed scab abrasion 6 x 0.4 cm over left arm on lateral aspect, vertically placed over upper end and placed 8 cm below the tip of shoulder.
3. Partially healed multiple scratch abrasion with scab over left shoulder in area of 5 x 4 cm.
4. Partially healed scab abrasion 0.5 x 0.5 cm over left elbow on lateral aspect.
5. Partially healed scab lacerated would 1.5 x 0.5 cm over front of right middle of leg, placed 15 cam above the ankle joint.
6. Partially healed lacerated wound 2.0 x 0.5 cm over front of right lower 1/3 of leg, placed 6 cm above the ankle joint with fracture of tibial bone.
7. Swelling with deep bruise over right ankle joint. S.C. No.: 05/2007 26/35
59. On internal examination following injuries were found on the dead body of deceased Netrapal:
a) Scalp Tissue: Sub Scalpal extravassation of blood seen left frontoparietal area.
b) Skull bones: Loose parietal bone seen over left side of skull.
c) Brain: Meninges torn, extradural hemorrhage seen over left fronto parietal area. Lines fracture radiate from main hold to forward in parietal bone and backward to occipital bone. Subarrachnoid hemorrhage seen on left fronto parietal and occipital area with oedema of whole brain. Base of skullNAD.
Rest of the viscera were oedematous and congested.
59. He further opined that the cause of death was shock due to ante mortem cranio cerebral damage produced by blunt force impact on head and sufficient to cause death in ordinary course of nature. He proved his report as Ex. PW7/A and further deposed that he also had opined on the axe, iron rod and unsealed danda produced by the IO and had stated that injury no. 2 to 7 were possible with iron rod and danda but these injuries were not possible with axe and injury no.1 was caused by weapon of offence no. 1,2, and 3 i.e. axe, iron pipe and danda. The postmortem report proves the cause of death as shock due to ante mortem cranio cerebral damage produced by blunt force and that injury is possible as per the opinion of PW7 Dr. S. Lal with the weapon of S.C. No.: 05/2007 27/35 offence no. 1,2 and 3 i.e. axe, iron pipe and danda.
60. The other witnesses examined by the prosecution are the police officials who are the link witnesses of the case. They joined the IO during the investigation of the case at various stages and completes the chain of evidence. Minor discrepancies here and there in their statements does not go to the root of the case and does not shake the case of prosecution. Thus, so far as the actus reus on the part of accused persons is concerned then, prosecution has been fully able to prove the factum of quarrel on the date of incident.
61. The next question which arises for consideration is the mens rea or the intention on the part of accused persons to commit murder of the deceased. It is an admitted fact that it is a case of free fight. The quarrel started between the parties on a very trivial matter i.e. shaking of electricity pole by one of the son of accused Madan who is also co accused in this case due to which the electricity of the house of deceased went off . When deceased came out of the house, some heated conversations took place between the parties and all of a sudden all the accused persons came out of their house and started beating the deceased. Subsequently the family members of deceased also came out and they were also given beatings by the accused persons. In such circumstances, it cannot be said that there was some motive on the part of accused persons to commit murder of the deceased. Neither there can be said to have any intention to cause the death of deceased. At the most, the S.C. No.: 05/2007 28/35 intention that can be attributed to the accused persons is to gave beatings to the deceased. The deceased in the present case died after 11 days of the receipt of injuries. In the present case, occurrence took place suddenly. There was no pre meditation on the part of accused and quarrel arose from a trivial issue which resulted in death of the deceased. In such circumstances,it cannot be said that section 300 'thirdly' part (II) IPC has been attributed in the present case. Neither any motive to cause the death of deceased can be attributed to the accused persons. There is no evidence on behalf of the prosecution to suggest that any of the accused uttered any word to kill the deceased. All the eye witnesses of the case i.e. PW2, PW3 and PW13 have not deposed any such thing. In the present case, though there was intention with regard to criminal act i.e. act of giving beatings and causing injury to the deceased and the other injured Maya Devi and Anuj but it cannot be said that all the accused persons shared any common intention or motive to kill or to cause the death of deceased Netrapal. From the evidence of the witnesses on record, it is clear that the other injured in the present case i.e. PW3 and PW13 received only simple/grievous injuries which also proves the fact that there was no intention on the part of accused persons to cause the death of deceased. The other injured, PW3 who tried to save the deceased received only simple injuries. It is only the injury given on head of the deceased which proved fatal and caused his death i.e. injury no.1 and as per the opinion of doctor PW7, injury no.1 is possible with axe, iron pipe S.C. No.: 05/2007 29/35 and danda and from the evidence on record, it is clear that accused Madan was holding a danda, accused Rama Kant was holding a pipe and accused Shri Kant was holding a Ghandela which is used for digging of the soil . Since in the heat of passion, accused caused injuries on the head of deceased with the intention to cause such bodily injury as is likely to cause death. Therefore so far as the intention on the part of accused persons to cause the death of deceased is concerned then prosecution has failed to prove the same.
62. In Crl. Appeal No.403/2000 titled as Khoob Ram Vs. State , it has been held by Hon'ble High Court in Para 21 that: " In the decision reported as Kapur Singh Vs. State of Pepsu, AIR 1956 SC 654, 18 injuries inflicted with a gandasa, all directed towards the legs of the deceased; cumulative effect whereof was the death of the deceased due to excessive bleeding, were held to be attracting section 304 Part I IPC not section 302 IPC.
It has been further held in para 25 that : " The decision has followed the locus classicus dictum of Vivian Bose, J. in Virsa Singh's case reported as Virsa Singh Vs. State of Punjab, AIR 1958 SC 465. As extracted in Sunder Lal's case (supra), the Supreme Court has extracted various observations in Virsa Singh's case as under:
16. In Virsa Singh Vs. State of Punjab, Vivian Bose, J. speaking for the court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under section 300 "Thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of injury must be proved. These are purely S.C. No.: 05/2007 30/35 objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that: it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the inquiry of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the inquiry is purely objective and inferential and has nothing to do with the intention of the offender.
17. The ingredients of clause "Thirdly" of section 300 IPC were brought out by the illustrious judge in his terse language as follows:
To put it shortly, the prosecution must prove the following facts before it can bring a case under section 300, "Thirdly".
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the inquiry proceeds further and, Fourthly, it must be proved that the inquiry of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to sdo with the intention of the offender'.
The learned Judge explained the third ingredient in the following words (at page 468):S.C. No.: 05/2007 31/35
'16.........The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, nor intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question; and once the existence of the injury is prove the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion'.
19. These observations of Vivian Bose,J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of clause 'Thirdly' is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied : i.e. (a) that the act which cause death is done with the intention of causing death or is done with the intention causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz. that the injury found to be present was the injury that was intended to be inflicted.
20. Thus, according to the rule laid down in Virsa Singh case, even if the intention of accused was limited to the infliction of a S.C. No.: 05/2007 32/35 bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to section 300 clearly brings out this point.
21. Clause (C) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular persons or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
22. The above are only broad guidelines and not cast iron imperatives. It most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages".
63. Thus, the prosecution has been able to prove this fact that accused Madan was having a lathi with which he gave blows to the deceased Netrapal, accused Rama Kant was having an iron pipe and accused Shri Kant was having an axe or Gandela which is used for digging soil and as per the opinion of doctor the injury no.1 was possible to be caused by these weapons.S.C. No.: 05/2007 33/35
64. So far as the remaining accused persons are concerned then, for accused Ashish who is son in law of accused Madan, PW2 has very clearly stated that he was having a pipe in his hand and thereafter she stated that he was having a Fawra. The iron pipe used by him had also not been recovered at his instance. Further there are discrepancies in the statement of PW2 regarding the weapon of offence used by this witness and, therefore at the most it can be said that whether he used iron pipe or Fawra but the injury caused by these weapons on the person of deceased were not with intention to cause the death of deceased and also the injury received by other injured are either simple or grievous in nature.
65. So far as accused Phoolwati and Rekha are concerned then, as per PW's they were only having lathis and nothing else. Moreover from the injury caused on the person of deceased, it is clear that none of these accused persons inflicted injury on the person of deceased with the intention to cause his death and the injuries caused by them can only be treated as grievous/simple in nature.
66. In view of the abovesaid discussion, it has been proved beyond reasonable doubt by the prosecution that on 24.10.2006 at about 8 p.m. near house no. 1015, Gali no.8, Natthu Pura, Delhi all the accused persons alongwith other accused persons were the members of unlawful assembly and in prosecution of the common object of that assembly, they gave beatings to Netrapal, Maya Devi and Anuj and therefore all the accused persons are held guilty and convicted for the offence U/s 147 S.C. No.: 05/2007 34/35 IPC.
67. It is also proved on record beyond doubt by the prosecution that all the accused persons being the members of unlawful assembly were armed with weapons like Kulhari, Iron Pipe, Danda and Gandela etc. Thus they are held guilty and convicted for the offence U/s 148 IPC.
68. As far as the common object of the unlawful assembly is concerned then at the most it can be said that they had the common object to cause the injuries on the person of deceased Netrapal, Maya Devi and Anuj and in no circumstances it can be said that accused persons had any common object to cause the death of deceased at the time of sudden fight.
Therefore accused Shri Kant, Rama Kant and Madan are held guilty and convicted for the offence U/s 304 Part (I) of IPC and also U/s 325/324 IPC r/w sec. 149 IPC.
69. Accused Ashish, Rekha and Phoolwati are further held guilty and convicted for the offence U/s 325/324 IPC r/w section 149 IPC.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. 10.11.2010 S.C. No.: 05/2007 35/35 FIR No: 492/2006 PS.: Timar Pur State Vs. Shashi Kant etc. 10.11.2010 Present: Ld. APP Sh. Vinod Kumar Sharma for the state.
All the accused in J/C with counsel Sh. Yogesh Chabra, Vide separate order dictated and announced in the open court, all the accused persons are held guilty and convicted for the offence U/s 147/148 IPC. Accused Shri Kant, Rama Kant and Madan are further held guilty and convicted for the offence U/s 304 Part (I) of IPC and also U/s 325/324 IPC r/w sec. 149 IPC. Accused Ashish, Rekha and Phoolwati are further held guilty and convicted for the offence U/s 325/324 IPC r/w section 149 IPC.
To come for arguments on the point of sentence on 15.11.2010.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi 10.11.2010 S.C. No.: 05/2007 36/35 S.C. No.: 05/2007 37/35