Delhi District Court
State vs . 1. Lakshman on 30 January, 2020
IN THE COURT OF SH. AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440231/2016
In the matter of:
State Vs. 1. Lakshman
S/o Sh. Chander Pal,
R/o Village Issapur Khera
PS-Kapashera, New Delhi.
2. Raj Kumar
S/o Laxman
R/o Village Issapur Khera
PS-Kapashera, New Delhi.
3. Roshani
W/o Sh. Jagdish
R/o Village Issapur Khera
PS-Kapashera, New Delhi.
4. Lalu @ Sandeep
S/o Sh. Jagdish
R/o Village Issapur Khera
PS-Kapashera, New Delhi.
FIR No. : 315/14
Police : Kapashera
Station
Under : 147/148/149/302/307 IPC
Section
Date of Filing of case : 10.10.2014
Date of Committal to Sessions Court : 21.11.2014
Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 1/63
Date of Assignment of case to this court : 10.07.2017
At the stage of P. E.
Date of Final Arguments : 24.01.2020
Date of Judgment : 28.01.2020
JUDGMENT:
1. The case of the prosecution is that on 14.07.2014 at about 10.30 pm, one Sh. Nikka along with his brother Sh. Karambir (since deceased) was connecting an electric wire at an electric pole adjoining to house of accused Lakshman at Village Issapur Khera, New Delhi and accused Lakshman and accused Raj Kumar @ Raja had objected for the same. It is stated that said Sh. Nikka and his brother Karambir had returned to their house and after some time, accused Lakshman and accused persons i.e. Raj Kumar, Roshni and Lalu @ Sandeep along with two another persons who were found to be juvenile (in order to maintain anonymity, the two JCLs shall be referred to in this case by the first alphabet of their Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 2/63 respective names, thus they shall be referred to as R and S respectively wherever required) namely R and S came to the house of Sh. Nikka.
2. It is further the case of prosecution that accused Rajkumar had assaulted and hit with an axe on the head of Karambir, accused Roshani had hit with a pipe on the head of Sh. Nikka, accused Laxman had hit with an iron rod on the hand of Sh. Nikka and accused Lalu @ Sandeep hit with a Saria on the leg of Sh. Nikka and accused Lakshman shouted as 'Isko Chhodo Karambir ko maro'. It is averred that JCL S and R had also assaulted on Karambir with palta and rod and accused Raj Kumar had hit Smt. Jyoti with a stone.
3. Thereafter, Smt. Jyoti informed the police on telephone No. 100 and the same was recorded at the control room in prescribed form and the information was passed to PS Kapashera which was recorded vide DD No. 5B at about 01.45 am. As stated, Sh. Nikka Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 3/63 and his brother Sh. Karambir were taken to RTRM hospital by a PCR van where they were examined by Dr. Rakesh Kumar vide MLCs. Dr. Rakesh Kumar has also prepared MLC of accused Raj Kumar. It is stated that Sh. Karambir was declared dead by Dr. Rakesh Kumar at about 9.45 AM and the dead body was shifted to mortuary.
4. It is the case of prosecution that on 15.07.2014, on receipt of DD No. 5 B, SI Jagdish Rathi alongwith Ct. Om Prakash reached the spot at village Issapur Khera, New Delhi and blood was found lying outside house of accused Lakshman and blood was also found lying outside the house of Sh. Nikka. It is stated that SI Jagdish Rathi reached RTRM Hospital Jaffarpur New Delhi and found that Nikka was under treatment and Sh. Karambir was found declared dead. Thereafter, SI Jagdish Rathi recorded statement of Sh. Nikka and prepared rukka and got registered the present case vide FIR No. 315/14 which was Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 4/63 registered by HC Naresh on presentation of Rukka before him by Ct. Ravinder.
5. After recording FIR, HC Naresh made his endorsement on the rukka and recorded DD No. 10 A and sent the copies of FIR through Special Messenger HC Manoj to Area Magistrate and Senior officers of Police vide DD No. 11A.
6. Thereafter, the investigation of present case was assigned to Inspector Rajesh Brar who reached the spot and called the crime team at the spot. SI Khajan Singh In-Charge, Mobile Crime Team inspected the spot vide crime team report and Ct. Anil Kumar took photographs of scene of spot. During investigation, Inspector Rajesh Brar prepared rough site plan at the pointing out of Sh. Nikka.
7. It is stated that Inspector Rajesh Brar lifted blood samples and earth control from inside and outside of house of deceased Karambir and sealed the same in separate pullandas with seal of RB and Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 5/63 seized the same. On 15.07.2014, Inspector Rajesh Brar also lifted blood samples and earth control from the gali in front of house of accused Lakshman and Mangal and sealed the same in separate pullandas with seal of RB and seized the same. Thereafter, Inspector Rajesh Brar also lifted blood samples and earth control from inside and outside of house of complainant Nikka and sealed the same in separate pullandas with seal of RB and seized the same. Inspector Rajesh Brar also lifted one wooden danda having blood stains which was found lying near wall of kitchen of Nikka's house and wrapped cello tape on the blood stained portion of the danda and thereafter, sealed the danda in a pullandas with seal of RB and seized the same.
8. It is stated that on 15.07.2014, accused Raj Kumar @ Raja was arrested by Inspector Rajesh Brar vide arrest memo and his personal search was conducted. Further accused Raj Kumar was Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 6/63 interrogated by Inspector Rajesh Brar and his disclosure statement was recorded and the wearing shirt of accused Raj Kumar @ Raja having blood stains was taken by Inspector Rajesh Brar and was sealed in pulanda with seal of RB and was seized.
9. In pursuance of his disclosure statement, accused Raj Kumar @ Raja got recovered an axe from behind a door from first floor of his house at Village Issapur, New Delhi and blood stains were found on the axe and its wooden handle. It is averred that Inspector Rajesh Brar wrapped cello tape on the blood stain portions of the axe and thereafter, sealed the axe in a pulanda with seal of RB and seized the same.
10. On 16.07.2014, Inspector Rajesh Brar filled form 25.35, prepared brief facts of the case and made request for post mortem. Thereafter, on 16.07.2014, post mortem on the dead body of deceased Karambir was conducted by Dr. Pravindra Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 7/63 Singh at RTRM hospital vide PM Report and after post mortem, the clothing, blood samples and nail clippings of deceased were sealed and handed over to IO by him which were seized by Inspector Rajesh Brar vide seizure memos. It is stated that the dead body of the deceased was identified by Sh. Nikka and Sh. Vikrant vide their statements and after post mortem, the dead body was handed over to relatives of deceased.
11. On 16.07.2014, Inspector Rajesh Brar in pursuance of an information reached the house of JCL R at village Issapur Khera New Delhi from where he was apprehended and SI Paramjeet Singh, JWO was called there. The proceedings qua JCL R were conducted by SI Paramjeet Singh and he got recovered his cloths which were sealed and seized by Inspector Rajesh Brar. Thereafter, JCL R got recovered a blood stained palta from first floor of house of accused Lakshman and Inspector Rajesh Brar Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 8/63 wrapped the blood stained portion with cello tape and thereafter sealed the palta with seal of RB and seized the same vide seizure memo. It is stated that blood sample of accused Raj Kumar and JCL R were taken in Safdarjung Hospital, New Delhi and same were seized by Inspector Rajesh Brar vide seizure memos.
12. During investigation, blood sample of Sh. Nikka was also taken in RTRM Hospital and same was seized by Inspector Rajesh Brar. On 17.07.2014, accused Lakshman was arrested by Inspector Rajesh Brar from his house at village Issapur New Delhi vide arrest memo and his disclosure statement was recorded. His blood stained kurta was taken by Inspector Rajesh Brar and it was sealed in pulanda with seal of RB and was seized vide seizure memo and accused Lakshman pointed out the place of occurrence.
13. On 17.07.2014, accused Roshani was arrested Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 9/63 from Pappe ka farm, Village Issapur, New Delhi by Inspector Rajesh Brar and her disclosure statement was recorded. On 20.07.2014, JCL S was apprehended and proceedings qua him were conducted by SI Paramjeet.
14. On 21.07.2014, subsequent opinion regarding weapon of offence was obtained by Inspector Rajesh Brar which was given by Dr. Pravindra Singh. Thereafter, on 22.07.2014, the statements of Sh. Nikka and Ms. Jyoti were recorded U/s 164 Cr. P. C. by Sh. Arun Goel, Ld. MM. It is stated that Dr. Anil Yadav took blood sample of Nikka.
15. It is further the case of prosecution that on 03.09.2014, Sh. Navin and Inspector Ram Karan Meena had visited the spot at village Issapur Khera and Sh. Navin took measurement of the spot at the instance of Sh. Nikka and prepared rough notes and on the basis of same, he prepared scaled site plan.
16. On 20.03.2015, accused Lalu @ Sandeep was Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 10/63 arrested by Inspector Ram Karan Meena vide arrest memo and his personal search was conducted. The case property was deposited in the malkhana with HC Birender Kumar and the exhibits pertaining to this case were sent to FSL through SI Paramjeet Singh and same were examined by FSL vide FSL report.
17. After completion of investigation, the charge sheet was filed in the court against accused persons.
18. The Court of Ld. Metropolitan Magistrate committed the case to session being offences U/s 302/307 IPC exclusively triable by Court of Sessions after compliance of Section 207 of Cr. P. C. vide its order dated 21.11.2014.
Charge against the accused :
19. Vide order dated 02.11.2015, the charge for the offence under Section 147/148/149/302/307 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial. The Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 11/63 matter was posted for prosecution evidence. PROSECUTION WITNESSES:
20. The prosecution examined following witnesses:
PW1 is HC Birender Kumar. He is witness with whom the case property of this case was deposited in malkhana being MHC(M) and he proved various entries in this regard. Entry at Sl. No. 1249 was proved as Ex. PW-1/A, entry at Sl. No. 1251 as Ex. PW-1/B, entry at Sl. No. 1253 as Ex. PW-1/C, entry at Sl. No. 1264 as Ex. PW-1/D, copy of Road Certificate No. 61/21/14 as Ex. PW- 1/E, copy of acknowledgement of FSL as Ex. PW- 1/F. PW2 is Sh. Nikka. He is one of the injured and complainant in the present case. He has deposed regarding the incident of assault by accused persons in this case and identified the accused persons.
Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 12/63 PW3 is Smt. Jyoti. She is wife of PW-2 Nikka. She was also present at spot on the day of incident. She has deposed regarding incident of assault by accused persons upon them and she identified all the accused persons. PW4 is Dr. Pravindra Singh, Specialist, Forensic Medicine, RTRM Hospital. He is a witness who conducted post mortem on the dead body of deceased Karamvir. He proved the detailed post mortem report as Ex. PW-172/14. The cause of death in this case was due to combined effect of hemorrhagic shock alongwith craniocerebral damage (head injury) consequent to multiple injuries described in the post mortem report. The sketch of an axe and palta was proved as Ex. PW-4/B and the subsequent opinion regarding weapons of offence as Ex. PW- 4/C. PW5 is Sh. Saurav. He is a witness by whose Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 13/63 mobile phone, the call was made by one lady at 100 number to police on the intervening night of 14/15.07.2014.
PW6 is Sh. Vikrant. He is a witness who identified the dead body of his deceased cousin Karambir in RTRM Hospital and his statement in this regard was recorded by police and same is proved as Ex. PW-6/A. PW7 is HC Naresh. He is a witness who recorded DD No. 5B and attested copy of same was proved as Ex. PW-7/A. He also recorded FIR in this case and copy of FIR was proved as Ex. PW-7/B, his endorsement on rukka as Ex. PW- 7/C, attested copy of DD No. 10A as Ex. PW-7/D and attested copy of DD No. 11A as Ex. PW-7/E. PW8 is SI Khazan Singh. He deposed that on the requisition of local police, he alongwith other members of crime team reached at spot and he conducted the inspection of spot. He proved his Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 14/63 report as Ex. PW-8/A. PW9 is Dr. Anil Yadav, Senior Medical Officer, RTRM Hospital. He deposed that on 16.07.2014, Nikka was brought to RTRM Hospital by Ct. Ravinder for blood sample collection and his blood sample was collected and handed over to Ct. Ravinder. He proved the MLC as Ex. PW- 9/A. PW10 is Ct. Anil Kumar. He deposed that he was posted as Photographer in Mobile Crime Team and he alongwith SI Khazan Singh, In- charge Crime Team with other members reached at spot and he took 40 photographs of scene of spot from different angles and same were proved as Ex. PW-10/A1 to Ex. PW-10/A40 and negatives as Ex. PW-10/B1 to Ex. PW-10/B40. PW11 is Ct. Om Prakash. He deposed that on receipt of call, he alongwith ASI Jagdish reached at spot. He deposed that blood was found lying Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 15/63 at spot and they came to know that injured persons had been taken to RTRM Hospital by PCR Van. He also deposed that leaving him at spot, ASI Jagdish with Ct. Ravinder went to RTRM Hospital.
PW12 is HC Manoj. He deposed that he took the copies of FIR to residence of Area Magistrate and senior officers of police as Special Messenger on motorcycle.
PW13 is Sh. Rajbir @ Raju. He deposed that on 14.07.2014, in the night at around 11.45 pm, he was present at his home and heard some noise and on this, he came outside and found that many persons of his village had gathered in the gali. He further deposed that he did not see any person giving beatings to anyone and police did not record his statement. This witness resiled from the previous statement given to the police and thus he was cross-examined by Ld. APP for Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 16/63 the state.
PW14 is Ct. Kailash. He deposed that on the instructions of IO, he had taken accused Raj Kumar to Safdarjung Hospital for his medical examination and after medical of accused, doctor handed over him sample pulanda which he brought to S and handed over same to IO and seizure memo of same was proved as Ex. PW- 14/A. This witness was put leading question by Ld. APP for the state.
PW15 is HC Krishan Kumar. He brought the FIR No. 63/10 registered with PS-Kapasehra and stated that Sh. Jagdish is the complainant in said FIR. The copy of same was proved as Ex. PW- 15/A. PW16 is HC Himmat Singh. He deposed that on receipt of information, he reached at spot and found ASI Jagdish Rathi and Ct. Om Prakash present there. He further deposed regarding Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 17/63 investigation done in his presence in this case by police.
PW17 is SI Jagdish Rathi. He deposed that on 15.07.2014, on receipt of DD No. 5B, he alongwith Ct. Om Prakash reached at spot and blood was found lying outside the house of Lakshman and inside the house of complainant Nikka. He further deposed regarding the investigation done by him in this case. PW18 is Dr. L. R. Richhele, DDU Hospital. He deposed that on 15.07.2014, x-ray plate of injured Nikka was examined by him and the detailed report was proved as Ex. PW-18/A. PW19 is Dr. Rakesh Kumar, Medical Officer, RTRM Hospital. He deposed that he medically examined injured Nikka, Karambir and Raj Kumar. The MLC of injured Nikka was proved as Ex. PW-19/A, MLC of injured Karambir was proved as Ex. PW-19/B and MLC of injured Raj Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 18/63 Kumar was proved as Ex. PW-19/C. PW20 is SI Paramjeet Singh. He deposed that on 16.07.2014, he was posted at PS-Kapasehra Delhi as Juvenile Welfare Officer and he was called by IO Inspector Rajesh Brar at spot. He stated that he reached there and JCL R with his father was found there and he prepared apprehension papers and recorded the child version. He further deposed that JCL got recovered his clothes which he was wearing at the time of incident and seizure memo of same was Ex. PW-20/A. He further deposed regarding recovery of palta at the instance of JCL and seizure memo of same was Ex. PW-20/B. PW21 is ASI Narender Kumar. He deposed that he joined the investigation of this case with IO/Inspector Rajesh Brar and during investigation, he alongwith him went to house of accused Lakshman and found accused Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 19/63 Lakshman and he was arrested after inquiries. His arrest memo was proved as Ex. PW-21/A and seizure memo of blood stained kurta as Ex. PW- 21/B. PW22 is Ct. Satish. He deposed that while working as DD Writer, DD No. 5 B was recorded under the supervision of HC Naresh Kumar, Duty Officer.
PW23 is Sh. Naveen, Asst. Draftsman, Maping Section. He deposed that he visited the spot with IO Inspector R. K. Meena and took measurement of spot at the instance of Nikka and prepared rough notes. He proved the scaled site plan as Ex. PW-23/A. PW24 is Sh. Manoj Kumar, Jr. Forensic /Chemical Examiner, FSL. He deposed that 28 sealed parcels were received in FSL and same were marked to him for examination. He further deposed that after biological and serological Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 20/63 examination, he had prepared reports Ex. PW- 24/A and Ex. PW-24/B. PW25 is Sh. Arun Goel, Ld. MM. He deposed regarding recording statement of victim Jyoti U/s 164 Cr. P. C. Her statement was proved as Ex. PW-3/A and certificate of Ld. MM regarding correctness and true account of statement as Ex. PW-25/A. The statement of injured Nikka was proved as Ex. PW-2/A and certificate of Ld. MM regarding correctness and true account of statement as Ex. PW-25/B. PW26 is Dr. Pankaj Ranjan, Senior Medical Officer, Safdarjung Hospital. He proved the MLC of JCL R as Ex. PW, MLC of accused Raj Kumar as Ex. PX and MLC of accused Laxman and Roshni as Ex. PY and PZ.
PW27 is HC Gajender Singh. He deposed that record pertaining to call received on police control room on telephone No. 100 has been Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 21/63 destroyed being old one as per order of Addl. DCP and he proved the attested copy of said order as Ex. PW-27/A. PW28 is Inspector Ram Karan Meena. He deposed that further investigation of this case was assigned to him. He also deposed that three accused were already in JC and two JCL were subject to Juvenile Justice Board. He further deposed regarding investigation done by him in this case. The arrest memo of accused Lalu was proved as Ex. PW-28/A and his personal search memo as Ex. PW-28/B. PW29 is Inspector Rajesh Brar. He deposed that on 15.07.2014, he was directed to reach RTRM Hospital on the directions of SHO. After reaching there ASI Jagdish and other staff were found present. He further deposed regarding investigation done by him in the case. He proved rough site plan on the pointing out of Nikka. Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 22/63 STATEMENT OF ACCUSED:
21. On 15.01.2020, the statement of the accused persons under Section 313 Cr. P. C. was recorded wherein all the incriminating evidence was put to them. In their defence, they stated that they are innocent and have been falsely implicated in the present case by the police at the instance of complainant.
22. The accused persons did not wish to lead DE but later on, an application U/s 315 Cr. P. C. was filed for leading DE which was allowed and accused Laxman and Raj Kumar were produced in witness box in DE and they were examined as DW-1 and DW-2 respectively wherein they deposed that they were working as Driver. Accused Laxman deposed that on 14.07.2014, he had come from his job of driving at home at about 10 p.m. and after taking dinner, he Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 23/63 was sleeping. At about 11 p.m. he heard the voice of his wife that somebody had hit their son Raj Kumar and R. When he got up and went outside his house, he found both of them were lying unconscious. He immediately called police at 100 number. Two police gypsies came at spot and took Raj Kumar and R and other injured persons to hospital. He also accompanied them in said gypsy to hospital.
Thereafter, he was wrongly and falsely arrested and implicated in this case. He also deposed that he was not involved in any quarrel as alleged by complainant. Both DW-1 and DW-2 denied recovery at their instance and stated that they had not given any disclosure statement to police. Thereafter, DE was closed by counsel on their behalf.
23. I have heard Sh. Dushyant Siwatch, Ld. Addl.
PP for the State and Sh. Sunil Gautam and Sh. Rajesh Kumar, Ld. Counsels for the accused. The material on record has been perused.
Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 24/63 ARGUMENTS OF PROSECUTION:
24. Ld. Addl. PP for the state argued that the deceased Karambir was neighbour of accused persons who was beaten up brutally by accused persons and due to injuries sustained by him, he died during treatment. It is argued that accused persons also caused injuries to injured Nikka who is brother of deceased Karambir. After arrest of accused persons, one axe, palta and wooden danda were recovered at the instances of accused persons which were used in offence by them. It is further submitted that apart from recovery of weapons of offence, IO also seized one blood stained t-shirt and Kurta of accused persons. The opinion regarding weapon of offence Ex. PW-4/C has duly established that the injuries mentioned in PM report could have been possible by weapon of offence produced by IO or some other weapon of similar shape and dimensions. Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 25/63
25. It is argued that the Post Mortem report is self explanatory showing external injuries on the body of deceased and subsequent opinion regarding weapon of offence has also come on record which shows that injuries inflicted to the deceased were caused by the same or similar type of weapon. It is argued that apart from deposition of complainant and other witnesses, there is scientific evidence also against accused persons.
26. It is further argued that prosecution has successfully proved the case by examining several witnesses. It is further argued that scientific evidence in the form of PM report and subsequent opinion of weapon of offence also corroborate the case of prosecution. It is further argued that accused are liable to be convicted for the charged offences. ARGUMENTS OF DEFENCE:
27. On the other hand, the Ld. Counsels for the Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 26/63 accused persons argued that disclosure statement of the accused is not admissible as per the Section 25 of the Evidence Act. It is further argued that the motive in this case has not been established. It is further submitted that independent public witness has not supported the case of prosecution which falsify the version of complainants Nikka and Jyoti. It is further submitted that complainants Nikka and Jyoti have deposed falsely being the relatives of deceased Karambir and they are interested witnesses and their testimonies are not reliable and trustworthy. It is further submitted that the alleged recoveries were planted upon accused in order to make out a false case against them. It is further submitted that no public witness was joined at the time of recovery and as such recoveries are doubtful. It is also argued that prosecution has failed to prove its case against the accused beyond any reasonable doubt and as such they deserve to be acquitted. It is further submitted Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 27/63 that as per the case of prosecution and MLC of accused Raj Kumar was prepared which shows that there were injuries on his parietal and occipital region. It is further submitted that there are material contradictions in the testimony of complainant Nikka and his wife Jyoti. It is further submitted that they have deposed about an entirely different story before the Juvenile Justice Board. In support of his case, Ld. Defence counsel has drawn the attention of court towards the findings of Juvenile Justice Board whereby JCL R and S were acquitted.
JUDGMENT RELIED UPON BY LD. APP FOR STATE.
i) State of Rajasthan Vs. Smt. Kalki, AIR 1981 SC 1390;
ii) Namdeo Vs. State of Maharashtra, decided on 13.03.2007 having Appeal (Crl.) No. 914/2006;
iii) State of UP vs. Deoman Upadhyaya, AIR 1960 SC 1125;
iv) Sunil Kumar Vs. State (Govt. of NCT of Delhi), Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 28/63 (2003) 11 SCC 367;
v) Tahir Vs. State 1996 (3) SCC 338 passed by Hon'ble Supreme Court;
vi) State of Haryana Vs. Mai Ram, (2008) 8 SCC 292;
vii) State of Madhya Pradesh Vs. Kalicharan, 2019 (3) RCR Criminal 297, passed by Hon'ble Supreme Court of India;
viii) Apninder Singh & Anr. Vs. State of Punjab, 219 (1) RCR Criminal 977, passed by Punjab and Haryana High Court;
ix) Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58;
x) Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783;
xi) Delias Christopher Vs. Customs 2004 (3) JCC 147;
xii) Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338;
Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 29/63
xiii) State of Haryana Vs. Mai Ram, (2008) 8 SCC 292;
xiv) Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC
652. FINDINGS:
28. In order to prove its case, the prosecution has produced various witnesses in witness box.
29. Most important witness produced by prosecution is PW2 Sh. Nikka. He is one of the injured and complainant in the present case. He has deposed regarding the incident of assault by accused persons in this case and identified the accused persons. He deposed that "on 14.07.2014 at about 10.30 p.m., he alongwith his brother deceased Karambir were connecting an electric wire at electric pole adjoining to the house of accused Laxman and the accused persons namely Laxman and Raj Kumar objected to the same Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 30/63 and after connecting wire, they returned their home. He further testified that after some time, accused Laxman, Raj Kumar, Roshani, Lalu @ Sandeep and two other persons namely R and S came to their house and at that time, accused Raj Kumar was having axe and he hit the same at the head of Karambir, accused Roshani hit with pipe on his head, accused Laxman had hit with iron rod on his head and accused Lalu had hit with saria on his leg. He also deposed about the assault on them by S and R".
30. He further deposed that "Due to the assault, my brother Karamvir had sustained serious injuries on his head and ear. I also sustained injuries on my head and hand. After causing injuries to us, all the accused persons had run away. My wife ran outside and some how she informed the police. One PCR van came at the Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 31/63 spot and took me and my brother to hospital at Jaffarpur. My brother Karamvir succumbed to injuries and was declared dead in the hospital".
31. PW-2 proved his statement as Ex. PW-2/A, his statement regarding identification of dead body as Ex. PW-2/B, his statement U/s 164 Cr. P. C. as Ex. PW-
2/C.
32. PW3 Smt. Jyoti is wife of PW-2 Nikka. She was also present at spot on the day of incident. She has deposed regarding incident of assault by accused persons upon them and she identified all the accused persons. She proved her statement as Ex. PW-3/A.
33. Both PW-2 Nikka and PW-3 Jyoti have correctly identified the accused persons in the court and nothing contrary has come in the cross-examination of PW-2 Nikka and PW-3 Jyoti.
34. PW4 Dr. Pravindra Singh, Specialist, Forensic Medicine, RTRM Hospital is another material witness of prosecution who conducted post mortem on the Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 32/63 dead body of deceased Karamvir. He proved the detailed post mortem report as Ex. PW-172/14. The cause of death in this case was due to combined effect of hemorrhagic shock alongwith craniocerebral damage (head injury) consequent to multiple injuries described in the post mortem report. The sketch of an axe and palta was proved as Ex. PW-4/B and the subsequent opinion regarding weapons of offence as Ex. PW-4/C.
35. PW16 HC Himmat Singh has deposed that on receipt of information, he reached at spot and found ASI Jagdish Rathi and Ct. Om Prakash present there. He further deposed regarding investigation done in his presence in this case by police. Three seizure memos of blood sample and earth control lifted from spot were proved as Ex. PW-16/A to Ex. PW-16/C, seizure memo of blood stained wooden danda as Ex. PW-16/D, arrest memo of accused Raj Kumar as Ex. PW-16/E, his personal search as Ex. PW-16/F, his Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 33/63 disclosure statement as Ex. PW-16/F1, seizure memo of his blood stained shirt as Ex. PW-16/F2 and seizure memo of axe recovered at his instance as Ex. PW- 16/F3. In his cross-examination, he has deposed regarding recoveries of weapons of offence i.e. axe and danda at the instance of accused.
36. PW17 SI Jagdish Rathi deposed that on 15.07.2014, on receipt of DD No. 5B, he alongwith Ct. Om Prakash reached at spot and blood was found lying outside the house of Lakshman and inside the house of complainant Nikka. He further deposed regarding the investigation done by him in this case. The rukka was proved as Ex. PW-17/A, the seizure memo of pulanda of nail clipping as Ex. PW-17/B and seizure memo of blood sample in gauze as Ex. PW- 17/C.
37. PW19 Dr. Rakesh Kumar, Medical Officer, RTRM Hospital is another material witness of prosecution who deposed that he medically examined injured Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 34/63 Nikka, Karambir and Raj Kumar. The MLC of injured Nikka was proved as Ex. PW-19/A, MLC of injured Karambir was proved as Ex. PW-19/B and MLC of injured Raj Kumar was proved as Ex. PW-19/C.
38. PW20 SI Paramjeet Singh is also star witness who deposed that on 16.07.2014, he was posted at PS-Kapasehra Delhi as Juvenile Welfare Officer and he was called by IO Inspector Rajesh Brar at spot. He stated that he reached there and JCL R with his father was found there and he prepared apprehension papers and recorded the child version. He further deposed that JCL got recovered his clothes which he was wearing at the time of incident and seizure memo of same was Ex. PW-20/A. He further deposed regarding recovery of palta at the instance of JCL and seizure memo of same was Ex. PW-20/B. The seizure memo of sealed pullanda containing blood sample was proved as Ex. PW-20/C and seizure memo of sample seal as Ex. PW-20/D. Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 35/63
39. PW24 Sh. Manoj Kumar, Jr. Forensic /Chemical Examiner, FSL is also important witness who deposed that 28 sealed parcels were received in FSL and same were marked to him for examination. He further deposed that after biological and serological examination, he had prepared reports Ex. PW-24/A and Ex. PW-24/B.
40. PW29 Inspector Rajesh Brar is the last witness produced by prosecution. He deposed that on 15.07.2014 he was directed to reach RTRM Hospital on the directions of SHO. After reaching there ASI Jagdish and other staff were found present. He further deposed regarding investigation done by him in this case. He proved the rough site plan on the pointing out of Nikka as Ex. PW-29/A, form 25.35 as Ex. PW- 29/B, brief facts of the case as Ex. PW-29/B1, request application for post mortem as Ex. PW-29/B2, the seizure memo of cloths as Ex. PW-29/B3, the seizure memo of blood sample of Nikka as Ex. PW-29/B4, the Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 36/63 disclosure statement of accused Laxman as Ex. PW- 29/B5, pointing out memo of place of occurrence by accused Laxman as Ex. PW-29/B6, arrest memo of accused Roshni as Ex. PW-29/B7, her disclosure statement as Ex. PW-29/B8, application for seeking subsequent opinion regarding weapon of offence as Ex. PW-29/B9. In his cross-examination, nothing contrary has come and Ld. Defence counsel has failed to create any dent to the case of prosecution.
41. From the above discussion, it is clear that prosecution witnesses have duly supported the case and complainant PW-2 Sh. Nikka has deposed that on 14.07.2014 at about 10.30 p.m., he alongwith his brother deceased Karambir were connecting an electric wire at electric pole adjoining to the house of accused Laxman and the accused persons namely Laxman and Raj Kumar objected to the same and after connecting wire, they returned their home. He further testified that after some time, accused Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 37/63 Laxman, Raj Kumar, Roshani, Lalu @ Sandeep and two other persons namely R and S came to their house and at that time, accused Raj Kumar was having axe and he hit the same at the head of Karambir, accused Roshani hit with pipe on his head, accused Laxman had hit with iron rod on his head and accused Lalu had hit with saria on his leg. He also deposed about assault on them by S and R. PW-3 Smt. Jyoti has corroborated the version of PW-2 Sh. Nikka. Both PW-2 and PW-3 correctly identified all the accused persons in court.
42. PW-4 Dr. Pavindra Singh has opined that the injuries mentioned in the PM Report were caused by hard blunt force impact and were collectively sufficient to cause death in an ordinary course of nature and he had also given subsequent opinion regarding the weapons of offence and opined that the injuries mentioned in PM Report except injury No. 6 could have been possible by weapon of offence. The Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 38/63 FSL report Ex. PW-24/A shows that blood was found on axe exhibit 19. Scientific evidence in the form of PM Report and subsequent opinion have also duly corroborated the case of prosecution against accused persons.
SCIENTIFIC EVIDENCE:
43. Ld. APP for the state has drawn attention of the court towards the deposition of PW-4 Dr. Pravindra Singh, Specialist, Forensic Medicine, RTRM Hospital who deposed that "On 16.07.2014, I conducted postmortem on the dead body of deceased Karamvir, male, aged about 32 years, at about 12.30 p.m. The detailed postmortem report bearing No. 172/14 is Ex. PW-4/A bearing my signatures at point A. The cause of death in this case was due to combined effect of hemorrhagic shock alongwith craniocerebral Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 39/63 damage (head injury) consequent to multiple injuries described in the post mortem report. All the injuries were ante-mortem and recent and caused by hard blunt force impact and were collectively sufficient to cause death in an ordinary course of nature....
On 21.07.2014, two sealed pulandas sealed with the seal of RB and postmortem report No. 172/14 were received in the hospital for subsequent opinion. On opening, one of the pulanda was found containing am axe and another was found containing a palta. I prepared the sketches of the same on the back side of the paper. The sketch of axe and palta is Ex. PW-4/B. After examination of the aforesaid weapons of offence i.e. axe and palta and reviewing postmortem report findings, I was of the opinion that the injuries mentioned in the postmortem report except injury No. 6 Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 40/63 could have been possible by the weapons of offence."
Post Mortem Report:
44. The Postmortem report is very material and relevant para /opinion mentioned in the abovesaid report is reproduced herein below:
"Death in this case is due to combined effect of hemorrhagic shock alongwith craniocerebral damage (head injury) consequent to multiple injuries described in the post mortem report. All the injuries were ante-mortem and recent and caused by hard blunt force impact and were collectively sufficient to cause death in an ordinary course of nature".
SUBSEQUENT OPINION OF WEAPON:
Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 41/63
45. It is further important to note here that Ex.
PW-4/C is also another material document in this case which is an opinion regarding weapon of offences. The opinion given in this report by PW-4 is reproduced herein below:
"After examining the weapon of offence (i.e. axe and palta) and reviewing post mortem report findings, it is opined that the injuries mentioned in the p.m. report could have been possible (except injury No.
6) by the weapons of offence like the one produced by the IO for examination or some other weapon of similar shape and dimensions".
46. From perusal of this subsequent opinion, it is apparent that an axe and palta recovered at the instance of accused were used in the committing the murder of deceased by accused persons and there is Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 42/63 no question of any plantation of same. This evidence also points towards the guilt of accused.
47. Ld. Defence counsel has argued that case of prosecution hinges on the sole testimony of complainant Nikka and on the basis of his deposition only, the accused persons cannot be held guilty.
48. In rebuttal to same, reliance is placed upon judgment passed in Crl. Appeal No. 107/13 titled a Kalicharan Vs. State of NCT of Delhi dated 30.04.2015 wherein the Hon'ble High Court of Delhi has referred the case of Sunil Kumar Vs. State (Govt. of NCT of Delhi), (2003) 11 SCC 367 wherein Hon'ble Supreme Court has held as under:-
"38. As a general rule, the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 43/63 a person on the sole testimony of a single witness. That is the logic of Section 134 of Indian Evidence Act, 1872 (in short "the Evidence Act). But, it there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
49. Reliance is placed upon judgment titled as State of UP vs. Deoman Upadhyaya, AIR 1960 SC 1125 wherein certain observations were made to the effect that "The expression, Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 44/63 'accused of any offence' in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person, who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, while he is in custody of a police officer, is tainted and therefore, inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a provision to Section 26, the two sections do no necessarily deal with the evidence of the same character. The ban Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 45/63 imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which lead to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered."
50. Ld. Defence counsel has argued that PW-2 Nikka and PW-2 Jyoti are interested witnesses being relatives of deceased Karambir and they had deposed in the court to implicate him falsely in this case and thus their deposition made in the court cannot be read against accused.
51. In rebuttal to this argument, Ld. APP for the state has relied upon judgment titled as State of Rajasthan Vs. Smt. Kalki, AIR 1981 SC 1390 Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 46/63 wherein it was held that "A witness be called 'interested' only when he or she derives some benefit from result of a litigation, or in seeing an accused person punished".
52. Reliance is further placed upon judgment titled as Namdeo Vs. State of Maharashtra, decided on 13.03.2007 having Appeal (Crl.) No. 914/2006 wherein also Hon'ble Supreme Court of India observed that "There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused".
53. The law settled in above judgment is also applicable to the facts of the case because relatives of deceased are not going to derive any benefit from result of litigation or from conviction of accused and Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 47/63 thus they cannot be termed as interested witnesses. Both PW-2 and 3 were very much present at spot and had seen the incident. Merely because witnesses happen to be relative of deceased does not in any way create suspicion on their testimony. Rather, they are natural witnesses. Their evidence, however, must be scrutinized carefully. If on such scrutiny, their evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the sole testimony of such witness. Close relationship of witnesses with the deceased or victim is no ground to reject their evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. So this argument of Ld. Defence counsel does not hold any water.
54. It is observed that accused Raj Kumar himself disclosed in his disclosure statement about the place Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 48/63 where weapons of offence was kept by him after committing offence and this fact only came to the knowledge of the Investigation Officer after disclosure of the accused. Prior to the disclosure of accused, the Investigating Agency was not aware about their t- shirt, kurta and weapons. The recovery of weapons was effected at the instance and pointing out of accused only and as such above discussed vital pieces of evidence which has come on record cannot be ignored.
55. So, in these circumstances, the time and place of recovery of weapons was within the exclusive knowledge of the accused and these facts could only be discovered after his disclosure statement which makes the relevant portion of his disclosure statement admissible under section 27 of Indian Evidence Act. This is fortified by the case law ''Vinod Kumar Vs. State reported as (1990) 2 Chandigarh Criminal Cases 211 in which a division Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 49/63 Bench of Delhi High Court observed that under section 27 of the Indian Evidence act that part of the statement of accused made to the police can be admissible in evidence which had led to the discovery of a particular fact.
56. In the cross examination of comlainants PW2, PW-3, IO PW-29 and witnesses of recovery, nothing has come on record to impeach their credibility and there is no reason to disbelieve their version.
57. The counsel for accused has further argued that accused has been falsely implicated and has no connection with crime. It is stated that public witnesses were not joined at the time of effecting recoveries of weapon used in crime and T-shirt and kurta of accused at their instance. In rebuttal to same, Ld. APP for the state argued that if witnesses are police witness then that does not mean that their evidence is to be discarded. Ld. APP has relied upon certain law points for this. In the case of Krishna Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 50/63 Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons- falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
58. Further reliance has been placed on case titled as Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783 by Ld. APP and he has argued that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 51/63 accused persons. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC
147. The Ld. APP has further argued that this is also fortified by the judgment of Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under:-
"6....... No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 52/63 projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
59. It is a trite that non-joining of public witnesses itself cannot become a ground for acquittal, if the case of prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution cannot be held to be vulnerable for non-examination of Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 53/63 persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution can not be disbelieved.
60. It is settled law as laid down in Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution". The legal preposition settled in above judgment is fully applicable to the facts of the present case.
61. From the testimonies of prosecution witnesses produced in witness box, it has been duly proved that the seals on the parcels were intact when received In the FSL for examination. Sufficient evidence has come on record and the prosecution has been able to prove the presence of the accused persons at the Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 54/63 spot, recovery of the weapon of offences at the instance of accused and commission of murder of the deceased by them beyond reasonable doubt. Direct ocular evidence has come on record in the form of deposition of PW-2 Nikka and PW-3 Jyoti who have deposed about the specific role of each of accused in the incident.
62. All the police witnesses have deposed as per their role in the investigation of present case. Ld. Defence counsel has failed to create any dent in the deposition of prosecution witnesses. Moreover, accused has not led any defence evidence contrary to the case of prosecution.
63. From the perusal of testimonies of the witness recorded in the court and going through the exhibits i.e. seizure memos, Post mortem report, subsequent opinion of weapon and other evidences produced by prosecution, the connectivity of accused persons with the alleged incident has been established. Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 55/63
64. So from the testimonies of aforesaid witnesses, it has been established that all the accused persons were involved in the incident and in prosecution of their common object, they had caused death of deceased Karambir and also caused injuries to the complainant Nikka. However, it is observed that the incident happened in a spur of moment and on account of quarrel of connecting wire by complainant party on electric pole for which it has come in evidence that accused party was objecting the same as it was dangerous because electric pole was pitched near the house of accused Laxman. It is the case of prosecution that an MLC of accused Raj Kumar was prepared in this case wherein PW-26 Dr. Pankaj Ranjan has proved the MLC of accused Raj Kumar as Ex. PX which shows that there were injuries on his parietal and occipital region. From the facts and circumstances of the case, it emerges that there was a fight between the parties and the manner in Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 56/63 which incident took place, the case of prosecution does not fall within the ambit of section 302 IPC as act of accused persons were not premeditated, however, it squarely falls within the ambit of section 304 IPC.
65. Now it is to be seen whether it falls under 304 (I) or (II) of IPC.
66. Ld. APP for the state has relied upon judgment titled as State of Madhya Pradesh Vs. Kalicharan, 2019 (3) RCR Criminal 297, passed by Hon'ble Supreme Court of India wherein the Hon'ble Supreme Court of India has held as under:-
"Section 302 and 304 part 1 - Culpable homicide - Alteration of conviction - There was free fight - Considering role attributed to accused High Court rightly acquitted accused for charges under Section 302 and converted same into section 304 part II IPC - Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 57/63 High Court, however, was not justified in converting conviction of one accused who gave fatal blow of blunt side of Farsa on head of deceased- Even in case of single blow on vital part of body case may fall under section 302 - Keeping in view circumstances of case said accuses should have been convicted under section 304 Part I instead of section 304 Part II - Conviction and sentence modified - Said accused directed to undergo 8 years RI with fine of Rs. 5000/- and in default RI of 6 months".
67. Reliance is further placed upon another judgment titled as Apninder Singh & Anr. Vs. State of Punjab, 219 (1) RCR Criminal 977, passed by Punjab and Haryana High Court wherein it was held as under:
Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 58/63
"Sections 302 and 304 Part I - Culpable homicide - Accused taunted deceased while taking liquor for not taking revenge of murder of their common friend and called him jackal - In return deceased also called accused jackal and called himself lion - Accused inflicted injuries on deceased with sword and he died due to injuries - Incident witnessed by informant and other witness - testimonies of witnesses corroborated by medical evidence - Intention of accused definitely to cause death - However, act of accused was not premeditated - Case do not fall within the ambit of section 302 IPC - Conviction and sentence converted to section 304 Part I IPC".
68. So Ld. APP has submitted that Section 304 (I) IPC is made out, hence accused be convicted Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 59/63 accordingly.
69. Before proceeding further, I would like to quote exception 4 to section 300:-
(Culpable homicide is not murder if it is committed without per-meditation in a sudden fight in the heat of passion upon sudden quarrel and without the offender having taken undue advantage and acted in a cruel and unusual manner).
70. Here in the present case, the question revolves only to two terms i.e. Intention and Knowledge. In the present case, it cannot be stated with precision as to who was aggressor though it is immaterial but it is crystal clear that there was no per-meditation. It was sudden quarrel, death was not caused in cruel and unusual manner. It was sudden and it was under the heat of passion. The weapon of offence was not in their hand but they were picked up there and then. Moreover, in the two judgments cited by Ld. APP, full Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 60/63 facts are not before the court. Though in case Apninder Singh (Supra) it is made out that some sort of things were already going on and there was history of some other offence and there was talks of revenge also. The injuries were numbering upto 25. The paras No. 8 and 9 facts of case supra clearly suggest that intention could be made out but this is not the case here. In the similar fashion, in the case of Kalicharan (Supra) relied upon by Ld. APP, the only observation was that the injury was effected on the vital part of body and it was a free fight. The other facts and circumstances are not available so in these circumstances from this judgment itself, it cannot be opined that intention can be gathered from the act and conduct of accused persons, however, knowledge can be imputed because if the person uses such types of weapon and give blow on vital part then they should know the consequences of same. So in these circumstances, this court convicts Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 61/63 the accused U/s 304 (II) IPC instead of Section 302 IPC.
71. Similarly, the offence U/s 307 IPC is also not made out in the facts and circumstances of the case for causing injuries to complainant Nikka because as per the MLC, the injuries caused to him have been opined as simple in nature but as per facts of the case, the present case squarely falls in the ambit of Section 323 IPC with regard to causing injuries to Nikka.
72. From the testimonies of PW-2 Sh. Nikka and PW-3 Smt. Jyoti, it has been established that all the accused persons and two other persons who were found juvenile had come together armed with weapons i.e. axe, palta, danda, rod and pipe and assaulted deceased Karambir and Nikka and caused them injuries. So the prosecution has been successful in proving the offence U/s 147/148/149 IPC against the accused persons.
Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 62/63
73. Accordingly, all the accused persons namely Lakshman, Raj Kumar, Roshani and Lalu are convicted for the offences 147/148/149/304(II)/323 IPC. Accused persons namely Lakshman, Raj Kumar, Roshani and Lalu are taken into custody today. Case property be confiscated to State after expiry of period of appeal. Bail bonds and surety bonds are discharged. Copy of judgment be supplied to convicts free of costs.
74. Be put up for arguments and order on sentence Digitally on 31.01.2020. AJAY signed by AJAY GOEL Date:
GOEL 2020.01.31
16:49:09
+0530
Pronounced in the open court. (AJAY GOEL)
Dated: 30.01.2020 ASJ/Special Judge (NDPS)
Dwarka Courts/New Delhi.
Sessions Case No. 440231/2016 State Vs. Lakshman & Ors. Page No. 63/63