Delhi District Court
St. vs Gyanendra Pal Etc. on 13 October, 2010
St. Vs Gyanendra Pal etc.
FIR No.254/05, PS: Mukherjee Nagar,
U/s 302/342/34 IPC
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST04), DELHI
SC No. : 38/3/10
State
Versus
1. Gyanendra Pal @ Boby
S/o Mool Chand
R/o H. No. B272
Gali No.11, Parvati Anchal
Sant Nagar, Delhi.
2. Rajeev @ Monti
S/o Devender Singh
R/o N9, Mukherjee Nagar
Delhi.
3. Amit Kochar
S/o Jagdish Kochar
R/o N9, Mukherjee Nagar
Delhi.
4. Devender @ Ram
S/o Mohinder Singh
R/o F348, Gali No.11
Bhagiriti Vihar, PS Gokulpuri
Delhi.
Case arising out of :
FIR No. : 254/05
U/s : 302/342/34 IPC
P.S. : Mukherjee Nagar
S.C. No.38/3/10 Page 1 of 52
St. Vs Gyanendra Pal etc.
FIR No.254/05, PS: Mukherjee Nagar,
U/s 302/342/34 IPC
Date of FIR : 15.06.2005
Date of Institution : 12.09.2005
Date of Final Arguments : 25.09..2010
Judgment reserved on : 29.09.2010
Date of judgment : 07.10.2010
JUDGMENT
1. The brief facts as alleged by the prosecution are that ASI Rajender Singh on receipt of DD No.24A vide Ex.PW6/A dt.10.06.2005 along with Ct. Jaipal had gone to 630, Mukherjee Nagar i.e. the place of occurrence, where the accused as well as injured Rajkumar and his brother Avtar met him. Rajkumar was sent to hospital with Ct. Jaipal. ASI Rajender Singh went to hospital and collected the MLC of Rajkumar who was already discharged from the hospital. Then ASI Rajender Singh went to Jahangirpuri and met Raj Kumar and his family members who told him that they would be coming to the police station on the next day to tell as to what action would they like to be taken against the accused. On 11.06.2005, both the parties reached the police station with their well wishers. Both the parties had then written the compromise application vide Ex.PW3/DA which bears the signatures of Rajkumar, his brother Avtar, witness Manoj and the accused Amit Kochar. In view of the compromise application, no action had been taken and the matter was treated to S.C. No.38/3/10 Page 2 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC have been amicably settled at that time.
On 15.06.2005, Avtar Singh brother of Rajkumar had come to ASI Rajender Singh and informed that Rajkumar had again been admitted in the hospital on the basis of the previous MLC. ASI Rajender Singh then went to Hindu Rao hospital along with Ct. Jaipal and enquired from the doctor as to whether Rajkumar was fit to make statement or not, the doctor declared Rajkumar to be fit to make statement. Statement of Rajkumar was recorded vide Ex.PW10/A which was signed by him in the presence of ASI Rajender Singh and on the basis of the same FIR No.254/05 was registered vide Ex.PW10/C. ASI Rajender Singh went to place of occurrence along with Avtar and rough site plan was prepared on the pointing out of Avtar. ASI Rajender Singh also recorded the statement of witnesses. On 16.06.2006, the investigation of this case had been entrusted to ASI Roshan Lal.
ASI Roshan Lal met Avtar brother of Rajkumar and his statement was recorded under section 161 Cr.P.C. ASI Roshan Lal also went to the hospital to find out the condition of Rajkumar who was declared unfit to make statement and after seeing his condition, section 308/34 IPC was added. ASI Roshan Lal arrested accused Gyanender vide arrest memo Ex.PW2/D and personal search memo Ex.PW2/H. He also recorded the disclosure statement of accused Gyanender vide Ex.PW9/A. Thereafter, the investigation was S.C. No.38/3/10 Page 3 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC entrusted to Insp. Rakesh Tyagi.
On 20.06.2005, Avtar Singh brother of the injured Rajkumar came to the police station. At about 11:00 PM, information was received from secret informer that the persons involved in this case were present near SFS Flats, Mukherjee Nagar. On the basis of this information, he along with Ct. Rishal Singh, Avtar Singh and informer went to SFS Flats, Mukherjee Nagar and on the pointing out of informer, he arrested the accused Rajiv @ Monti and Amit Kochar at about 11:50PM near Batra Cinema, SFS Flats. He prepared the arrest memo and personal search memo of accused Rajiv @ Monti vide Ex.PW2/E and Ex.PW2/I. Arrest memo of accused Amit Kochar is Ex.PW2/F and personal search is Ex.PW2/J. The disclosure statements of both these accused persons also recorded vide Ex.PW19/A and ExPW19/B. He also recorded the statement of the witnesses and got the accused persons medically examined. They were produced in the court and sent to judicial custody.
On 22.06.2005, information was received in the police station from the hospital that the injured had expired. Thereafter, section 302 IPC was added in the case diary after discussion with the senior officials and the case was handed over to SHO Insp. P.C. Mann for further investigation. On 30.06.2005, he went to Hindu Rao Hospital on the directions of SHO for obtaining the treatment/medical papers of the deceased, the photocopy of the same were handed over S.C. No.38/3/10 Page 4 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC to the investigating officer.
PW21 Insp. P.C. Mann received the case file on 23.06.2005 from SI Rakesh Kumar. On 23.06.2005, he moved the application to the Head of the Department, Forensic Medicines, Hindu Rao Hospital for conducting the post mortem on the dead body of the deceased Raj Kumar vide Ex.PW21/A. He filled up the inquest form and recorded the statement of the witnesses in respect of identification of the dead body vide Ex.PW21/B. After the post mortem, the dead body was handed over to Avtar Singh vide Ex.PW12/2. He also recorded the statement of the witnesses from time to time.
On 13.08.2005 at about12:15 PM, Devender @ Ram was arrested by him outside the house vide arrest memo Ex.PW2/G and personal search memo was also prepared vide Ex.PW2/K. The disclosure statement of the accused Devender @ Ram was also recorded vide Ex.PW21/C. He also collected the post mortem report from the hospital and certificates from Anand Maya Hospital where the injured Rajkumar was treated vide ex.PW21/X. On 31.08.2005, Insp. Devender Singh, draftsman took the rough notes and measurements by visiting the spot, on the basis of which he prepared the scaled site plan which was handed over to Insp. P.C. Mann.
After completion of the investigation, the challan was filed in the court and after compliance of the committal proceedings the case file received by assignment. The charge under section under S.C. No.38/3/10 Page 5 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC section 302/34 IPC was framed against the accused Gyanender Pal @Bobby S/o Mool Chand, Rajiv @ Monti S/o Devender Singh, Amit Kochar S/o Jagdish Kochar and Devender @ Ram S/o Mohinder Singh with the allegations that on 10.06.2005 at about 05:00 PM at shop no.630, Mukherjee Nagar in furtherance of their common intention all the above named accused persons committed the murder of Raj Kumar by intentionally causing him injuries on his abdomen etc. with leg and fist blows as a result of which he died on 22.06.2005 at about 03:15 PM at Hindu Rao Hospital and committed the offence punishable under section 302/34 IPC. All the accused persons pleaded not guilty and contested the trial.
2. The prosecution in order to establish case against the accused persons, examined PW1 ASI Bhagwan Devi who proved FIR No.254/05, Under section 342/325/34 IPC, vide Ex.PW1/A. PW2 Avtar Singh, PW3 Rajesh Kumar are real brother of the deceased Rajkumar. PW4 Dr. C.B. Dabas conducted the post mortem. PW5 Mahender Pal is the friend of the deceased. PW6 HC Satyawan also a duty officer proved the DD No.24A dt. 10.06.2005 vide Ex.PW6/A. PW7 Ct. Rishal Singh remained with the investigating officer SI Rakesh Kumar and witnessed the arrest of accused Rajiv and Amit.
PW8 HC Anita is the duty officer who proved the DD No.11A vide Ex.PW8/A. PW9 ASI Roshan Lal and PW10 ASI Rajender Singh are the investigating officer. PW11 Dr. V.P. Singh S.C. No.38/3/10 Page 6 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC proved the original treatment report Ex.PW11/A and opined the cause of death as Septicemia as a result of trauma in the abdomen.
PW12 Gajraj Singh identified the dead body of the deceased being his neighbour. PW13 Dr. V.P. Singh proved the hand writing and signature of Dr. Sanjeev Kumar on the MLC vide Ex.PW13/A. PW14 HC Jaipal remained with the investigating officer and witness of documents prepared during investigation. PW15 Ct. Bharat Bhushan proved the arrest memo and personal search memo of accused Devender.
PW16 Insp. Davinder Singh prepared the site plan Ex.PW16/A on 31.08.2005. PW17 HC Nirmal Tamang received the DD No.24A which was recorded by HC Satyawan.
PW18 R.N. Sahai proved the signature of Dr. Kamal Dixit, Senior Resident, Surgery and death summary vide Ex.PW18/A. As per the record, the cause of death was diagnosis - septicemia with multi organ disfunction syndrome following blunt trauma abdomen.
PW19 Insp. Rakesh Tyagi is also a partly investigating officer. PW20 Dr. O.P. Thakur proved the signature of Dr. A.K. Chaturvedi and proved the MLC No.6044/05 of patient Rajkumar and also proved that he was admitted on 13.06.2005 and expired on 22.06.2005 vide death report Ex.PW20/A. PW21 Insp. P.C. Mann is also a partly investigating officer.
S.C. No.38/3/10 Page 7 of 52St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC PW22 Dr. Parmod proved the handwriting and signature of Dr. Praveen Atre who referred the deceased Rajkumar to surgical wound for operation and issued certificate to this effect vide Ex.PW22/A. PW23 Ct. Hakim Singh is the PCR official who proved the certificate regarding the receiving of call by him vide Ex.PW23/A and Ex.PW23/B. PW24 HC Jaipal remained with ASI Roshan Lal during the course of investigation. He is the witness of arrest of accused Gyanender Pal vide Ex.PW2/A and disclosure statement vide Ex.PW9/A.
3. After completion of the prosecution evidence, the statements of the accused persons were recorded under section 313 Cr.P.C. and all the incriminating evidence led by the prosecution were put to the accused persons for which they denied as false and incorrect with the submission that they are innocent and falsely implicated in the present case.
4. Accused Amit Kochar admitted his presence on 10.06.2005 at 05:00 PM in their statement under section 313 Cr.P.C. being employed Gyanendra Pal and Rajkumar used to stitch cloths for his shop. He further stated that Rajkumar along with his brother Avtar Singh came to his shop but without clothes given for embroidery work. Amit Kochar called the police by making call since Rajkumar dismantled pane glasses and showroom glasses, he also tried to assault him with the scissor and also tried to beat him besides threatening. On S.C. No.38/3/10 Page 8 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC 10.06.2005, when Rajkumar came to the shop, without the clothes to be delivered and when he was inquired, his behaviour was abnormal, as he said that the clothes have been lost and then he asking bike to be given to him and he was also indulging in a dialouge/abuses to harass him. The accused Amit Kochar requested him to call his father, since Rajkumar had hardly worked for an hour for the last two days, it was discovered that Rajkumar was also a person of mental disorder, he was also drug addict. Accused Amit Kochar rang his father but he was busy on his shop in Sadar Bazar. Then he called his brother Monti apprising him about the threatenings. Monti came and asked Rajkumar as to why he was harassing him. Rajkumar was asked to go to his home. Rajkumar asked Monti let he should mind his business and Rajkumar picked the scissor, which was lying near the table, being ladies suit shop. The accused persons managed to take back the scissor from Rajkumar and then he went outside the shop and smashed the door upto the angle of 180 degree and dismantled the glass, whereas the door opens upto 90 degree angle. Then with the handle of that door, the other door was smashed. Then he picked the wooden frame of door and tried to assault the accused persons. In the meantime, public gathered and public took the wooden frame from him. Immediately, Amit Kochar came to land line telephone lying in the shop and informed the police control room. Rajkumar was also misbehaving the public persons withholding him. Amit Kochar also S.C. No.38/3/10 Page 9 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC took Rajkumar to the nearest police beat booth, after waiting for PCR present there, took Rajkumar to police station in autorickshaw. Avtar Singh was also present, he also misbehaved even in the police station. The investigating officer was busy in handling another accident case and in the meantime, family members of Rajkumar brought certificate of his psycho/behavioral treatment vide Ex.Y1. At that time, Amit Kochar was advised that he will be called by the police and he left his telephone number there, he also thought at that moment not to register the case, considering the medical condition of Rajkumar reflected in his OPD Card Mark Y1. On 11.06.2005, he was called on his telephone and he went to police station, where compromise was recorded vide Ex.PW3/DA. He is innocent and has been falsely implicated in this case. He also wanted to lead defence evidence.
Accused Gyanender Pal in his statement under section313 Cr.P.C. admitted that he is a stitch master and owner of Ladies Apparel Shop under the name Miss India at 630, Mukherjee Nagar and Devender was salesman in his shop. Accused Rajiv @ Monti was operating his chicken shop near his shop in Mukherjee Nagar. The deceased Rajkumar also used to stitch clothes for Amit Kochar's shop and also admitted his presence at the shop. On 10.06.2005 at about 05:00 PM, Rajkumar along with his brother Avtar Singh came inside the shop to deliver stitched clothes. Rajkumar was not keeping good health and because his medical condition, he fell down unconscious.
S.C. No.38/3/10 Page 10 of 52St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC He had not fell down because of any injury, since he had no injury. Amit Kochar rang the police which came and took Rajkumar to police station. He is innocent and has been falsely implicated in the present case. He does not want to lead any defence evidence.
Accused Rajiv @ Monti in his statement under section 313 Cr.P.C. also admitted that the deceased Rajkumar was employed at the shop of his brother Amit Kochar and also admitted the presence of the accused persons and the deceased Rajkumar on 10.06.2005 at the shop. He is innocent and has been implicated falsely. On receipt of telephone call of Amit Kochar, he went to his shop where Rajkumar along with his brother Avtar Singh was present. When he went there, he was told by Amit Kochar that Rajkumar was to deliver the clothes but he had not brought them. He was asking for money and he was explained that account will be settled, since he was told that he had joined the work for the last about three days and he was not doing his work properly. When he tried to pacify him, Rajkumar created scuffle and took scissor lying in the shop, in order to give assault on the accused persons. He was asked to leave the shop. He dismantled the glass panes. Then Amit Kochar informed the police. Public withhold and restrained Rajkumar from causing damage to the shop of Amit. They took Rajkumar to police station. Then he left for hospital to see his wife who was hospitalized.
The accused Devender in his statement under section 313 S.C. No.38/3/10 Page 11 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC Cr.P.C. deposed in the similar manner and admitted employed as salesman in the shop of Amit Kochar as well as his presence on 10.06.2005 at about 05:00 PM at the said shop and stated that Amit Kochar had not abused Rajkumar. Whereas, Rajkumar had not brought the clothes which he took for embroidery work. No incident happened nor any beating to Rajkumar by anyone. Amit Kochar had informed the police that Rajkumar had delivered abuses and also dismantled the glasses of shop. He is innocent and he has been falsely implicated in the present case. Neither any incident had happened, as alleged or anything was done by him. Later on, the police concocted a story and he has been arrested falsely. He does not want to lead defence evidence.
5. Accused Amit Kochar led the evidence in his defence by examining DW1 Santram Singh , Record Clerk, PGIMS, Rohtak, Haryana who brought the record pertaining to patient Rajkumar. Dr. Subhash Bhargava treated Rajkumar vide Ex.DW1/A.
6. After conclusion of the evidence of both the parties, I have heard the submissions finally and gone through the material placed on record and the authorities cited.
Ld. APP for state argued that the injuries was caused on the person of the deceased Rajkumar by fist and leg blows in the abdomen and all the witnesses including PW2 Avtar Singh and PW3 Rajesh Kumar also admitted the incident as taken place on 10.06.2005 at the S.C. No.38/3/10 Page 12 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC shop of Amit Kochar where all the accused persons were present. The accused persons admitted the compromise deed Ex.PW3/DA executed between both parties. The deceased Rajkumar had sustained the injuries in the free fight in his abdomen and he has been given medical aid. He was discharged on 10.06.2005, thereafter on the intervention of respective parties, the matter was amicably settled and both the parties entered into a compromise vide compromise deed Ex.PW3/DA. Wherein, it has been stated that on 10.06.2005 in shop no. 630, property of Amit Kochar, there was a fight and altercation against each other. The deceased Rajkumar opened the pane glass and the owner of the shop has beaten him and from the fight, Rajkumar sustained internal injuries. He was treated in Hindu Rao Hospital and both the parties have tendered apology with the intervention of the respected persons of their families and both the parties did not wish to take any legal action against each other. They entered into a compromise in presence of their family members, the said compromise deed is Ex.PW3/DA which bear the signature of the deceased Rajkumar alongwith other members of both the parties. Thereafater, on 13.06.2005, the injured Rajkumar was again hospitalized in emergency as having ailment in the stomach and rushed in Hindu Rao Hospital where he was medically treated on 15.06.2005, Investigating officer ASI Rajender Singh also reached at the hospital and recorded his statement vide Ex.PW10/A wherein Rajkumar inured/complainant S.C. No.38/3/10 Page 13 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC alleged the names of the accused persons who caused the injuries in the internal part of body and abdomen.
It is further contended that PW2 Avtar Singh, PW3 Rajesh Kumar and Manoj Kumar are hostile but they have admitted that there was scuffle on 10.06.2005 between the accused persons from one side and the Rajkumar from the other side. This fact has also been admitted by the accused persons in their statement under section 313 Cr.P.C. PW Dr. V.P. Singh proved the treatment of the deceased Rajkumar vide Ex.PW11/A and opined the cause of death as 's epticemia as a result of trauma in the abdomen' . He also proved that the patient Rajkumar was admitted in the hospital on 10.06.2005 and he was discharged on the same day after about 2 ½ hours. Thereafter, Rajkumar was again admitted in the hospital on 13.06.2005. He had sustained injuries in the lever and intestine and its membrane. PW18 Dr. R.N. Sahai proved the signature and handwriting of Dr. Kamat Dixit who prepared the death summary of the deceased Rajkumar vide Ex.PW18/A. PW20 Dr. O.P. Thakur proved the signature of Dr. A.K. Chaturvedi on the MLC of Rajkumar vide Ex.PW20/A. PW22 Dr. Pramod initially examined the patient Rajkumar on 13.06.2005 and referred him for further treatment in Surgery Department.
It is further contended by Ld. APP for state that PW1 Amit Kochar examined in his defence Santram Singh as DW2 with respect to the treatment of Rajkumar by Dr. Subhash Bargava vide Ex.DW1/A S.C. No.38/3/10 Page 14 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC from 07.03.2005 to 28.03.2005 for psychiatric treatment. But the alleged incident is of 10.06.2005. Therefore, the defence evidence will not help the accused persons since the case of the prosecution is admitted by the prosecution witnesses by securing the presence of the accused persons at the relevant time at the place of incident and also with regard to the scuffle which took place between the deceased and the accused persons. In these circumstances, the accused persons are liable to be convicted as per the charges framed against them.
7. Per contra, Ld. Counsel for the accused persons submitted that PW4 Dr. C.B. Dabas, Head of the Department, Forensic Medicines, Hindu Rao Hospital conducted the post mortem of the dead body of the deceased, he stated in his examination in chief that four surgical wounds were found on the body of the deceased. However, no external (traumatic) injury was found. He opined that the death was caused due to septicemia resulting from the infection of the surgical wounds and intra abdominal surgical interventions done to repair and treat the intestinal and mesenteric trauma caused by blunt force impact. It is further stated contended that PW2 Avtar Singh, PW3 Rajesh Kumar and PW Manoj Kumar are real brother of the deceased Rajkumar are hostile and did not support the case of the prosecution. PW10 ASI Rajender Singh in his examination reveals that he reached the spot after receipt of DD No.24A and found the deceased and his brother Avtar Singh but he chose not to record their S.C. No.38/3/10 Page 15 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC statements. The deceased was sent to hospital along with Ct. Jaipal Singh for medical examination but even thereafter his statement was not recorded. The investigating officer did not receive any intimation from the hospital authorities or the constable posted there qua the admission of the deceased. No venue or destination was mentioned by the investigating officer while leaving the police station. The investigating officer did not meet the doctor who had conducted surgery or treating the person of the deceased and even did not collect the list of the medicines which were being administered to the deceased. The investigating officer did not meet the doctor who had conducted the surgery on the person of the deceased nor obtained his opinion as to whether the deceased was fit for statement or not. Moreover, there is a cutting on the date appearing on the MLC which shows that 10.06.2005 has been made to appear as 15.06.2005.
It is further contended that Dr. Kaushik Jain and Dr. Rohit were not examined by the investigating officer who had conducted the surgery on the person of the deceased nor enquired from them about the condition of the deceased, though both of them were very much available, the authenticity and genuineness of the supposed dying delcaration of the deceased dt. 15.06.2005 Ex.PW1/DA stands shaken. If the investigating officer not specifying the destination in the departure entry for which he was leaving the police station on 15.06.2005 and his not placing on record the same, is analyzed against S.C. No.38/3/10 Page 16 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC his having not received any intimation from the hospital qua the admission of the deceased and his having not recorded the statement of Avtar Singh on 15.06.2005 at the police station or at the hospital, the possibility of the investigating officer having not at all gone to the hospital on that day and his having manufactured the dying declaration at the police station cannot be ruled out, especially when he had not obtained the certificate of fitness from the doctors who had conducted surgery on the person of the deceased and it has been established on record that during the relevant period, the deceased was a patient of psychosis and neurosis and was getting treatment from Rohtak Medical College. It is further contended that PW Avtar Singh does not whisper even a word about his having gone to the police station on 10.06.2005 and informed the investigating officer about the admission of the deceased in the hospital. The prosecution has not placed anything on record as to why the investigating officer could not get the the alleged dying declaration recorded by a Magistrate or a Doctor. It is further contended that when the matter was amicably settled between the deceased and the accused persons on 11.06.2005 at the police station and it is not the case of the prosecution that at any time thereafter anything transpired between them, by no stretch of imagination the deceased could have had any occasion to allege any such thing against the accused persons as is contained inEx.PW1/DA. Dr. Kaushik Jain and Dr. Rohit who conducted the surgery on the S.C. No.38/3/10 Page 17 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC person of the deceased have not been examined as witnesses. When the age of the injuries which required surgical intervention could not be ascertained but they were ante mortem and there are two occasions when the deceased engaged in a quarrel, one with the accused persons on 10.06.2005 where he did not sustain any injury and another on 11.06.2005 in a bus, whereafter he was admitted in the hospital, the said injuries can only be attributed to the latter incident.
It is further submitted that as per the prosecution version, the accused had just given a few slaps on the face of the deceased during the altercation which took place on 10.06.2005 between him and the complainant on account of delay in delivery of the stitched clothes. The incident happened on the spur of moment, therefore, neither any intention or motive to kill, nor the knowledge that the alleged slaps would result in the death of the deceased in the ordinary course of nature, could even remotely be attributed to the accused persons. The prosecution led two sets of evidence, each one of them contradict the other. The evidence of one set consists of the testimony of two related witnesses PW Rajesh Kumar and Manoj Kumar who were not present at the time of occurrence and whose evidence is purely hearsay and per se inadmissible. The second set compromises of the complainant and PW2 Avtar Singh who according to the prosecution was the with the deceased at the time of the assault. An analysis of his evidence would show that he is unreliable as none of the other witnesses talk S.C. No.38/3/10 Page 18 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC about his presence with the deceased. Moreover, a scrutiny of his evidence would bring forth a new fact to light in respect of the assault of the deceased after the alleged incident of 10.06.2005 in a bus on his abdomen by some unknown persons. This it is a case where one set of evidence condemns the other set due to which no reliable and trustworthy evidence is available to bring home the guilt of the accused. Moreover, if the injuries sustained by the deceased had been grievous, then the FIR would have registered under section 307/308 IPC instead of 325 IPC. In the compromise Ex.PW3/DA, the deceased had only stated that during the quarrel which took place on 10.06.2005, he had received " Gum Chotein" but had not specified that the had received the same on his stomach. With these submissions, it is prayed that the accused persons are liable to be acquitted. The counsel for the accused also relied upon AIR 1979 SCC 1173, Cri.L.J. 700, Dalip Singh & Ors. VS State of Punjab, Sakatar Singh & Ors. Vs State of Haryana (2004) 11 SCC 291.
8. Having heard the submission of Ld. APP for state and counsel for the accused persons and material placed on record.
With regard to the submissions of Ld. Counsel for the accused regarding the deposition made by the deceased on 15.06.2005 before ASI Rajender Singh whether the same is treated as dying declaration or not. This is with respect to the admissibility of the evidence. In Delhi High Court judgment referred as 2010 VII AD S.C. No.38/3/10 Page 19 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC (Delhi)261, Bhim Singh & Ors. Vs State, in para no.13 it has been observed that " the settled legal proposition with respect to a dying declaration is that though it is not necessary to obtain a certificate or endorsement from a doctor about fitness of the maker to make a statement nor is it necessary that a doctor should be present at the time the dying declaration is recorded, the court needs to ensure that the deceased was not tutored or prompted before he/she made the statement and that the statement made was not a product of his/her imagination. The court further needs to satisfy itself, from the evidence produced before it and other facts and circumstances of the case that the deceased, at the time he/she made the statement was in a fit state of mind and was making a voluntary statement. If this is so, there is no rule of law which requires any corroboration of the dying declaration and it is legally permissible and open to the court to base the conviction solely upon such a dying declaration. The Supreme Court in Nanhau Ram & Anr. Vs State of M.P. : AIR 1988 SC 912 observed that normally the court in order to satisfy whether the deceased was in a fit medical condition to make the dying declaration looks up to the medical opinion, but where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion cannot prevail over it. Though the dying declaration recorded by a Magistrate by itself is not a proof of its truthfulness, it is indeed entitled to a great weight and normally needs S.C. No.38/3/10 Page 20 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC to be accepted, be it is found acceptable after passing the test of scrutiny by the court. The ultimate test in every case would be as to whether the dying declaration can be said to be trustful and voluntarily made" .
9. in Paparambaka Rosamma & Ors. Vs State of Andhra Pradesh, 1997 (7) SC 695, the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that, on the basis of answer elicited from the declarant to the questions put, he was satisfied that the deceased was in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement. Yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and that it was made when the injured was in a fit state of mind, since the certificate of the doctor was only to the effect that the patient was conscious while recording Koli Chunilal Savji & the statement. However, in a later decision ' Anr. Vs State of Gujarat: 1999 VIII AD (SC) 426=1999 (9) SCC 562, it was held that the ultimate test is whether the dying declaration can beheld to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a condition to make the statement in Ravi Chander question. The court relied upon the earlier decision in ' VS State of Punjab: 1998 (9) SCC 303, wherein it had been observed S.C. No.38/3/10 Page 21 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made, need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in anyway interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.
The apparent conflict in the aforesaid two decisions both of which were three Judges' Bench decisions, came to be resolved by a Constitution Bench of the Supreme Court in Laxman Vs State of Mahaashtra 2002 VII AD (SC) 1, the Constitution Bench inter alia held as under : "The court insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the S.C. No.38/3/10 Page 22 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable.
What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately hold the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
10. The Apex Court observed in Paraprambaka Rosamma & Ors. Vs State of Andhra Pradesh 1999 (7) SCC 695 to the effect that " In the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration has been broadly stated and is not the correct enunciation of law.
11. In Sukanti Moharana Vs State of Orissa: 2009 VIII AD (S.C.) 337=JT 2009 (9) SC 697, dying declaration of the deceased by S.C. No.38/3/10 Page 23 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC recorded by a lecturer in the Surgery Department of the hospital where she was taken. She also made an oral dying declaration to her relatives. The dying declaration recorded by the doctor was challenged on the ground that it did not contain any fitness certificate that she was in a stable mental and physical condition to make such a statement. The dying declaration in that case also did not contain the signature or thumb impression of the deceased. However, there was an endorsement on the Bed Head Ticket which indicated that as per the history given by the deceased herself the treating physician had endorsed that it was a case of homicidal burn due to ignition caused by spilling of kerosene. Rejecting the challenge it was held by the Supreme Court that the ultimate test was as to whether dying declaration was truthful or voluntary.
In Nallapati Sivaiah Vs SubDivisinal Officer, Guntur, A.P.: 2007 IX AD (SC) 73=AIR 2008 SC 19, the Supreme Court reiterated that there is no requirement of law that the dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind especially when the dying declaration was recorded by a Magistrate. It was further held that it is the testimony of the Magistrate that the declarant was fit to make statement that gains importance and that reliance can be placed upon such a declaration, even in the absence of the doctor, provided the court ultimately hold the same to be voluntary and truthful.
S.C. No.38/3/10 Page 24 of 52St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC
12. In the present scenario, PW10 ASI Rajender Singh stated that on 15.06.2005, brother of the deceased Rajkumar informed that Rajkumar had again been admitted in the hospital on the basis of the previous MLC. He then went to Hindu Rao Hospital along with Ct. Jaipal and enquired from the doctor as to whether Rajkumar was fit to make statement or not. The doctor on duty had declared Rajkumar fit to make statement and he recorded his statement Ex.PW10/A. The PW10 ASI Rajender Singh in his cross examination, it is denied that the statement Ex.PW10/A was not made by Rajkumar. It is futher denied that his signatures were taken on the blank papers or that later on, he had written the statement purporting to have been made by Rajkumar. It is further denied that no statement was made before him by any witness or their statement was recorded by him.
PW10 ASI Rajender Singh again recalled by application under section 311 Cr.P.C. vide order dt. 07.04.2010 and put forward for cross examination on behalf of the accused persons and he again denied all the suggestions made by the defence counsel regarding manner in which statement of the deceased Rajkumar. On 10.06.2005, when he had gone to the hospital and obtained the MLC from the same doctor, who certified the patient as unfit to give the statement, it is the same doctor from whom the endorsement ' fit for statement' was obtained by him on the MLC. The second endorsement markX on the MLC Ex.PW3/A encircled portion, where the overwriting on the date S.C. No.38/3/10 Page 25 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC was shown as 15.06.2005. It is denied that overwriting in the endorsement on the MLC dt. 15.06.2005 was fabricated by him from the dt 10.06.2005. It is further denied that the deceased did not make any statement on 15.06.2005. The deceased in his statement Ex.PW10/A does not make any reference of scuffle in the bus.
PW2 Avtar Singh in his deposition has categorically stated that there was a scuffle between both the sides, the accused persons give a few slaps and leg blows to the deceased in a fit of anger and broke the glass of the door. Accused Amit told Rajkumar that he had caused loss by breaking the glass of the door. He had seen the accused Amit giving a few slaps blows on the face of Rajkumar and admitted that there was a quarrel in the bus and had some injuries. The deceased Rajkumar has complained of pain in his abdomen.
PW Manoj Kumar did not state anything about the quarrel at the shop of accused Amit Kochar or any quarrel he has heard from Rajkumar in a bus. The accused had a stomach ache and because of the pressure he has compromised the matter. It is also admitted by PW Manoj Kumar that compromise deed Ex.Pw3/A bears the signature of the deceased.
13. It is well known that the certain purpose, the statement of even a hostile witness can be believed. It is for the judge of fact to consider in each case whether as a result of such crossexamination and contradictions, the witness stands thoroughly discredited or can S.C. No.38/3/10 Page 26 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC still be believed in regard to the part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness as a whole, with due care and caution, accept in the light of other evidence on record that part of his testimony which he finds to be trustworthy and act upon it. The similar view is observed in case titled as Gagan Kanojia 2007 (2) Supreme 23.
In case titled as Anil Rai 2001 (5) Scale 41 : AIR 2001 SC 3173, that the mere fact that the court gave the permission to the Public Prosecutor to cross examine his own witness by declaring him hostile does not completely efface the evidence of such witness. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence.
It is now well settled that in the event of a portion of evidence not being consistent with the statements given under section 161 Cr.P.C. and the witness stands declared hostile, that does not, however, mean and imply total rejection of the evidence. The portion which stands in favour of the prosecution or the accused may be accepted but the same shall be subjected to close scrutiny. This view was taken in case titled as Gurpreet Singh (2002) 8 SCC 18.
In the present case, the testimony of the prosecution witnesses is corroborated by the incident as taken place as well as by S.C. No.38/3/10 Page 27 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC the medical evidence. Hence, the testimony of the prosecution witnesses is admissible in law.
14. It is well settled law that the dying declaration, if after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there is no legal impediment to form such dyeing declaration the basis of conviction, even if there is no corroboration. A trustworthy dying declaration corroborated by surrounding circumstances is sufficient to support conviction for murder.
In Sankara Nagamalleswara Rao 1998 Cri LJ 2270 (SC), it is observed that conviction under section 302/34 IPC was upheld on the basis of evidence of eye witnesses and two declarations, one recorded by the investigating officer and the other by judicial magistrate, clearly establishing that the appellants were responsible for causing the death of the deceased.
In case titled as Prabhudaya 2001 Cri LJ 84 (Jharkhand), it was observed that conviction for offence of murder can be sustained on oral dying declaration made by the deceased to his son when his evidence, with regard to dying declaration suffers from no infirmity and the same being truthful without there being any element of embellishment and distortion. It is trite law that when maker of purported dying declaration survives, that same is not statement under S.C. No.38/3/10 Page 28 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC section 32 of the Indian Evidence Act, but is a statement in terms of section 164 Cr.P.C. It can be used under section 157 of the Evidence Act for the purpose of corroboration and under section 155 for the purpose of contradiction.
15. The dying declaration recorded by ASI Rajender Singh, who was not aware that after recording of the statement of the deceased, his condition will be deteriorated and he may not be able to survive and not able to recapitulate his normal position for recording further statement. The statement of the deceased was recorded on 15.06.2005, after giving fitness certificate by the doctor who initially examined the deceased on 10.06.2005. Ex.PW10/A statement of deceased Rajkumar recorded by ASI Rajender Singh does not found to be inconsistent and touted one and why the same is not admitted in evidence in law.
16. As regarding the deposition of PW4 Dr. C.B. Dabas who conducted the post mortem and observed surgical wounds :
(i) one burst open abdominal laparotomy wound with loss of all stitches and omentum and intestinal loops lying exposed with smelling of dirty order of faces.
(ii) one drainage tube wound present in left lumber region on front of abdomen.
(iii) one surgical produced iliostomy would on right side front of abdomen in lumbar region with foul smell.
(iv) a multiple bad sores on the pressure point on the back of S.C. No.38/3/10 Page 29 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC the body. The dark brown discloration of skin around them.
On internal examination of abdomen, he observed that teritonial cavity contained about one liter of pus and pus plaques were sticked to organs and the intestinal walls. Stomach contained about 100 ml of dark brown liquid material. Omentum was adherent to underlying intestinal loops. Small intestine had been surgical resected and anastomosed to caeum. The proximal part of the intestine had been mobilised and iliostomy was done. The drainage was done in right lumbar region through wound no.3. There were surgical stitches near iliocaecal junction which were loose and feacl matter was oozing out. There was foul smell in the contents of the abdomen. Mesentry, omentum were adhered to the underlying organs and intestines. The other organs were intact, trachea contained blood stained fluid. The both plural cavities contained about 250 ml of fluid. Both lungs were oedematous and showed consolidation on both sides, seropurulent fluid was oozing out on cut sections of the lungs. The brain was congested and thin layer of puss was sticking on the outer surface of both cerebral hemispheres. The other organs and structures of the body were found to be intact. PW11 and PW13 Dr. V.P. Singh deposed as per the original treatment record of the deceased Rajkumar vide ex.PW11/A consisting of 36 pages and stated that the deceased was operated by Dr. Kaushik Jain and Dr. Rohit. As per the MLC Ex.PW13/A, the injuries found on the examination of the patient were S.C. No.38/3/10 Page 30 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC as follows :
(i) Tenderness present, contusion present on lower abdomen, otherwise normal.
(ii) External genital area are normal.
(iii) Contusion present on both front parietal regions and nape of neck.
Therefore, the deposition of PW11, PW13 and PW18, summarized the cause of death as septicemia with multi organ dis function syndrome following blunt trauma abdomen. The disfunction of organ cannot be of Suo Moto. The PW4 C.B. Dabas stated that there were internal injury on abdomen and intestinal part of the body of the deceased Rajkumar. The PW2 Avtar Singh and PW10 ASI Rajender Singh categorically stated that there was a scuffle on 10.06.2005 between the deceased Rajkumar and the accused persons who caused the injuries to the deceased with leg and fist blows. However, both the parties have entered into a compromise on 11.06.2005. Thereafter, the blunt force impact caused by the accused persons in the abdomen of the deceased, taken the serious danger to the internal part of the body of deceased Rajkumar which resulted into the death of the deceased Rajkumar. This fact has been proved by the medical as well as oral evidence on record.
It is well settled that the positive evidence in a case is that eye witness who had seen and narrated the entire occurrence. The S.C. No.38/3/10 Page 31 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC evidence of a medical expert is merely an opinion which lends corroboration to the direct evidence. Where there is inconsistency between the direct evidence and the medical evidence in respect of the entire prosecution story, that undoubtedly be a manifest defect in the prosecution case. But if the eye witness account is found to be trustful and trustworthy, medical opinion pointing out alternative possibilities need not be accepted as conclusive.
It is trite law that minor variations between medical evidence and oral evidence do not take away the primacy of the later. Unless medical evidence in its terms goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the prosecution witnesses, their testimony cannot be thrown out. The hypothetical answers given by the doctors cannot corrode credibility of eyewitnesses. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a case the court has to draw adverse inference.
In the present case, the Ex.PW10/A, the statement of the deceased and Ex.PW3/DA compromise deed wherein the deceased on both the occasions stated about the internal injuries (Gum Chotein) on his person. In statement Ex.PW10/A has given detailed description of the assault caused by all the accused persons by their legs and fist blows on the abdomen part of the deceased. The injured in his S.C. No.38/3/10 Page 32 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC statement Ex.PW10/A has categorically stated that " .... Isi Baat Par Dukan Malik Bahar Se Ek Ladke Bunty Jiska Main Asli Naam Nahi Janta Hu, Bulakar Laya, Oos Samay Mera Chota Bhai Avtar Singh Bhi Mere Saath Tha. Dukan Ke Andar, Dukan Malik Amit Aur Bunty Ne Mujhe Laat Ghuso Se Maara...." Before recording of this statement on 15.06.2005, PW10 ASI Rajender Singh also obtained the fitness certificate on the MLC vide Ex.PW13/A. On 15.06.2005 at about 02:40 PM the certificate for unfit for statement was certified but certificate for fitness on 15.06.2005 also obtained from the same doctor. However, overwriting of the date of 15.06.2005 is not deliberate one, it is only a human error which does not create a serious doubt on the authenticity of the medical evidence, since he has no animosity with either of the party nor in the success of the case of the prosecution.
17. Therefore, from the aforesaid discussion and the deposition of the prosecution witnesses, it has been proved beyond all reasonable doubt that the injuries sustained on the abdomen was caused by the blunt force impact in a scuffle took place on 10.06.2005. So far as with respect to the charges framed against the accused persons under section 302 IPC for the purpose of proving the offence, the cause of death was due to blunt force impact on the abdomen part of the deceased which was the result of sudden provocation and thus incident took place on the spur of moment. Therefore, the case of the S.C. No.38/3/10 Page 33 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC prosecution has been fallen in the expansion of section 300 of the IPC. At this state itself, it is relevant to notice section 300 of IPC : Except in the cases hereinafter excepted,culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death or ;
Secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
ExceptionI, when culpable homicide is not murder. Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos : First : That the provocations not sought or voluntarily S.C. No.38/3/10 Page 34 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC provoked by the offender as an excuse for killing or doing harm to any person.
Secondly : That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly : That the provocations not given by anything done in the lawful exercise of the right of private defence.
18. The aforesaid section provides five exceptions wherein the culpable homicide would not amount to murder. Under Exception I, an injury resulting into death of the person would not be considered as murder when the offender has lost his selfcontrol due to the grave and sudden provocation. It is also important to mention at this stage that the provision itself makes it clear by the Explanation provided, that what would constitute grave and sudden provocation, which would be enough to prevent the offence from amounting to murder, is a question of fact. Provocation is an external stimulus which can result into loss of selfcontrol. Such provocation and the resulting reaction need to be measured from the surrounding circumstances. Here the provocation must be such as will upset not merely a hasty, hot tempered and hypersensitive person but also a person with calm nature and ordinary sense. What is sought by the law by creating the exception is that to take into consideration situations. Wherein a person with normal behaviour reacting to the given incidence of provocation. Thus, the S.C. No.38/3/10 Page 35 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC protection extended by the exception is to the normal person acting normally in the given situation.
19. Now come to the second aspect as contended by the defence counsel that there is no intention on the part of the accused persons to cause death of the deceased. It has been contended that if the injuries sustained by the deceased had been grievous, then the FIR would have registered under section 307/308 IPC instead of section 325 IPC.
It is necessary to look into the wordings of the relevant provision. Section 304 of IPC reads : "wh oever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment or either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death" .
Essentially the ingredients for bringing an act under PartII of the section are :
(i) act is done with the knowledge that it is likely to cause death.
S.C. No.38/3/10 Page 36 of 52St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC
(ii) there is no intention to cause death or to cause such bodily injury as is likely to cause death.
20. In Anil Vs State of Haryana, (2007) 10 SCC274, while referring to Virsa Singh (supra) the court laid down : In Thangaiya Vs State of T.N., relying upon a celebrated decision of this court in Virsa Singh Vs State of Punjab 1958 Cri LJ 818, the Division Bench observed :
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 satisfied : i.e.
(a) that the act which causes death is done with the intention of causing death or is done with the intention of 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.
Thus, according to the rule laid down in Virsa Singh case even if the intention of the appellant was limited to the infliction of a S.C. No.38/3/10 Page 37 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC bodily injury sufficient to cause death 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. Therefore, the injuries sustained by the deceased are sufficient to cause death in ordinary course of nature. The injuries caused on the part of the body and the act of the accused persons for causing the injures were done which is likely to cause death. The act of the accused comes under section 304 (II) IPC.
In Afrhim Sheikh & Ors. Vs State of Bengal, AIR 1964 Supreme Court, 1263, Supreme Court considered the question of legality and validity of a conviction under section 304, PartII read with section 34. It observed : The second part no doubt speaks to knowledge and does not refer to intention which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. Can it be said that when three or four persons start beating a man with heavy lathis each hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was the likely result of the beating, that the requirements of section 304, Part II are not satisfied in the case of each of them? If it could be said that knowledge of this type was possible in the case of each one of the assailants, there is no reason why section 304, Part II cannot be read with section34. The common intention is with regard to the criminal S.C. No.38/3/10 Page 38 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC act, i.e. the act of beating. If the result of the beating is the death of the victim and each of the assailants possesses the knowledge that death is the likely consequence of the criminal act, i.e. bating, there is no reason why section 34 or section 35 should not be read with the second part of section 304 to make each individually liable.
22. Now coming to common intention, section 34 of IPC, acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
The principal feature of this section is the element of active participation in the commission of the criminal act. In Devi Lal & Anr. Vs State of Rajasthan, AIR 1971, Supreme Court, 144, the Supreme Court observed : Under section 34 when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The words "in furtherance of the common of all" are a most essential part of section 34 of the Indian Penal Code. It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of the crime. Common intention means a prearranged plan. On the other hand, section 149 of the Indian Penal Code speaks of an offence being S.C. No.38/3/10 Page 39 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC committed by any member of an unlawful assembly in prosecution of the common object of that assembly. The distinction between " common intention" under section 34 and "c ommon object" under section149 is of vital importance.
23. In Bengali Mandal @ Bengal Mandal Vs State of Bihar, JT 2010 (1) SC 49, the court observed : "The position with regard to section 34 IPC is crystal clear. The existence of common intention is a question of fact. Since intention is a state of mind, it is therefore, very difficult, if not impossible, to get or procure direct proof of common intention. Therefore courts, in most cases, have to infer the intention from the act
(s) or conduct of the accused or other relevant circumstances of the case.
In Vajayanti Vs State of Maharashtra (2005) 13 SCC 134, the court observed that section 34 of the Indian Penal Code envisages that "whe n a criminal act is done by several persons in furtherance of the common intention of, each of such persons is liable for the act, in the same manner as if it were done by him alone. The underlying principle behind the said provision is joint liability of persons in doing of a criminal act which must have found in the existence of common intention of enmity in the acts in committing the criminal act in furtherance thereof. The law in this behalf is no longer res integra. There need not be a positive overt act on the part of the S.C. No.38/3/10 Page 40 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC persons concerned. Even an omission on his part to do something may attract the said provision. But it is beyond any cavil of doubt that the question must be answered having regard to the fact situation obtaining in each case.
24. In the present case, the accused persons are named in the Ex.PW10/A and accused Amit Kochar is the owner of the said shop who used filthy abuses which was not tolerated and both the parties has started to exchange hot abuses and started fighting. The accused Amit Kochar alongwith other accused persons assaulted the deceased Rajkumar with leg and fist blows which resulted into severe injuries in the abdomen of the deceased Rajkumar. Neither the fight was planned one and each of the accused persons were aware of the act and each one participated in the commission of the offence. Accordingly, the case of the prosecution against the accused persons proved for the offence punishable under section 304(II)/34 IPC and not under section 302/34 IPC. Accordingly, the accused persons namely Gyanender Pal, Rajeev @ Monti, Amit Kochar and Devender are convicted under section 304(II)/34 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court today ADDITIONAL SESSIONS JUDGE
i.e. on 07.10.2010 (WEST04):DELHI
S.C. No.38/3/10 Page 41 of 52
St. Vs Gyanendra Pal etc.
FIR No.254/05, PS: Mukherjee Nagar,
U/s 302/342/34 IPC
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST04), DELHI
SC No. : 38/3/10
State
Versus
1. Gyanendra Pal @ Boby
S/o Mool Chand
R/o H. No. B272
Gali No.11, Parvati Anchal
Sant Nagar, Delhi.
2. Rajeev @ Monti
S/o Devender Singh
R/o N9, Mukherjee Nagar
Delhi.
3. Amit Kochar
S/o Jagdish Kochar
R/o N9, Mukherjee Nagar
Delhi.
4. Devender @ Ram
S/o Mohinder Singh
R/o F348, Gali No.11
Bhagiriti Vihar, PS Gokulpuri
Delhi.
Case arising out of :
FIR No. : 254/05
U/s : 302/342/34 IPC
P.S. : Mukherjee Nagar
S.C. No.38/3/10 Page 42 of 52
St. Vs Gyanendra Pal etc.
FIR No.254/05, PS: Mukherjee Nagar,
U/s 302/342/34 IPC
Order on Sentence
Present: Sh. Subhash Chauhan, Ld. APP for state.
All the convicted from J/C with counsel.
Having heard the submissions of Ld. APP for state and the counsel for the accused person on the point of sentence.
Ld. APP for state argued that the prosecution proved its case against the accused person beyond all reasonable doubts under section 304(II)/34 IPC vide separate detailed judgment dt 08.10.2010. The charge against the accused persons was framed for the offence under section 302/342/34 IPC, however the prosecution succeeded to prove the charges only for offence punishable under section 304(II)/34 IPC. The testimony of prosecution witnesses is trustworthy, corroborated and believable. There is no rebuttal to the deposition of the prosecution witnesses except to denial of the allegations and charge. The deceased in his dying declaration categorically deposed against the accused persons that they are the person who caused injuries due to which he died. There is no specific denial come forward except to simply denied the charges as levelled against the accused with the contention that they have been S.C. No.38/3/10 Page 43 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC falsely implicated in this case.
As per section 304 IPC which defines that :
"Wh oever commits culpable homicide not amounting to murder shall be punished with ( imprisonment for life) or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."
In a case titled as State Vs. Dhool Singh 2004 Cri LJ 931 (SC), the Supreme Court has held that " that the courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is S.C. No.38/3/10 Page 44 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC controlled by law and to some extent by judicial discretion, applicable to the facts of the case. Therefore, there is need for the courts to apply its mind while imposing sentence."
It is no part of the definition of culpable homicide that the act which causes death should be a malicious act. Whatever may be the motive which incites the action, and whether or not any motive whatsoever be discoverable. The accused persons has intention to cause bodily injury likely to end in death or they understand that it was probable result of their act. It is further submitted by Ld. APP that requisite knowledge was proved against the accused after seeing that these are external and visible acts of the mind. Hence the convicted is liable for maximum punishment as prescribed under the provision of law.
Ld. Counsel for the convicted humbly submitted that the convicted persons remained in judicial custody for sufficient period of time. They have not been previously convicted and having clean antecedents. The convicted are young boys and have a long life to spend, if remain in judicial custody further it will not only punish to them but also to their S.C. No.38/3/10 Page 45 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC family members and dependents and requested to release them for the period of imprisonment already undergone.
In view of aforesaid submission made, punishment can be said to be the sanction imposed on the offender for the infringement of law.
When a person is tried for an offence and is found guilty, it is the duty of the court to impose appropriate sentence on him. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.
In the present case, the internal injuries was caused on the person of the deceased Rajkumar in the abdomen by the convicted. The PW2 Avtar Singh and PW3 Rajesh Kumar also proved that the incident of quarrel between the deceased Rajkumar and the accused persons has been taken place on 10.06.2005. The deceased Rajkumar sustained the injuries in the free fight in his abdomen. However, the matter was amicably settled and both the parties entered into a compromise vide compromise deed Ex.PW3/DA. They entered into a compromise in pursuance of their family members. On 13.06.2005, the injured S.C. No.38/3/10 Page 46 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC Rajkumar was again hospitalized in emergency as having ailment in the stomach and rushed to Hindu Rao Hospital where he was medically treated on 15.06.2005, and his statement Ex.PW10/A was recorded by the investigating officer wherein the deceased Rajkumar alleged the names of the accused persons who caused the injuries in the internal abdomen part of the body. PW Dr. V.P. Singh opined the cause of death as 'sep ticemia as a result of trauma in the abdomen' vide Ex.PW11/A and proved that the deceased Rajkumar was admitted in the hospital on 10.06.2005. Rajkumar was again admitted in the hospital on 13.06.2005 due to injuries sustained in the lever and intestine and its membrane.
The aims of punishment are now considered to be retribution, justice deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments.
An increasingly important aspect of punishment is deterrence and S.C. No.38/3/10 Page 47 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial though, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided.
The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle consideration of culpability that are raised by the special facts of each case. Judge in essence affirm that punishment ought always to fit the crime; yet in practice sentence are determined largely by other considerations sometimes it is the correctional needs of the perpetrator that are offered to justify a S.C. No.38/3/10 Page 48 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic result of his crime. The question of sentence is a matter of discretion for trial court and no limits can be fixed by judicial precedents.
It has been very aptly indicated in Dennis Councle MCG Dautha of California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. Therefore, the discretionary judgment in the facts of each case is the only way in which such judgment may be equitably distinguished. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court.
In case titled as Dhananjoy Chatterjee V. State of West Bengal S.C. No.38/3/10 Page 49 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC (1994)2 SCC 220, the Supreme Court held that " imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime."
The court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The act committed by the accused persons with the knowledge that it is likely to cause the death because they hit on the abdominal part of body.
However it is not being able to prove and come to conclusion that the act was done with the intention to cause death or intention to cause such bodily injury as was likely to cause death. The intention of the accused persons to teach the lesson to the deceased if factual matrix of the whole case is taken into consideration it must be also beyond any doubt that accused was responsible for inflicting those injuries and he must be attributed only with the sufficient knowledge. The court must be aware S.C. No.38/3/10 Page 50 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC sight of the fact that death of the deceased occurred due to the act of the accused which is worst kind of crime in a civilized society governed by the law. The right to live with dignity of life and liberty of the individual is envisaged in the Preamble to the Constitution. The common man may not lose faith in the law enforcement machinery and the foundations of the criminal justice delivery system require stern action to be taken.
The court require to adopt punitive stand.
In view of the submission made by Ld. Counsels for the convicted it is matter of facts that the convicted are young persons and clean antecedents as well as having a long future, if harsh sentence is awarded they may remain hardcore criminals and likely to commit serous crime. Therefore, to consider the law on sentence and submissions, the convicted namely Gyanendra Pal @ Boby S/o Mool Chand, Rajeev @ Monti S/o Devender Singh, Amit Kochar S/o Jagdish Kochar and Devender @ Ram S/o Mohinder Singh are sentenced to rigorous imprisonment for three years each of the convicted and fine of Rs.One Lakh in default of one year simple imprisonment under section 304 (II)/ 34 IPC. In addition to this, the convicted be also directed to deposit a S.C. No.38/3/10 Page 51 of 52 St. Vs Gyanendra Pal etc. FIR No.254/05, PS: Mukherjee Nagar, U/s 302/342/34 IPC sum of Rs.One Lakh each as compensation to the legal heirs of the deceased Rajkumar, in default of payment of compensation, the convicted shall undergo for the period of one year simple imprisonment.
Benefit of section 428 Cr.P.C be also awarded to all convicted. The period already undergone be set off from the period of sentence awarded to the convicted.
I think the sentence awarded will meet the end of justice and also have a deterrent as well as reformatory way in the mind of the convicted. Copy of this order be given to the convicted free of cost forthwith.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court ADDITIONAL SESSIONS JUDGE
today i.e. on 13.10.2010 (WEST04):DELHI
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