Delhi District Court
State vs . Rahul & Others on 10 June, 2022
IN THE COURT OF SAMAR VISHAL,
ADDITIONAL SESSIONS JUDGE-08,
WEST DISTRICT: TIS HAZARI COURTS: DELHI
CNR NO.: DLWT01-000702-2013
SC No. 56844/2016
State Vs. Rahul & others
FIR No.233 /2013
Police Station : Ranhola.
Under Section : 304/323/325/34 IPC
In the Session Case of :
State
Versus
1) Rahul
S/o Rajpat Singh
R/o House No.3A/K-5 Extn, Part-I,
Mohan Garden,
Uttam Nagar, Delhi
2) Rambir
S/o Bhuri Singh
R/o House No.3A2/32
Mohan Garden,
Uttam Nagar, Delhi
3) Daulat Ram
S/o Lalat
R/o House No. R 3A/138, Gali No.8,
Mohan Garden,
Uttam Nagar, Delhi
4) Smt. Sharda
W/o Lajja Ram
R 3A/138, Gali No.8,
FIR No. 233/2013
State vs Rahul & others Page No. 1/45
Mohan Garden, Uttam Nagar,
Delhi
5) Rajpat
S/o Jai Singh
House No.3A/K-5 Extn, Part-I,
Mohan Garden,
Uttam Nagar, Delhi
Date of Institution : 19.02.2014
Date of reserving Judgment : 03.06.2022
Date of pronouncement : 10.06.2022
Appearances
For the State : Mr. Santosh Kumar,
Additional Public Prosecutor
For accused : Mr. S.A. Rajput and Sharad Chaturvedi and
Amit Kumar Advocates for all accused.
JUDGMENT
1. This is the judgment in the trial of the five accused Rahul, Rambir, Rajpat, Daulat Ram and Sharda accused of causing death and committing culpable homicide not amounting to murder of Ram Mahesh and causing grievous hurt and simple hurt to Munesh, Reena Devi and Pappu. This death and hurt are the result of an assault on these three persons by the accused on 20.07.2013 at around 10:00 AM FIR No. 233/2013 State vs Rahul & others Page No. 2/45 in the morning. The son of the deceased whose name is Munesh, is the complainant of this case. His father Ram Mahesh died in this incident. Munesh suffered grievous injury in his finger.
2. The case of the prosecution emanates from an FIR registered on the complaint Ex.PW4/A. This complaint was made by Munesh, the son of the deceased. It is alleged by Munesh that he was the resident of Mohan Garden. His uncle Pappu also live nearby. In the lane of Pappu, the accused Sharda Devi used to live. The house of Sharda was frequented by antisocial people. Around 5-6 months back, his uncle Pappu asked her to mend her ways. She did not like it and after that used to fight with his uncle frequently. Due to this reason, Sharda Devi abused and threatened his uncle Pappu on 19.07.2013. On 20.07.2013, his uncle Pappu with his wife Reena came to their house and informed his father about the previous day's incident. At around 10:00 AM, the complainant, his father Ram Mahesh, his uncle Pappu and Reena went to the house of Sharda to talk to her. But as soon as they reached the house of Sharda, she started abusing them. Daulat Ram and Ranjeet, who were present with her started fighting with them. Sharda exhorted that she will teach them a lesson that what is the fate of backbiting and defaming someone. The accused Rahul, Rambir and Rajpat also came there and started beating them with iron griddle (karcha/palta used by sweet makers-halwais), rod and lathi. Rahul had an iron griddle in his hand. Rambir had an iron rod in his hand. Daulat Ram and Ranjeet had lathis. Rahul hit the iron griddle on the head of his father. His father fell down on the ground. Daulat Ram and Ranjeet assaulted his uncle Pappu with lathis. Rambir had beaten the complainant with iron rod and Daulat Ram with his fists. Sharda Devi picked a brick and hit FIR No. 233/2013 State vs Rahul & others Page No. 3/45 Reena, his aunt on the face. On seeing that his father was bleeding, these accused ran away from the spot. His uncle Pappu called the police at 100 number. PCR came and took the complainant and his father to the hospital for medical treatment.
3. On 23.07.2013 at 10:40 PM, the complainant, after two days of the incident lodged this complaint Ex.PW4/A on which the police registered the FIR under section 308/34 of IPC. Complainant's father Ram Mahesh died on 25.07.2013 during his medical treatment. The case was converted to section 304 of IPC. The postmortem of Ram Mahesh was conducted. The first accused arrested was Rambir and Rahul on 24.07.2013. The accused Rahul got recovered that iron griddle from his house on the same day vide seizure memo Ex.PW12/B. The accused Rambir recovered the iron rod from his house on the same day vide seizure memo Ex.PW12/D. Later on, the accused Rajpat was arrested after he surrendered in the court on 03.10.2013. The investigating officer obtained the subsequent opinion from the doctor who conducted the postmortem regarding the nature of injuries and the weapon of offence used. The investigating officer took the opinion of the doctor regarding the injuries of complainant Munesh which turned out to be grievous. The investigating officer filed the initial chargesheet against the accused Rambir, Rahul and Rajpat on 22.10.2013. After the remaining accused Daulat Ram & Sharda's arrest on 26.10.2013, the investigating officer filed the supplementary chargesheet against them on 25.01.2014.
4. This is the case of the prosecution. It is based on eye witnesses account of the incident, the recoveries of weapons and the medical evidence.
FIR No. 233/2013 State vs Rahul & others Page No. 4/455. On 13.03.2014, charge was framed against all the five accused under section 304 read with 34 of the Indian Penal Code for causing the death of Ram Mahesh, under section 325/34 IPC for causing grievous hurt to the complainant Munesh, and under section 323 IPC for causing simple hurt to Pappu and Reena Devi to which these accused did not plead guilty and claimed trial.
6. During trial, the prosecution has examined sixteen witnesses. Among them, three are eye witnesses of the incident and rest are those related to the investigation of the case or the doctors etc.
7. The case is based on the eye witness's account. There are three eye-witnesses in this case, who according to the prosecution have seen the incident and were also injured in it.
8. These are the complainant PW-4 Munesh, PW-10 Reena Devi and PW-5 Pappu. Munesh is the son of the deceased Ram Mahesh. He was also injured in the incident and his injury was grievous. Pappu and Reena who suffered simple injuries are the uncle and aunt of the complainant Munesh. Since they are the eye witnesses of the case, the entire case is based on the edifice of their testimonies. All of them have them have supported the case of the prosecution.
9. The first eye witness examined by the prosecution was PW-4 Munesh. His complaint is reproduced above. In court he testified that he runs a sweet shop. His uncle Pappu resides in Gali No.8 Mohan Garden, near his residence. Accused Sharda Devi also resides near the house of Pappu. Some anti-social elements used to come to her house. His uncle Pappu tried to convince her against these visits because she belonged to the native place of his uncle. Accused Sharda felt annoyed and did not listen these requests of Pappu. Antisocial elements FIR No. 233/2013 State vs Rahul & others Page No. 5/45 continued to visit her house. She threatened his uncle to see him. She also abused and quarreled with his uncle. His uncle called his father and his father visited the house of Sharda and he also tried to persuade her in this regard. She abused his father as well and quarreled with him. On 19.07.2013, his uncle Pappu and his father Ram Mahesh had gone to the house of Rahul, who also belonged to their native place to make him understand as he used to take side of accused Sharda. Rahul was asked not to quarrel and abuse his uncle and his father and convey Sharda to sever her relations with the antisocial elements. But Rahul did not pay heed to the request of his uncle and his father. On 20.07.2013, accused Rambir send a man to his house to call his father and his uncle for compromise. His father, uncle and his aunt went to the house of Rambir at around 9:30 AM. He also followed them. Accused Sharda Devi, Rahul, Rajpat, Rambir and Daulat Ram were present outside the house of Rambir. On seeing them, these accused abused and attacked them with weapons in their hands and injured them. Accused Rahul had an iron griddle in his hand. Accused Rambir had an iron rod in his hand. Accused Dautat Ram and Rajpat had lathis. They attacked them with those weapons. Accused Sharda had a brick, with which she hit the face of his aunt. When he tried to save his father, Rambir hit iron rod on his head. Rahul hit the griddle on the head of his father Ram Mahesh after which he fell down on the road. Sharda's son Ranjit also attacked them with lathi. Daulat Ram and Ranjit assaulted Pappu and Reena with lathis. Daulat Ram also hit a lathi on the complainant. He suffered injuries on his head and other parts of the body. One of his fingers was ripped apart. He was beaten with lathis. He bled from his head and ripped finger. The accused then ran away FIR No. 233/2013 State vs Rahul & others Page No. 6/45 from the spot. His uncle called the police which took him and his father to DDU hospital. On 23.07.2013, he went to the police station, recorded his FIR on his complaint Ex.PW4/A. He helped the investigating officer to prepare the site plan of the place of incident Ex.PW4/B. On 23.07.2013, in the mid-night, the accused Rahul and Rambir were arrested at his instance by the police. He identified all the accused in the court as the assailants and also identified the exhibits which were the weapon of offences, the iron rod Ex.P-1 and the iron griddle as Ex.P-2. In cross examination, he stated he had not seen any bad elements coming to the house of Sharda. He only heard about them from his father. He does not know that which person was sent by Rambir to his house to call them for compromise. There were around 25-30 neighbours at the spot.
10. The next important witness is PW-5 Pappu, the brother of deceased. He deposed on similar lines as that of the complainant PW-4 Munesh. Regarding assault, he said that when they were going for compromise to the house of Sharda Devi, they were met by Daulat Ram and Ranjit. Sharda Devi and Rambir were present near the house of Rambir. On seeing them, Sharda Devi abused them and said "aaj mai batati hu ki kisi ki burai kya anjam hota hai". Rahul and Rajpat also reached there. Rahul had a griddle in his hand. Rambir had an iron rod. Daulat Ram and Ranjit had lathis. They all beaten him, his wife Reena, his brother Ram Mahesh and nephew Munesh. Rahul hit that griddle on the head of his brother. Sharda Devi hit a brick on the face of his wife. Daulat Ram and Ranjit beaten him, his wife and nephew with lathis. Rahul again hit the head of his brother with griddle on exhortation of Sharda Devi "isko jaan se maar do" after which his FIR No. 233/2013 State vs Rahul & others Page No. 7/45 brother fall on the road. Then these accused beaten them. Rambir hit the iron rod over the head of his nephew. His nephew sustained injuries on head and finger. When the accused ran away, he called the police. Police took them to the hospital. On 25.07.2013, his brother Ram Mahesh passed away. He identified all the accused in the court as the assailants and also identified the exhibits which were the weapon of offences, the iron rod Ex.P-1 and the iron griddle as Ex.P-2. In cross- examination, he stated that he cannot tell if the saria (iron rod) Ex.P1 is easily available in the shop of building material. He had not given any complaint against Sharda Devi about the visits of anti-social elements to her house prior to five-six months of the incident of this case. So far as he understood, house no. R-3/A-2/28 Mohan Garden was owned by accused Rambir. He admitted that a quarrel took place between him and Sharda Devi 5/6 months prior to the incident. It was an issue of children because a quarrel took place in school between the son of Sharda and his son. Sharda's son hit a brick on the head of his son. This fact was told to him by his son. He did not make any complaint to the police in this regard.
11. The next witness is PW-10 Reena Devi. About the assault, she deposed that Ranjeet and Daulat Ram started quarreling with them. In the meantime, Rahul, Rambir and Rajpat also arrived there. Accused Rahul had iron griddle having wooden handle, in his hand. Accused Rambir had iron rod. Accused Daulat Ram and Ranjeet had lathis in their hand. All the accused attacked on them with weapons which were in their hands. Accused Rahul hit the iron griddle on the head of Ram Mahesh, due to which he fell down on the ground. Accused Daulat Ram and Ranjeet beaten her husband with lathis. Rambir, Daulat Ram FIR No. 233/2013 State vs Rahul & others Page No. 8/45 and Rajpat attacked his nephew Munesh with the weapons which were in their hands. Accused Sharda Devi hit the brick on her face. In cross- examination, she deposed that she knew the accused Sharda for the last about 2/3 years prior to the incident. She was not on visiting terms with Sharda. She never talked with Sharda whenever they meet in the street. One day before the incident, she gave a complaint against Sharda regarding visits of unwanted people in her house. She admitted that accused were residing in the same locality where she resides. She further admitted that they were having the visiting terms with the accused persons prior to the incident. Police arrived at the spot in about 15 to 20 minutes of making the call. Police took the offenders from the spot. Some of them had fled away from the spot. She cannot tell the names of accused persons who were taken by the police from the spot. Her jeth, his wife, son, her husband and she were also taken by the police to Deen Dayal Hospital as her jeth was in critical condition. The police recorded her statement for the first time on the date on which her jeth expired. She denied the suggestions that her jeth had sustained injuries due to the griddle blow given on his head by her husband and that for that reason, neither she nor her husband were taken to the hospital along with her jeth by the police or that they both were hiding themselves from the police till the registration of the FIR.
12. Next are the doctors. PW-13 is Dr. Komal Singh, the HOD of Department of Forensic Medicine, DDU Hospital. She testified that on 26.07.2013, she conducted the postmortem of Ram Mahesh. The alleged history was, that on 20.07.2013 at about 10:00 am, the deceased was attacked by six known persons. Due to this attack injured Ram Mahesh was admitted in DDU Hospital. He expired during FIR No. 233/2013 State vs Rahul & others Page No. 9/45 treatment on 25.07.2013 at about 08:45 pm. The deceased had four external injuries mentioned in postmortem report. The time since death was consistent to time of hospital death. The cause of death was due to cranio cerebral injury (head injury) subsequent to the forceful blunt injuries imparted directly over the head by the other party and these injuries were sufficient to cause death in ordinary course of nature. The manner of death was homicidal. She proved her inquest report Ex.PW13/A. The external injuries mentioned in the postmortem report are 1."C" shape surgical incision present over left fronto-temporo- parieto with 18 surgical sutures. 2. Lacerated would present over occipital region horizontally placed of length 8cm and 8 surgical sutures. 3. Graze abrasion present over posterior iliac spine right of size 4cm x 2cm with brownish in colour. 4 Graze abrasion present over posterior aspect of right shoulder of size 3m x 1cm with brownish black in colour. She further deposed about her subsequent opinion Ex.PW13/B. The investigating officer sent to her the weapons of offence - iron rod and griddle Ex.P-1 and Ex.P-2. According to her opinion, injury no. 1 ("C" shape surgical incision present over left fronto-temporo-parieto with 18 surgical sutures) mentioned in the postmortem report could be possible by the griddle Ex.P-2 and injury no. 2 (Lacerated would present over occipital region horizontally placed of length 8cm and 8 surgical sutures) could be caused by iron rod Ex.P-1.
13. The second doctor examined is Dr. Divesh Kumar, a private practitioner who gave some medicine etc., to Reena. He proved his receipt Mark -A. He was not cross examined by the accused.
FIR No. 233/2013 State vs Rahul & others Page No. 10/4514. PW-14 is Dr. Adhikari. He proved the MLC of complainant Munesh Ex.PW14/A, according to which the injury was sustained by him from blunt object. He also proved the MLC of the father of complainant. According to the MLC, the complainant sustained a CLW approx. 3.5cm x .03cm x .1cm over pareto occipital region of head apart from other injuries. He also had CLW of approx. 3cm x .2cm x . 1cm over medias aspect of little finger. The doctor opinioned this injury as grievous. Ex.PW14/B is the MLC of Ram Mahesh which shows that he had two clean lacerated wounds, 4x.5cm on the parietal region and 6x.05 cm on the occipital region. His pupils were dilated and were not reacting to light. He was unconscious at that time. The nature of injury was dangerous to life as per the initial aforesaid MLC and commensurate with the injuries shown in the post mortem report.
15. The next important witness is investigating officer PW-16 SI Ranbir. According to his testimony, the investigation was assigned to him on 23.07.2013. He saw DD No.16A Ex.PW3/A and kept the same pending as the injured was hospitalised and unfit for statement. He called complainant Munesh in the police station and recorded his statement Ex.PW4/A. He made his endorsement on the complaint Ex.PW16/A and registered the FIR. He visited the spot and prepared the site plan Ex.PW4/B at the instance of the complainant. He searched the accused but could not find them. On the next date i.e. 24.07.2013, he joined complainant in the investigation and went to the house of Rahul. Rahul was in his house. The complainant identified him after which he arrested Rahul vide arrest memo Ex.PW4/C. He recorded the confessional statement of Rahul and subsequent to it, recovered the iron griddle used by him in the crime from his house. Then they went FIR No. 233/2013 State vs Rahul & others Page No. 11/45 to the house of accused Rambir and apprehended him. After interrogation and confession, he arrested Rambir vide arrest memo Ex.PW4/E. Rambir recovered iron rod used by him in the crime from his house, which he seized through seizure memo Ex.PW12/D. On 25.07.2013, he came to know that Ram Mahesh has died. On the next day, he got the postmortem conducted after completing the documentary formalities. The concerned doctor also handed certain exhibits like blood in gauze to the investigating officer which he seized through seizure memo Ex.PW16/F. On 01.10.2013, he got issued the non-bailable warrant against Sharda, Daulat Ram and Rajpat. On 03.10.2013, Rajpat surrendered before the court, whom he arrested vide arrest memo Ex.PW12/E and completed the necessary formalities of the investigation. On 26.10.2013, the remaining accused Sharda and Daulat Ram had surrendered in the court who were arrested by him vide arrest memo Ex.PW16/G and Ex.PW16/I. He identified all the accused in the court and the exhibits Ex.P-1 and Ex.P-2.
16. This is the primary evidence of the prosecution. The remaining witnesses are police witnesses involved in the investigation. Their evidence is not reproduced for the sake of brevity and to avoid reproduction of evidences.
17. After the prosecution evidence was over, the accused were examined under section 313 Cr.PC and the incriminating circumstances appearing in evidence were put to them. All the accused denied the evidence against them and stated that they have been falsely implicated. The accused Rambir also said that the complainant requested him to give evidence against the other accused which he refused. He was related to both the sides and that is why he has been FIR No. 233/2013 State vs Rahul & others Page No. 12/45 falsely implicated in this case. The accused Daulat Ram stated that he is implicated in this case as he is relative of Sharda. The accused Sharda stated that she is the relative of the complainant. The complainant wanted her to leave the locality and that is why she was implicated in this case. The accused did not lead any defence evidence.
18. I have heard the final arguments for prosecution advanced by learned Public Prosecutor Sh. Santosh Kumar and for defence by Sh.S.A. Rajput, Sharad Chaturvedi and Amit Kumar for all accused. Learned Public Prosecutor has argued that the entire case is based on the testimonies of eyewitnesses who were present on the scene and were also injured in the incident. He further stated that there is nothing in the cross-examination of the eyewitnesses and other prosecution witnesses which could be said to be sufficient to create a doubt in the story of the prosecution. All three eyewitnesses have given a true and reliable account of how the offence was committed in this case and there is nothing to disbelieve their unflinching and cogent testimony on this issue. He stated that the evidences given by the prosecution witnesses are so meticulously flawless that it points to only one conclusion that the prosecution is able to prove its case beyond reasonable doubt, which is the required standard for it. He stated that the testimony of the witnesses was consistent throughout. He has read the evidence and the important documents to connect the role of the accused with the crime alleged. He stated that the prosecution has broken the back of this case by examining these eyewitnesses and corroborating them with medical evidence and that the accused have been duly identified by the eye witnesses. The postmortem report has FIR No. 233/2013 State vs Rahul & others Page No. 13/45 clearly established that the death of Ram Mahesh was homicidal in nature. The major weapons were recovered from accused and proved in the case. It is stated by him that the case has been proved beyond reasonable doubts and all the accused deserves to be convicted for the offences with which they are charged.
19. On the other hand, the defence has focused on the issues relating to the contradictions, variations and improvements in the testimonies of the witnesses, no independent witness of the incident, delay in the registration of the FIR and no proper investigation in this case. I will deal with these submissions ahead in this judgment.
20. Now to summarise the case, the deceased Ram Mahesh, his son Munesh, his brother Pappu and Reena (Pappu's wife) were attacked by the six accused. One of them was juvenile, who faced the inquiry before the Juvenile Justice Board. The victims were attacked by a griddle, lathis, iron rod and fists. The victims and the accused are of same locality. They seem to hail from the same place. They have some previous issues between them like victims dislike some people coming to the house of Sharda. But it was not such a serious thing. On those minor issues, a fight occurred between them, which later took this unfortunate turn of event. Ram Mahesh has to sacrifice his life for such a small matter. Deceased Ram Mahesh was attacked by the iron griddle over his head, which proved fatal and he passed away after around five days of medical treatment. The postmortem report gives us the cause of death as homicidal and the reason was the head injury of the deceased. Therefore, the case is based on the eye-witnesses testimonies relating to the cause of death of Ram Mahesh and not on circumstantial evidence.
FIR No. 233/2013 State vs Rahul & others Page No. 14/4521. Now coming the appreciation of evidence.
22. A witness that saw the happening of the incident being inquired by the court is an eyewitness. Reliable evidence of eyewitnesses cannot be disregarded in the absence of strong reasons. Conviction can be based upon the testimony of sole eyewitness if the same is found wholly reliable. In case, if his testimony is not found to be wholly reliable, the court may insist upon some independent corroboration.
23. The prosecution has three eyewitnesses to this matter. They are Munesh, Pappu and Reena. They are the linchpin of the prosecution case. They have supported the case of the prosecution, described the assault and identified the accused and the weapons.
24. Eyewitnesses play an important role in the criminal justice system. The quality of evidence of an eyewitness depends on many factors prominent among them are his view in which the crime is committed, his confidence with respect to the accuracy of the description of the crime and identification of the accused and his description, the amount of attention the witness paid to the crime during its occurrence, the probability of the witness being present at the place of incident, the accuracy and probability of what he is defining etc. The law related to the appreciation of evidence of eyewitnesses is completely settled that generally the testimony of eyewitness of the incident is considered credible unless and until it is specifically shown or proved to have a taint for any reason on which it is assailed. Generally, the courts tend to believe what the eyewitnesses depose in the court and it is only when there exists grave and material discrepancies and contradictions in their statements which compels the court to think and doubt that whether the eyewitness is giving a truthful FIR No. 233/2013 State vs Rahul & others Page No. 15/45 account, it can come in the domain of suspicion. When the tenacity and doggedness of the eyewitness is suspicious, when the truthfulness of the testimony of the eyewitness is shrouded in grave clouds of suspicion and falsity, the court may disbelieve that witness or may look for such corroboration of his evidence which are capable of removing the blemish from his evidence. However, the contradictions and omissions which are not material regards being to the facts of the case, those can be overlooked. Way back in 1957, in Vadivelu Thevar v. The State of Madras, A.I.R. (1957) S.C. 614, Hon'ble Supreme Court has divided the witnesses in three categories. It was held that as a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. Generally speaking, oral testimony in this context may be classified into three categories, namely:(1) Wholly reliable, (2) Wholly unreliable, (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has FIR No. 233/2013 State vs Rahul & others Page No. 16/45 to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
25. It is not out of place to mention here that all the three eyewitnesses were also injured in the incident and they also fall in the category of injured witnesses. The law regarding injured witness is that the evidence of an injured witness must be given due weightage. The statement of injured is generally considered to be very reliable and it is unlikely that she or he will spare the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. The evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
26. In Abdul Sayed vs State of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court laid down that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.
FIR No. 233/2013 State vs Rahul & others Page No. 17/4527. In State of UP vs Naresh (2011) 4SCC 324 it was observed by Hon'ble Supreme Court that the evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable, and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence, and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
28. Now with these legal parameters regarding appreciation of evidence of eyewitness and being conscious of the fact that the burden of proof in a criminal trial is always on the prosecution and it never shifts and to secure a conviction, the prosecution has to prove its case beyond reasonable doubt on the basis of acceptable evidence, I will proceed for the appreciation of evidence. It is a settled principle of criminal law jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. Though it is neither possible nor prudent to have a straight-jacket formula or principle which would apply to all cases without variance and every case has to be appreciated on its own facts and in light of the evidence led by the parties. It is for FIR No. 233/2013 State vs Rahul & others Page No. 18/45 the court to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt.
29. The testimonies of the eyewitnesses in this case now have to be judged on the anvil of the law discussed above.
30. The most important evidence in this case is of complainant Munesh his uncle Pappu and Reena. What they have deposed is already stated above. The complainant Munesh has given the account of the incident in his initial complaint ExPW4/A and also in court. He is the eyewitness of this case and also an injured witness. The testimony of witness Munesh in this case inspires confidence. He is a wholly reliable witness. His evidence deserves to be given due weightage due to its inherent consistency at different stages. He was also injured in the incident and the statement of an injured is generally considered to be very reliable and it is unlikely that he will spare the actual assailant in order to falsely implicate someone else. He was grievously injured in the incident and his father died due to that assault; therefore, his testimony has its own relevancy and efficacy. Why would he, if he has witnessed the incident, would not like the actual culprit punished or want to let the actual offender go unpunished for the commission of the offence merely to implicate the accused on an improbable and unproved defence of enmity. The evidence of Munesh has to be relied upon unless there are grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein which are absent in FIR No. 233/2013 State vs Rahul & others Page No. 19/45 this case as will be discussed further. The complainant has given the account of incident immediately in his complaint and there was not much delay in the registration of the case. Munesh sticked to his allegations throughout the case. He has named all the accused as the assailants. They know each other very well as according to him, they live in same locality and some are even related to each other. Therefore, the identification of the accused by this witness or in fact by other eyewitnesses Pappu and Reena is not an issue. He has categorically stated in his evidence in court that he, his father and other eye witnesses went to talk to Sharda where they were assaulted. He has given a definite account that which accused used which weapon and in what manner beaten or assaulted which victims. For example, he has stated that the accused Rahul had an iron griddle in his hand with he hit his father over his head and that accused Daulat Ram assaulted him with lathi due to which he sustained injury on his head and finger. The accused Daulat Ram hit an iron rod on his head. Therefore, he has described the assault precisely as discussed above where his evidence is mentioned. Though the motive for the crime seems to be very weak that the victims were not happy with Sharda because of the kind of people who visit her home but in cases of direct evidence motive is generally immaterial. PW4 has been duly cross-examined on behalf of accused. There is an inherent consistency in the evidence of the complainant. He has given a consistent account of the incident in his complaint Ex.PW4/A, in his evidence as PW-4 and during his cross- examination. There is nothing in his cross-examination to impeach his credit or to suggest that he is not a reliable witness or has not witnessed the incident or has not spoken the truth. There is nothing in his cross-
FIR No. 233/2013 State vs Rahul & others Page No. 20/45examination to impeach his evidence in the court or to discredit his evidence. The defence has not produced any proof/material that what can be the reason for complainant for false implication of accused except a bald assertion of enmity of accused and the deceased, in his statement under section 313 CrPC. PW-4 has clearly deposed about the assault and the manner in which it was done by the accused.
31. PW-5 Pappu has further corroborated the oral evidence of complainant Munesh. He is also an eyewitness and himself injured in that incident. He received simple injuries and but no concrete medical evidence regarding thus has come on record. His evidence bespoke with clarity that what happened on that day and what brought death to Ram Mahesh. There is nothing in the cross-examination of this witnesses also to show in any manner that whatever he spoke in court has even an atom of falsehood. His evidence is consistent with Munesh. He also deposed that the accused Rahul had an iron griddle with which he hit on the head of his brother Ram Mahesh. Daulat Ram assaulted him, his wife and Munesh with lathi. Rambir hit his nephew's head with an iron rod.
32. Similarly, PW-10 Reena also corroborated the evidence of both the above said witnesses. According to her evidence the accused Rahul had a griddle in his hand. It was accused Rahul who hit on the head of Ram Mahesh with that griddle. Rambir, Daulat Ram and Rajpat attacked Munesh with whatever weapons they had in their hand. She also deposed that all these accused assaulted these eye witnesses.
FIR No. 233/2013 State vs Rahul & others Page No. 21/4533. These witnesses identified all the accused in the court as the assailants and also identified the exhibits which were the weapons of offence, the iron rod Ex.P-1 and the iron griddle as Ex.P-2.
34. The testimonies of the complainant Munesh, Pappu and Reena are the backbone of the case of the prosecution. Their evidences inspire confidence and there is nothing in them to create any doubt or suspicion on their probative value. One important aspect of the cross- examination of these witnesses is that the defence did not have much opportunity to contradict or controvert their evidence with any previous statements, showing an inherent strength and consistency in what they said. In criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Consistency is the keyword. There must be a string that should join the evidence of all witnesses and thereby satisfying the test of consistency in evidence amongst all witnesses. And it happened here.
35. The evidence of the complainant is further corroborated by medical evidences. Deceased Ram Mahesh was taken to DDU Hospital where he was medically treated till 25.07.2013 when he died. Thereafter, his autopsy was conducted by PW13, Dr. Komal Singh. According to post mortem report the cause of death was head injury caused by a forceful blunt object which was sufficient to cause death in the ordinary course of nature. This doctor also saw the griddle and the iron rod which was alleged to have been used in this assault and opined that the injury no.1 and 2 was possible with a griddle and the iron rod shown to her. Therefore, the medical evidence related to the FIR No. 233/2013 State vs Rahul & others Page No. 22/45 injury of Ram Mahesh is commensurate with the oral evidence of the aforesaid three eyewitnesses. There is no mismatch or variations in the oral evidence and the medical evidence.
36. The witness Munesh also sustained a head injury and a fracture in his finger in that incident which he alleged was inflicted by the accused. As per the medical evidence with respect to the injury of Munesh, PW-14 Dr. Adhikari has proved that he was brought in the casualty with the history of physical assault. According to MLC of Munesh Ex.PW14/A, he sustained a CLW approx. 3.5cm x .03cm x . 1cm over pareto occipital region of head apart from other injuries. He also had CLW of approx. 3cm x .2cm x .1cm over medias aspect of little finger. It was this injury which the doctor opinioned as grievous. This again is commensurate with his oral evidence that he sustained injury on his head and one of his fingers was ripped apart. There is no mismatch or variations in the oral evidence and the medical evidence.
37. This discussion proves that the evidences produced by the prosecution indicates that the accused have beaten and assaulted the victims of this case causing death to Ram Mahesh and injuries to others.
38. Coming now to the defences raised by the accused.
39. The first argument is related to the improvements and the contradictions in the testimony of the witnesses. It has been argued that FIR No. 233/2013 State vs Rahul & others Page No. 23/45 the complainant Munesh has been shown an eye-witness by the prosecution but his testimony is marred by improvements and contradictions. In his complaint, he has mentioned that he and his family members went to the house of Sharda to talk to her whereas in his evidence in the court he stated that the accused Rambir sent someone to their house and asked them to come for the compromise. This is a clear improvement from the complaint. It is further pointed out that in the complaint it is stated that before the assault they reached near the house of Sharda whereas in the evidence he stated that they reached outside the house of Rambir. It is further argued that all the three witnesses have described the assault in different manner and therefore these witnesses should not be believed. It is further argued that it was these eye witnesses and deceased who came to the house of Sharda and therefore it was not Sharda who went to fight with them. It is further argued that there are contradictions in the testimonies of these witnesses, for example, Munesh has not said that Sharda Devi exhorted "isko jaan se maar do" whereas Pappu says so and so on.
40. This may be true to some extent that every witness has described the incident in their own way but that is not unnatural. Regarding the assault on the deceased is concerned, it is clear that it was the accused Rahul whose attack on him was the cause of his death and this is clear from the testimony of all the three eye witnesses. Further, there is no major contradictions as to how the complainant Munesh was assaulted or that Sharda used the brick to hit the face of Reena. The description of the assault is not exactly same in the evidence of all these eye witnesses but is also not contradictory to the extent that it cannot be FIR No. 233/2013 State vs Rahul & others Page No. 24/45 believed. Only the witnesses who depose by rote can give the same testimony otherwise, there are bound to be differences.
41. In Rammi alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 256, Hon'ble Supreme Court observed that when eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
42. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court stated the legal position that the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But it cannot obviously disbelieve the substratum of the prosecution case or the FIR No. 233/2013 State vs Rahul & others Page No. 25/45 material parts of the evidence and reconstruct a story of its own out of the rest.
43. Further, in case of State v. Saravanan, AIR 2009 SC 152, it was held that the court can overlook minor discrepancies on trivial matters which do not affect the core of the prosecution case. In State of U.P. v. Krishna Master, AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that it is the duty of the court to separate falsehood from the truth, in sifting the evidence. At the same time, the eye-witness testimony must be credible and reliable. It should not be contradicted by other eyewitnesses or by the medical and forensic evidence, if any.
44. In Narayan Chetanram Chaudhary & Anr. vs. State of Maharashtra reported in AIR 2000 SC 3352, Hon'ble Supreme court reiterated the law laid down in its previous judgements and observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye- witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There FIR No. 233/2013 State vs Rahul & others Page No. 26/45 cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not failing within a set pattern is unproductive and a pedantic exercise.
45. Hon'ble Supreme Court in State of Himachal Pradesh v. Lekh Raj & Anr., 1999 (9) Supreme Today 155, dealing with discrepancies, contradictions and omissions held that discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. Mere congruity or consistency is not the sole test of truth in the depositions. In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
46. Again, recently in Bhagchandra vs State of Madhya Pradesh, 2021 SCC Online SC 1209, Hon'ble Supreme Court upheld the FIR No. 233/2013 State vs Rahul & others Page No. 27/45 conviction of the appellant in a murder case based on the testimonies of eye witnesses who were close relatives of the deceased like wife. While referring to other authorities on this issue, observed that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
FIR No. 233/2013 State vs Rahul & others Page No. 28/45In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not un-often that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, the court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case. It could thus be seen that what is required to be considered is whether the evidence of the witness read as a whole appears to have a ring of truth. It has been held that minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, would not ordinarily permit rejection of the evidence as a whole. It has been held that the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. What is important is to see as to whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. It has been held that there are always normal discrepancies due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and FIR No. 233/2013 State vs Rahul & others Page No. 29/45 horror at the time of occurrence. It is the duty of the court to separate falsehood from the truth in every case.
47. Therefore, these differences no doubt are there in this case also but can be ignored if considered on the anvil of the settled law in this regard discussed above, particularly in the judgment of Lekh Raj (Supra) and Rammi @ Rameshwar (Supra) wherein it was observed that no true witness can possibly escape from making some discrepant details. In the present case, all the variations and contradictions referred above are minor in nature and when so many eye witnesses have been examined by the prosecution, some variations in their evidences are bound to occur. The case of the prosecution has to be seen in broad probabilities and not each and every variation in the evidence of different witnesses be accepted as creating a doubt. Incidents like the present one happens quickly and is embedded in the memory of the witnesses in different manner.
48. It was then argued that all the witnesses were related to the deceased and have good reasons to implicate the accused falsely in the present case. No doubt that all the three eye witnesses are the relatives of the deceased. But the answer to this argument lies in the following observation of the Hon'ble Supreme Court of India in S. Sudershan Reddy &Ors vs The State of Andhra Pradesh (2006) 10 SCC 163 wherein it was held that relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. In Dalip Singh and Ors. v.
FIR No. 233/2013 State vs Rahul & others Page No. 30/45The State of Punjab (AIR 1953 SC 364) it has been laid down that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has a cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, then there is a tendency to drag an innocent person against whom a witness has a grudge, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. In Guli Chand and Ors. vs State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar vs State of Madras (AIR 1957 SC 614) was relied upon, it was observed that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance.
49. In Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) Hon'ble Supreme Court observed that it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
FIR No. 233/2013 State vs Rahul & others Page No. 31/4550. The difference between a related witness and an interested witness has been brought out by Hon'ble Supreme Court in State of Rajasthan v. Kalki, (1981) 2 SCC 752. With respect to wife being the witness in that case, it was observed that true, it is, she is the wife of the deceased; but she cannot be called an interested witness. She is related to the deceased. Related is not equivalent to interested. A witness may be called interested only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be interested.
51. In Darya Singh and others vs State of Punjab, 1965 AIR 328, Hon'ble Supreme Court observed that the rule of caution which requires corroboration to evidence of interested witnesses cannot be treated as an inflexible principle which can be mechanically applied to all cases, because in that event if a murder is committed in the house of the victim, it would be difficult to convict the assailant, for in such a case all the witnesses would be relatives of the victim. The evidence of an eye witness who is a near relative of the victim, should be closely scrutinized but no corroboration is necessary for acceptance of his evidence. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In dealing with such evidence, courts naturally begin with FIR No. 233/2013 State vs Rahul & others Page No. 32/45 the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. If the offence has taken place as in the present case, in front of the house of the victim, the fact that on hearing his shouts, his relations rushed out of the house cannot be ruled out as being improbable, and so, the presence of the three eye-witnesses cannot be properly characterised as unlikely. If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.
52. Therefore, it is a settled law that a close relative cannot be characterised as an interested witness. He is a natural witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his 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 witness with the deceased or victim is no ground to reject his 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.
53. The eyewitnesses in the present case have been found to be reliable witness. Their presence at the spot was natural as they were together with the deceased at the time of assault and were also injured FIR No. 233/2013 State vs Rahul & others Page No. 33/45 in the incident. The defence is unable to show any serious animosity of these witnesses with the accused in order to discard their testimony.
54. It has been further argued that despite the availability of large number of independent witnesses at the spot and the onlookers gathered at the time of incident, none of them was made a witness in this case. It has been argued that the investigation of the case is faulty.
55. As far as the issue of independent witnesses is concerned, no doubt that it appears that there were some persons available, who have gathered there during the fight as onlookers but then it cannot be overlooked that the eye witnesses examined are also the members of public. It is the quality of the evidence and not the quantity which proves a fact. It cannot be lost sight of the fact that in world we live today hardly anyone can be found, who would like to spare time for others, particularly to depose in a criminal case. People are afraid of many things, most common among them is the apprehension of their own harm. Making somebody a witness in a criminal case is not that easy and then there are always apprehensions that he may be won over destroying the case of prosecution that is why police may at times avoid basing their case on such witnesses. Further, there is no rule of law that the case cannot be decided or truth cannot be discovered without independent or unrelated witnesses. The quest is to find the truth and there is no particular path to it. Though it is a very convenient argument for defence that the independent witnesses not examined but is not very convincing. The persons gathered there may be mere onlookers. They may not be aware of the facts and witnesses who were acquainted with the facts are nevertheless made witnesses in this case. I only need to reproduce the observations of Hon'ble Supreme Court in FIR No. 233/2013 State vs Rahul & others Page No. 34/45 case titled as Appabhai vs. State of Gujarat, AIR 1988 SC 696 to repel this argument which are that it is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused.
56. Further in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. (2001) 6 SCC 145, Hon'ble Supreme Court held that it is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the FIR No. 233/2013 State vs Rahul & others Page No. 35/45 court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.
57. Lastly it was argued that there was a delay in the registration of the case. The incident was of 20.07.3013 whereas the first information report was registered on 23.07.2013. It has been argued that the delay is deliberate because the complainant wanted time to cook up a false story.
58. It is correct that there was a delay of around three days in the registration of the case. The complaint Ex.PW4/A is not a very long/detailed complaint and could have been easily given to the police at an earlier point of time. But this delay is just one facet of the entire story. And that is why the cases are decided on broad spectrum of entire facts and not on some lacunas which are natural and bound to be FIR No. 233/2013 State vs Rahul & others Page No. 36/45 there in almost all cases. To err is human and this in relation to the conduct of an average human vis-à-vis crime is no exception. The facts of a criminal cases are not meticulously scripted crime fictions, written and proof read for faults and then came out with perfect and precise versions. After the crime, Pappu has made a call to the police and police took the victims to the hospital. It was more a duty of the police to register a case as it was a cognizable offence. Experience shows that the police does not show the required enthusiasm in registering FIRs in all cases. The reasons are various. As is evident from the case that the victims and accused are rustic people and therefore it can be easily understood that they may have refused FIR by the police in the first instance. There is a delay of around three days and it has come in the evidence of PW6 head constable Ashoke and PW7 Lal Chand that when they reached the hospital Munesh and Ram Mahesh were under treatment and they could not give their statement due to pain. Ram Mahesh was not conscious when they reached the hospital. HC inquired from the doctor who told him that the injured were not fit for statement.
59. Hon'ble Supreme Court of India in the case of Madhya Pradesh vs Rattan Singh (2020) 12 SCC 6 has held that the courts generally will not disbelieve the version of the eye witnesses even if there is some delay in lodging the FIR, if the versions of the eye witnesses are reliable and trustworthy. However, the delay needs to be explained. The Hon'ble court, in Apren Joseph v. State of Kerala, (1973) 3 SCC 114, emphasised that since a promptly filed FIR reflects reduced chances of embellishment, fabrication or distortion in memory, in cases of delay in filing the FIR, it is important to assess the explanation therefore, to FIR No. 233/2013 State vs Rahul & others Page No. 37/45 look for possible ulterior motives, and to assess its effect on the credibility of the prosecution version. There is no hard-and-fast rule which can be applied to determine the effect of delay in filing the FIR, and the court is duty-bound to determine whether the explanation afforded is plausible enough based on the given facts and circumstances of each case.
60. In Ram Jag v. State of U.P., (1974) 4 SCC 201, it was observed that witnesses cannot be called upon to explain every hour's delay and a common-sense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.
61. Therefore, the precedents in criminal cases show that there have been cases where days delay have been explained and cases where few hours delay found fatal. It all depends on the case itself. And the cases in which eyewitness are found reliable to believe, there delay takes the backseat and therefore can be ignored in appropriate cases like the present one. Therefore, I do not find the delay to be fatal in this case in seen in the overall facts of the case.
62. About the argument that investigation officer did not join the independent witnesses in this case at the time of arrest of accused and FIR No. 233/2013 State vs Rahul & others Page No. 38/45 seizure of the weapons from them despite availability of them or that no sketch of the griddle was made and its measurements not taken, admittedly, these are lapses but what is to be seen is that even without these evidences, whether the prosecution case is proved or not. If the case is proved beyond reasonable doubt with the evidences led, the absence of the other evidences which were available but not filed, will hardly make a difference. The case is to be considered by the positive evidences led and should not be handicapped by what has been omitted unless it causes prejudice to the accused and questions fair investigation. A lot could have been done by the investigating officer, but that would have made the case of prosecution stronger and not weak. In Dayal Singh & others vs State of Uttranchal 2012 (8) SCC, it was observed by the Hon'ble Supreme Court that merely because there has been some defect in the investigation, it would not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. In the case of Suresh Chand Jana vs State of West Bengal (2017) 16 SCC 466, it was observed by Hon'ble Supreme Court regarding defective investigation and prosecution that the function of a criminal court is to find out the truth. The whole purpose of the trial is to convict the guilty and at the same time to protect the innocent. In this process, court should always be in search of the truth and should come to the conclusion, based on the facts and circumstances of each case, without defeating the very purpose of justice. It is impossible to come across a single case where the investigation was completely flawless or absolutely fool proof. The function of the criminal court is to find out the truth and it is not the correct approach to simply pick up the minor lapses of the investigation FIR No. 233/2013 State vs Rahul & others Page No. 39/45 and acquit the accused, particularly when the ring of truth is undisturbed. It may be mentioned that it is not every doubt but only a reasonable doubt of which benefit can be given to the accused. A doubt of a timid mind which is afraid of logical consequences, cannot be said to be reasonable doubt. The experienced, able and astute defence lawyers do raise doubts and uncertainties in respect of evidence adduced against the accused by marshalling the evidence, but what is to be borne in mind is - whether testimony of the witnesses before the court is natural, truthful in substance or not. The accused is entitled to get benefit of only reasonable doubt, i.e., the doubt which rational thinking man would reasonably, honestly and conscientiously entertain and not the doubt of a vacillating mind that has no moral courage and prefers to take shelter itself in a vain and idle scepticism. The administration of justice has to protect the society and it cannot ignore the victim altogether who has died and cannot cry before it. If the benefits of all kinds of doubts raised on behalf of the accused are accepted, it will result in deflecting the course of justice. The cherished principles of golden thread of proof of reasonable doubt which runs through web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
63. The alleged lapses in investigations are not so overwhelming that the accused can take any advantage of it in this case.
64. Therefore, the above discussion shows that all the facts/circumstances and the evidence led to prove the same indicates towards only one conclusion and that is the guilt of these accused. To finally conclude, an incident of fight occurred on 20.07.2013 between the parties in which one victim Ram Mahesh died and others were FIR No. 233/2013 State vs Rahul & others Page No. 40/45 injured. All the accused are charged under section 304 of the Indian Penal Code read with section 34 IPC for causing the death of Ram Mahesh. Section 304 IPC punishes the offence of culpable homicide not amounting to murder.
65. Culpable homicide is defined under section 299 IPC. It states that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
66. Now in the present case, it is clear that the bodily injuries were present on deceased Ram Mahesh. The deceased had four external injuries mentioned in postmortem report. The cause of death was due to cranio cerebral injury (head injury) subsequent to the forceful blunt injuries imparted directly over the head by the other party and these injuries were sufficient to cause death in ordinary course of nature. The manner of death was homicidal. The evidence and the circumstances do not suggest that the accused intended to cause the death by directly inflicting the death blow assault on the deceased Ram Mahesh but it is clear that the kind of weapon used and the seat of the injury makes it clear that the accused know that the griddle blow can cause an injury which is likely to cause death if inflicted directly on head and it can be easily presumed that he had the knowledge that he is likely by such act to cause death. The nature and number of injuries and their location (the skull) as well as the weapon used (iron griddle)lead to conclude that to a reasonable person an attack of the nature launched by the accused on Ram Mahesh could cause his death. The griddles used by the sweat-makers (halwais) are larger and heavier than the one used in FIR No. 233/2013 State vs Rahul & others Page No. 41/45 ordinary kitchen and has a more potential to cause a life threatening harm. While it is difficult to delve into the mind of the attacker to decode his intentions, knowledge of the consequences of his actions can certainly be attributed to him. The accused had the knowledge that his actions are likely to cause death. He would therefore be guilty of culpable homicide not amounting to murder. The defence has not come clearly that it was accidental or unintentional, or that some other kind of injury was intended.
67. It has been argued by the defence that this is the case of single / solitary blow which shows that the accused did not had the intention or the knowledge that Ram Mahesh will die in that fight. It appears that it was not a solitary blow as the deceased had four external injuries out of which two were on the head, which shows that at least two blows were inflicted on his head. Even for solitary blows, there are no thumb rules like this, it will depend upon the facts and circumstances of each case.
68. In Raman vs State of Kerela 2015 Cr.LJ 2989 (Ker) DB, the accused had suspicion about the chastity of his wife, inflicted injuries by sticks causing her death. It was not discernible that the injuries were inflicted with an intention to cause death of the victim or to cause such bodily in injury that it was likely to cause the death of the victim. However, it was clear that the acts done by the accused with the knowledge that it was likely to cause to cause death. The conviction of the accused under section 302 IPC was altered to one under section 304 Part II IPC.
69. Therefore, on the basis of aforesaid discussion it is clear that the accused can be safely convicted under section 304 Part-II IPC. But the FIR No. 233/2013 State vs Rahul & others Page No. 42/45 issue of importance is whether all of them are guilty of this offence or not.
70. All the accused are also charged with section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the common intention to commit the offence. The phrase common intention implies a pre-arranged plan and acting in concert pursuant to the plan. The common intention must be there prior to the commission of the offence in point of time and it can also develop at the spot.
71. In Girija Shankar v. State of U.P, (2004) 3 SCC 793, it is observed that section 34 has been enacted to elucidate the principle of joint liability of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.
72. The victims of the case went to the house of Sharda. It was not that the accused came to the house of the victims. Therefore it's clear that it were the victims who probably started it and invited trouble for them. The version of the complainant that they were called for compromise is not reliable as its not there in this complaint. It was a FIR No. 233/2013 State vs Rahul & others Page No. 43/45 free fight between the parties. Even the accused did not had the intention to cause the death of Ram Mahesh. The accused acted in different manner in the assault and not in the concerted manner. Now in the present case it has not been proved that all the five accused shared common intention as required under section 34 of the IPC or were confederates of each other in the commission of this crime. Therefore, each one is liable only for his own act and not for the acts of others and cannot be convicted with the aid of this section for all offences for which the charge was framed.
73. It has been the consistent case of the prosecution that it was accused Rahul, who hit the griddle (karcha/palta) on the head of the deceased Ram Mahesh. No other accused is stated to have assaulted Ramesh Mahesh. Therefore, since it was Rahul who inflicted the mortal injury on Ram Mahesh, he shall be liable for his death and for commission of offence of culpable homicide not amounting to murder punishable under section 304 (Part II) IPC.
74. The second charge is 325 IPC for causing grievous hurt to complainant Munesh. The grievous injury was in his hand. It was accused Rambir who hit the iron rod on his head. Accused Daulat Ram hit him with lathi. Munesh sustained injuries on his head and other parts of the body including his finger and accused Daulat Ram and Rambir were responsible for it. It appears that the grievous injury was caused by Daulat Ram. They both can be convicted for the offence under section 325 IPC with the aid of section 34 IPC. Munesh has not assigned any role in the assault on Sharda and Rajpat in his evidence.
75. Regarding the offence under section 323 IPC for causing injury to Pappu and Reena, it is clear that there is no supporting document to FIR No. 233/2013 State vs Rahul & others Page No. 44/45 prove that they were injured in the incident. Merely on the basis of their oral statement, it will not be safe to convict any accused for allegedly causing injury to them. When the complainant and his father was immediately taken to the hospital, there was no reason that Pappu and Reena were not given any medical treatment. The allegation against the accused Sharda of hitting the face of Reena by a brick is not proved and therefore she can be given the benefit of doubt and for similar reasons the other accused of this case are also given benefit of doubt.
76. Therefore, in the facts and circumstances of the case and on the basis of aforesaid discussion the accused Rahul is convicted under section 304 (Part II) IPC. The accused Rambir and Daulat Ram are convicted under section 325/34 IPC. Rest of the accused Sharda and Rajpat are acquitted from the present case.
77. List the matter for arguments on sentence.
Digitally signed by SAMAR SAMAR VISHAL
Pronounced in the open VISHAL Date:
2022.06.10
17:20:18 -0400
Court on 10.06.2022 (Samar Vishal)
Additional Sessions Judge -08
(West) Tis Hazari Courts Delhi
FIR No. 233/2013
State vs Rahul & others Page No. 45/45