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Delhi District Court

State vs . Pooja on 28 July, 2020

         IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
          JUDGE­02 (EAST) KARKARDOOMA COURTS, DELHI
                                                           SC No.605/16
                                                          FIR No.569/14
                                                            U/s 302 IPC
                                                          PS Preet Vihar

State          Vs.       Pooja
                         W/o Mithun
                         R/o E­40/63, Radhu Palace Jhuggi,
                         Preet Vihar, Delhi

        Date of instutuion     17.12.2014
        Arguments heard        29.06.2020
        Date of order          28.07.2020

JUDGMENT

PROSECUTION CASE:­

1. Brief facts as per prosecution case are as under:­

(a) That on 11.09.14 at about 21.45 pm a call was received at the police control room about a quarrel between husband and wife in a Jhuggi situated at Radhu Palace, infront of Masjid. At about 10 pm, Ct. Sanjeev 8983/PCR passed on this information to the police station Preet Vihar and this information was noted down vide DD No.33A on Dt 11.09.14. This DD was assigned to ASI Suresh Chand (the first IO) over telephone who visited the spot alongwith Ct. Bhom Singh and came to know that a quarrel had taken place in the Jhuggi No.E­40/63, Jhuggi Radhu Palace. The injured persons had already been taken to LBS Hosptal by the PCR van. Beat Ct. Virender also FIR No.569/14 State vs Pooja 1 of 73 reached at the spot. Lot of blood was lying scattered on the floor of the jhuggi. ASI Suresh Chand deputed Ct. Virender to gaurd the spot and he alongwith Ct. Bhom Singh went to LBS Hospital. There ASI Suresh Chand collected the MLC of Asif @ Asgar S/o: Akhtar Ali R/o Jhuggi Radhu Palace and Pooja (accused) W/o Asif. On the both the MLC it was mentioned by the doctor that there was alleged history of assault. On the MLC (MLC no.16004/14) of Asif @ Asgar the doctor concerned had mentioned that he has suffered seven penetrating wounds on his abdomen. No witness was found present either in the hospital or at the spot. The injured Asif was in operation theatre and was not in a position to give statement. Keeping in view of the injuries mentioned on the MLC of injured Asif, a case u/s 307 IPC was got registered by ASI Suresh Chand by preparing a tehrir on the DD no. 33A.

(b) After registration of case, the investigation was handed over to SI Kishanveer Bhati (the second IO). During investigation, IO prepared the site plan of the spot at the instance of Inderdev S/o Chater Singh R/o: E­40/55, Radhu Palace, Preet Vihar, Delhi. IO also took the samples of the blood stained earth and earth control from the Jhuggi No:E­40/63, Radhu Palace (the premises where incident took place/spot). IO also seized a blood stained iron rod from the spot and recorded statement of witnesses. On 14.09.14, an information was received from LBS Hospital that injured Asif has expired during treatment, as such, Sec 302 IPC was invoked. Thereafter, further FIR No.569/14 State vs Pooja 2 of 73 investigation was transferred to Inspector Subhash Chandra (the third IO).

(c) Inspector Subhash Chandra got conducted the Post Mortem of the deceased through SI Kishanveer Bhati in the LBS Hospital. After Post Mortem, the doctor concerned handed over two pullandas containing viscera and blood sample of deceased alongwith sample seal which were taken into possession and seized by SI Kishanveer Bhati and later on, he deposited the same in the malkhana. Accused Pooja had gone to LBS hospital for her medical treatment and there outside the hospital IO met her and IO brought her to the police station through W/Ct. Reena. In the PS, after interrogation, IO arrested accused Pooja in the present case and prepared the documents regarding her arrest. The disclosure statement of the accused was also recorded and thereafter, she was produced before the court from where she was sent to judicial custody.

(d) Thereafter, IO got prepared the scaled site plan of the spot. IO got deposited the exhibits with the FSL Rohini for obtaining expert opinion. Pending FSL result, IO submitted the charge sheet against the accused u/s 302 IPC. After obtaining the FSL result a supplementary charge sheet was filed.

(e) After compliance of the provsions of sec 207 CrPC, the charge sheet was committed to the Sessions Court.

2. Vide order dt. 10.11.2016, a charge U/s 302 IPC was framed against the accused to which she pleaded not guilty and claimed trial.

     FIR No.569/14                  State vs Pooja           3 of 73
  FACT IN ISSUE:­

3. Point which emerged for determination in this case is:­ Whether on 11.09.14, between 9 to 10 pm, during a quarrel, which took place between the accused and deceased inside jhuggi no.E­40/63, Jhuggi Radhu Palace, the accused assaulted her husband/deceased with an iron rod (the iron rod which is used for roasting food) and inflicted seven injuries on his abdomen, and whether during treatment husband of accused succumbed to these injuries and died in the LBS hospital on 14.09.14.

PROSECUTION EVIDENCE:­

4. In order to establish accusations against the accused, the prosecution has examined 18 witnesses. For the purpose discussion, the witnesses have been classified into the following categories:­ MATERIAL WITNESSES:­ PW1 Ms. Kavita is the resident of the same locality. She deposed that since her childhood, she has been residing at Jhuggi No.225, Radhu Palace, Near DESU Office and she is doing the work of a maid servant. She stated that Asif (deceased) and Pooja/accused had shifted to their colony about 2­4 months prior to September, 2014. On 11.09.14, at about 9­10 pm, she had gone to take her children from the house of her sister Hulasi whose Jhuggi is situated in front of the jhuggi of accused. The door of the jhuggi of the accused was closed and she heard noise of quarrel which was coming from the jhuggi of accused. She called accused and her husband but none opened the door of the jhuggi. In the meantime, some other persons of the locality FIR No.569/14 State vs Pooja 4 of 73 also gathered at the spot. Inderdev, the owner of the jhuggi also reached there and after calling accused and her husband several times, accused opened the door of the jhuggi. They saw that Asif was lying on the floor and was bleeding. Accused was also bleeding and she was in injured condition. PW1 made a call at 100 number through the mobile phone of her sister Hulasi. PCR came at the spot and thereafter, police took Pooja (accused) and Asif to LBS Hospital. She stated that next day her statement was recorded by the IO.

PW2 Ms. Asha was residing in the jhuggi adjacent to the jhuggi of accused. She stated that she has been residing in Jhuggi no.62, Radhu Palace, Near DESU Office for last 20­25 years and working as maid servant. She stated that accused was residing in the adjacent jhuggi alongwith her husband/deceased. She stated that she doesn't remember the month or year, however, on the 11th day of a month, at about 9­10 pm, she was lying in her jhuggi with her children. Suddenly, she heard noise of quarrel between accused and her husband. She came out and saw that many persons of the locality had gathered in the lane. Ms. Kavita (PW1) who is residing in the neighbourhood made a call to police. Police came at the spot and she saw that accused and her husband were bleeding and they were in injured condition and they were taken to the hospital by the police. Since PW2 did not depose as per her previous statement, thus, she was cross examined by Ld. Addl. P.P. and during her cross examination, she admitted the suggestions which were put to her in regard to certain other facts of the case. She admitted that police made inquiries from her and her statement was FIR No.569/14 State vs Pooja 5 of 73 recorded by the police. She also admitted that at the time when she came out of her jhuggi and heard the noise of quarrel from the jhuggi of the accused, the door of the jhuggi of the accused was lying closed. She stated that she doesn't remember if the persons of the locality called accused and Asif and despite that none of them opened the door of their jhuggi. She stated that she also doesn't remember that after the landlord Inder Dev came at the spot, again the names of accused and Asif were called out upon which accused Pooja opened the door of her jhuggi. She voluntarily stated that when she came out, the door of the jhuggi was already open. She deposed that she had not stated to the police that she saw Asif (deceased) lying on the floor of the jhuggi in injured condition and bleeding from his abdomen. She admitted that incident had taken place on 11.09.14. The portion from point A to A of her statement u/s 161 Cr.P.C. (Mark X) which is regarding the fact that the door of Jhuggi was opened by the accused in her presence, was read over to this witness, however, she denied to have made such a statement to the police.

PW3 Inder Dev Singh is another witnesses who at the time of incident was residing in the neighbourhood of the jhuggi of the accused. PW3 deposed that he is the resident of Jhuggi no.40/55, Radhu Palace. He stated that in the year 2014, Asif and his wife/accused were residing in his neighbourhood in the jhuggi no.40/63. On 12.09.14, at about 10 pm, one boy came to his house and informed him that sound of shrieks are coming from the jhuggi of Asif. He came out of his house and went to the jhuggi of Asif and knocked the door of his jhuggi, however the FIR No.569/14 State vs Pooja 6 of 73 door was closed from inside. He stated that some sounds were coming from the jhuggi. On his repeated knocking, Pooja (accused) opened the door from inside and he saw that she was bleeding from her head. They entered the jhuggi and saw that Asif was lying on the floor of the jhuggi and he was bleeding from his abdomen. In the meantime police also reached there and they took Asif and Pooja/accused to the hospital in their vehicle. Same day police called him in the police station and made inquiries from him. PW3 also correctly identified the accused.

PW5 Ashraf is the real brother of deceased Asif. PW5 deposed that in the year 2014, he was residing with his family in the house of Muzib at House no.251, Chopal Khureji, Delhi, on rent. He stated that he permanently resides at Mohalla Quazi, Khel Kasba, Siana, Near Jama Masjid, Bulland Shahar, U.P. He stated that since the year 2013, his brother Asif @Asgar was residing with one lady Pooja at Radhu Palace Jhuggis against the consent of his parents. About one and half month prior to his death, his brother had told him that he wanted to come home but Pooja was not allowing him to go to there due which he was puzzled. In the morning of 12.09.14, when he was present at Loni, his landlord Muzeeb telephonically informed him that a quarrel had taken place between Pooja and his brother and his brother was admitted in ICU at LBS Hospital. He went to hospital and found his brother Asif admitted there and he was not in a position to talk, therefore, he could not talk to him. On 14.09.14, his brother passed away in the hospital. He identified the dead body of his brother and FIR No.569/14 State vs Pooja 7 of 73 received his dead body. He stated that he suspects that Pooja has committed murder of his brother Asif as his brother wanted to come home and she did not allow him to go to his home.

PW6 Aslam is the cousin of deceased Asif. He deposed that he has been residing at Mohalla Qazi, Khel Kasba, Sayana, Near Jama Masjid, Dist. Bullandshahar, U.P. with his family. Asif @ Asgar was his cousin who was residing at Khureji with his family members on rent since 2013­14. He came to know that Asif had left his home against the consent of his parents/family members and since 2013, he was residing with one lady namely Pooja at Jhuggi Radhu Palace, Delhi. He is a helper on a bus which is plied from Bhajanpura to Noida and on 13.09.14, he was present at Bhajanpura and came to know from his cousin Asraf that Asif was admitted in LBS Hospital. On 15.09.14, he had gone to hospital and identified the dead body of Asif. He denied that Asif had told him that he was puzzled as Pooja was not allowing him to go to his home, however, he stated that he was sure that Pooja has committed murder of Asif as he wanted to come to his home but she did not allow him to go there.

MEDICAL & SCIENTIFIC EVIDENCE:­ PW7 Dr. Vinay Kumar Singh is the doctor concerned who had conducted the post mortem of the deceased Asif. He brought on record the PM report as Ex PW7/A. PW7 deposed that on external examination he found the following injuries on the body of deceased Asif:­ FIR No.569/14 State vs Pooja 8 of 73

i) Penetrating wound "stab" present over right lumber region of abdomen size 1.7x0.9 cm, cavity deep stitched, margins irregular, 9.5 cm from right side of the umbilicus, 96 cm above from the right heel.

(ii) Penetrating wound "stab" present over umblical region of abdomen size 1.3x1 cm, cavity deep stitched, margins irregular, 4 cm from right side of the umbilicus, 98 cm above the right heel.

iii)Penetrating wound "stab" present over umblical region of abdomen size 1.4x1 cm, cavity deep stitched, margins irregular, 2 cm from left side of the umbilicus, 97 cm above the right heel.

iv) Penetrating wound "stab" present over umblical region of abdomen seize 1x.0.6 cm, cavity deep stitched, margins irregular, 4.5 cm left side of the umbilicus, 98 cm above the right heel.

v)Penetrating wound "stab" present over umblical region of abdomen size 1x0.5 cm, cavity deep stitched, margins irregular, 1 cm from left side of the umbilicus, 99 cm above the right heel.

vi)Penetrating wound "stab" present over left lumber region of abdomen size 1.6x0.8 cm, cavity deep stitched, margins irregular, 10 cm from left side of the umbilicus 100 cm above the left heel. Vii) Lacerated wound of size 0.5x0.4 cm present over umbilical region of abdomen 1.5 cm from the right side of umblicus, 98 cm above right heel.

Viii) Bruise present over right elbow joint posterior aspect of size 13x4.5 cm.

PW7 deposed that all injuries were antemortem in nature. He opined that injuries no.(i) to (vi), individually and collectively, are sufficient to cause death in the ordinary course of nature. PW7 also opined that as per postmortem report and viscera report, the cause of death in this case is due to Hemorrhagic Shock consequent upon stab injuries mentioned in the postmortem.

FIR No.569/14 State vs Pooja 9 of 73 PW8 Ms. Ruby Kumari had conducted the medical examination of deceased when he was brought to the hospital after incident. She deposed that on 11.09.2014, she had conducted medical examination of Asif @ Asgar s/o Akhtar Ali, 25 years, male, who was brought to the hospital with the alleged history of assault. On examination, she found 7 penetrating wounds on the abdomen i.e. one wound in epegastric region, one subrapubicl area and five in hypogastric and lumber region. She deposed that entry wound was about ½ x ½ cm with cruciate shape and fresh bleeding was present. After examination, she referred the patient Asif to SR Surgery for further opinion and management. She prepared the MLC of Asif which she brought on record as Ex PW 8/A. MEMBERS OF CRIME TEAM:­ PW18: Ct. Vikas is the photographer and at the relevant time, he was posted in Mobile Crime Team, East District, Delhi. He deposed that on 15.09.2014, on receipt of a call, he alongwith Incharge crime team, had gone to the spot i.e. E­40/63 Jhuggi Radhu Palace where IO SI Kishanvir alongwith staff met him. On the directions of IO, he had taken five photographs of the scene of crime and after developing the photographs, the same were collected by the IO. The said photographs were brought on record by PW18 as Ex.PW18/A1 to Ex.PW18/A5 and their negatives as Ex.PW18/A6 to Ex.PW18/A10. PW18 had taken five photographs of the spot, however, IO had placed on record six photographs and the sixth photographs was given Mark X and about this photograph, PW18 voluntarily deposed that one extra FIR No.569/14 State vs Pooja 10 of 73 photograph Mark 'X' does not pertain to this case and this photograph has been inadvertently developed from the negatives and placed on record.

FORMAL WITNESS:­ PW4 ASI Satpal Singh Rana is the duty officer who recorded the FIR of the present case. PW4 deposed that on 11.09.14, at about 10 pm he received a call from E­58 regarding a quarrel between husband and wife in a Jhuggi, near Masjid in front of Radhu Palace regarding which DD no.33A was recorded in the roznamcha by ASI Raghubar Dayal. PW4 brought on record the DD No.33 A as Ex PW4/C. PW4 also deposed that on 12.09.14, he was on duty in the PS Preet Vihar from 12 midnight to 8 am and on that day at about 12.50 am, Ct. Bhoom Singh handed over a rukka sent by ASI Suresh Chand and accordingly, he registered the FIR u/s 307 IPC. He brought on record the copy of FIR as Ex PW4/A and his endorsement on the rukka as Ex PW4/B. PW9 ASI Sonu Kaushik had prepared the scaled site plan. PW9 deposed that 04.10.2014, he was posted at Drafts Man Section Crime Branch and on that day he was called by the Inspector Subhash Chand. He reached PS Preet Vihar and from there, he along with Inspector Subhash Chand and SI Krishanvir Bhati went to Jhuggi of Asif @ Asgar, Jhuggi No.E40/63, Radhu Palace, Delhi and there at the instance of SI Krishanvir Bhati, he took measurements and prepared draft notes and on the basis of same, he had prepared FIR No.569/14 State vs Pooja 11 of 73 scaled site plan in his office. He brought on record the scaled site plan Ex.PW9/A. PW16 HC Harender Singh is the MHCM. PW16 deposed that on dated 14.09.2014, he made entries at Sl.No.2157/14 in register no.19 regarding the receipt of three pullandas which were deposited by SI Krishanveer Bhati in present case. He brought on record the relevant entry as Ex.PW16/A. PW16 further deposed that on dated 15.09.2014, he received one pullanda (wooden box) and two sample seals sealed with the seal of Hospital from SI Krishanveer Bhati and he made an entry at Sl. No.2167/14. Copy of this entry is exhibited as Ex.PW16/B. PW16 further deposed that on dated 17.09.2014, Insp. Subhash deposited the personal search articles of accused Pooja regarding which he made an entry at sl. no.2170/14. PW16 brought on record the copy of the said entries as Ex.PW16/A to Ex.PW16/C. PW 16 stated that on 26.09.2014 vide RC 98/21/14, he handed over four pullandas to Ct. Manoj for depositing the same with FSL Rohini, however as per Ex PW16/A, these pullandas were deposited back with MHCM. On 31.10.2014 vide RC 113/21/14, PW16 again handed over four pullandas to Ct. Ghasi Ram for depositing with FSL Rohini. On 08.05.2017, PW16 received the FSL report with four parcels. PW16 has brought on record the copy of the first road certificate i.e. RC no.98/21/14 as Ex.PW16/D1 and copy of another road certificate ie. RC no.113/21/14 as Ex.PW16/D2. Vide Ex PW16/D2, PW16 had got deposited, the pullandas containing iron road, viscera of deceased, blood gauze of deceased, blood stained earth.

FIR No.569/14 State vs Pooja 12 of 73 MEMBERS OF INVESTIGATING TEAM:­ PW10 Ct. Bhom Singh had visited the spot alongwith first IO ASI Suresh Chand, after the first IO was assigned the DD no.33A. PW10 deposed that on dt. 11.09.2014, at about 10 pm a call regarding quarrel between husband and wife at Jhuggi No.E40/63, in front of Radhu Palace was received and this call was noted down vide DD No.33A and was marked to ASI Suresh Chand for necessary action. He along with ASI Suresh Chand went to Jhuggi No.E40/63, in front of Radhu Palace, where they came to know that the injured have been taken to LBS Hospital by PCR Van. Beat Ct. Virender had also reached the spot and he was joined in the proceedings and he was directed by ASI Suresh Chand to remain at the spot. Thereafter, he along with ASI Suresh Chand went to LBS Hospital where no eye witness was available and injured Asif @ Asgar and accused Pooja were found admitted in the hospital. In the hospital, IO prepared rukka and and it was handed over to him and he took the same to PS Preet Vihar and handed over the same to Duty Officer concerned who got the case registered. Thereafter, copy of FIR and original tehrir was handed over to him, which he handed over to SI Kishanveer Bhati to whom the further investigation of the case was marked. He alongwith SI Kishanveer Bhati reached the spot where SI Kishanveer Bhati lifted blood stained earth from the floor of the said jhuggi after breaking the same with the help of hammer and chheni and same was kept in a plastic vial. IO had also lifted earth control from there and the same was also kept in a plastic vial. Both the plastic vials were converted FIR No.569/14 State vs Pooja 13 of 73 into parcels after applying tape upon them and same were sealed with the seal of KVB and taken into possession vide seizure memo Ex.PW10/A. One iron rod having blood stains on it, was lying inside the said jhuggi. The iron rod was lifted by the IO from there and same was kept in the cloth parcel and this parcel was sealed with the seal of KVB and then it was taken into possession vide seizure memo Ex.PW10/B. After completion of the said proceedings, he along with the IO came back to PS. His statement was recorded by the IO. On 02.04.18, when PW10 was examined, the exhibits pertaining to this case, which were seized in the presence of this witness and were to be shown to this witness for the purpose of identification, could not be shown to him as by that time FSL result in regard to these exhibits was not filed by the IO and thus, the further evidence of this witness was deferred. PW10 was further examined on 15.12.18 and his was shown the exhibits seized in his presence. He was shown the iron rod which was seized vide seizure memo Ex.PW10/B and kept in the pullanda sealed with the seal of Court and bearing particulars of the case. PW10 correctly identified the iron rod which was seized in his presence. By the time this witness was further examined, the iron rod was already shown to another witness and brought on record as Ex. P1, thus, during the evidence of this witeness, the iron rod was given same identification number i.e. Ex.P1. This witness was also shown two plastic dibbis (small plastic boxes) having seal of FSL Dr. RS Delhi and containing the concrete material which was taken by the IO FIR No.569/14 State vs Pooja 14 of 73 from the spot. PW10 also correctly identified these plastic boxes thus, same were brought on record by this witness vide Ex.PX­1 and PX­2.

PW11 ASI Tek Ram had joined investigation on 15.09.14. On 15.09.14, he along with SI Kishanveer Bhati had gone to LBS Hospital where postmortem of the dead body of deceased Asif was got conducted. After postmortem, the doctor concerned had handed over one envelope (sealed with the seal of LBSH DFMT) containing blood sample and one wooden box containing viscera of deceased Asif having the same seal and two sample seals which were taken into possession by SI Kishanveer Bhati vide seizure memo Ex.PW11/A. The dead body of the deceased was handed over to Ashraf, the brother of the deceased vide receipt Ex.PW5/B. SI Kishanveer Bhati deposited these exhibits in the malkhana and handed over the case file to the IO Inspector Subhash Chand who recorded his statement.

PW12 W/CT Reema had joined investigation on 17.09.2014. She deposed that on 17.09.14, she had joined the investigation alongwith IO Insp. Subhash Chand and she had gone to LBS Hospital. Outside the LBS hospital, Pooja @ Usha w/o Mithun met them and IO interrogated her and thereafter, she was brought to PS. In the PS, IO had interrogated the accused in detail and thereafter, she was arrested vide her arrest memo Ex.PW12/A. She conducted her personal search in which Rs.400/­ cash was recovered. IO prepared the personal search memo Ex.PW12/B. IO also recorded the disclosure statement of the accused Ex.PW12/C. Thereafter, accused FIR No.569/14 State vs Pooja 15 of 73 was got medically examined and then, she was produced before the Ld. Court concerned from where she was sent to JC.

PW13 ASI Suresh Chand is the first IO of the case to whom DD No.33 A was assigned and who had firstly visited the spot along with Ct. Bhom. He deposed that on 11.09.2014, the DD no.33­A Ex.PW4/C was marked to him for necessary action and he along with Ct. Bhom Singh went to the Jhuggi No.E­40/63 Radhu Palace near Masjid where on enquiry, he came to know that a quarrel had taken place between husband and wife and both of them had already been taken to LBS Hospital by PCR Van. In the meantime, Beat Constable Virender came there who was also joined in the investigation and he was directed by PW13 to remain at the spot. He alongwith Ct. Bhom Singh reached LBS Hospital where Asif @ Asgar alongwith his wife Pooja @ Usha were found admitted in injured condition. He obtained the MLCs of Asif @ Asgar and Pooja @ Usha. Injured Asif @ Asgar was not fit for statement. He informed about all the facts to the SHO telephonically. Thereafter, he made endorsement on DD no.33­A Ex.PW13/A prepared a rukka and handed over to Ct. Bhom Singh for the registration of the case, who left the hospital alongwith rukka and got the case registered. After registration of the case, further investigation was marked to SI Kishanveer Bhati.

PW14 SI Kishanveer is the second IO of the case, who conducted the investigation after registration of FIR. He deposed that on 12.09.2014, he was present in the PS and Ct. Bhom Singh contacted him and handed over copy of FIR along with original tehrir and he was FIR No.569/14 State vs Pooja 16 of 73 informed that further investigation of the case was marked to him. He along with Ct. Bhom Singh reached the spot i.e. Jhugi no. E­40/63, Radhu Palace, Delhi where Ct. Virender was already present. He went inside the said jhuggi and noticed that blood was lying scattered on the floor of the jhuggi and one blood stained iron rod was also lying there. He called crime team at the spot and incharge of crime team along with photographer reached there and inspected the scene of crime. The photographer had taken photographs of the spot. He had lifted the blood sample i.e. blood stained earth after breaking the blood stained floor with the help of hammer and chheni and kept the same in plastic vial. He further lifted earth control after breaking the floor by hammer and chheni and it was also kept in a plastic vial. Surgical tape was applied on both the plastic vials and pullandas were prepared and they were sealed with the seal of KVB. These parcels were given Mark A and B and same were taken into possession vide seizure memo Ex.PW10/A. He further lifted a sharp pointed iron rod from inside the jhuggi/spot which was kept in a cloth and same was converted into a pullanda and it was also sealed with the seal of KVB and taken into possession vide seizure memo Ex.PW10/B. One Inderdev, owner of Jhuggi was also present there and at his instance, IO prepared the site plan Ex.PW14/A. After use, IO handed over the seal to Ct. Bhom Singh. Thereafter, he reached LBS Hospital along with Ct. Bhom Singh. On inquiry, he came to know that injured was unconscious and no eye witness was available in the hospital. He again reached the spot and recorded the statement of relevant FIR No.569/14 State vs Pooja 17 of 73 witnesses. Thereafter, he came back to PS and deposited the exhibits in malkhana through MHCM. On 14.09.2014, when he was present in the PS, Duty Constable Pradeep informed the Duty Officer that injured Asif @ Asgar who was admitted in the LBS Hospital has expired on 14.09.2014 at about 1.30 am. This information was noted down vide DD No.31B (Ex.PW14/B) and copy of the same was handed over to him by the Duty Officer. Thereafter, section 302 IPC was added and further investigation was taken over by Inspector Subhash Chandra. He handed over the file to MHCR. On 15.09.2014, he along with Ct. Tek Ram went to LBS Hospital for the postmortem of the deceased Asif @ Asgar. After postmortem, the doctor concerned handed over one wooden box containing viscera of the deceased and it was sealed with the seal of LBSH DFMT. Doctor concerned also handed over one envelope containing blood in gauze of deceased also sealed with seal of LBSH DFMT, along with two sample seals and the same were taken to possession vide seizure memo Ex.PW11/A. The dead body of deceased was handed over to Ashraf, brother of deceased vide receipt Ex.PW5/B. PW14 recorded statement of Ashraf and Aslam regarding identification of dead body of deceased and their statements are Ex.PW5/A and Ex.PW6/A respectively. Then PW14 came back to PS and deposited the exhibits in Malkhana through MHCM. He briefed the IO about the same, who recorded his statement in the PS. On 04.10.2014, draftsman HC Sonu Kaushik was called and then PW14 and draftsman visited the spot where HC Sonu had taken measurements and prepared rough notes of the spot at his instance FIR No.569/14 State vs Pooja 18 of 73 and later on, he prepared the scaled site plan which was collected and placed on record. His further statement was recorded by the IO in this regard. PW14 also deposed that he can identify the iron rod Ex.P1 seized by him from the spot and accordingly, MHCM had produced the pullanda which was bearing seal of the court and bearing particulars of the case and FSL details (FSL­2014/B­8059). On that day, Ld. Defence Counsel did not insist for opening the same as it was already produced and exhibited.

PW15 ASI Virender Singh (then constable) was on patrolling on 11.09.14 and he was also directed to visit the spot. PW15 deposed that at about 10.30 pm, on the intervening night of 11/12.09.14, he was present in the area for patrolling. ASI Suresh Chand met him near Radhu Palace jhuggi and told him that there was a quarrel between husband and wife at Jhuggi No.E­40/63, Radhu Palace and he was joined investigation and then they reached there. He was directed to guard the spot and IO went to LBS Hospital. At about 2.30 am, SI Kishanveer Bhati alongwith Ct. Bhom Singh came at the spot and lifted blood stained earth and earth control from the spot after breaking the floor with the help of hammer and chheni. SI Kishanveer Bhati kept the same in two separate vials and prepared their parcels after applying surgical tape and sealing these parcels with the seal of KVB. IO took these parcels in possession vide seizure memo Ex.PW10/A. IO also lifted from the spot one iron rod (saria) which was pointed from one end and having blood stains on the pointed side. IO prepared a cloth parcel of the same and it was also sealed with the seal of KVB FIR No.569/14 State vs Pooja 19 of 73 and taken into possession by a seizure memo Ex PW10/B. The iron rod seized in this case was produced for the first time during the evidence of PW15. The parcel was bearing Mark A and it was sealed with the seal of FSL Dr. RS DELHI. On opening, this parcel was found containing one iron rod/saria and this iron rod was shown to PW15 and he correctly identified this iron rod to be the same which was taken into possession vide seizure memo Ex.PW10/B and thus the same was brought on record as Ex.P1.

PW17 Insp. Subhash Chandra is another investigating officer of the case, who took over the investigation after demise of injured Asif. PW17 deposed that on 15.09.2014, on receipt of information from LBS Hospital regarding death of deceased, section 302 IPC was added and then investigation was taken over by him. He got conducted the postmortem on the dead body of Asif through SI Krishanveer Bhati and the exhibits collected by him were got deposited in the malkhana. On 17.09.2014, he alongwith W/Ct Reema was present outside LBS Hospital and the accused Pooja was arrested vide arrest memo Ex.PW12/A. Her personal search was conducted by W/Ct Reema and her personal search memo is Ex.PW12/B. He recorded her disclosure statement which is Ex.PW12/C. He produced the accused before the Court concerned from where she was sent to JC. On 31.10.2014, he directed Ct. Ghasi Ram to deposit exhibits of the case at FSL Rohini after collecting the same from MHCM and accordingly, Ct. Ghasi Ram deposited the same vide RC no.113/21/14. He recorded the statements of Ct. Ghasi Ram and MHCM. On 04.10.2014, he FIR No.569/14 State vs Pooja 20 of 73 alongwith the draftsman HC Sonu Kaushik and SI Krishanveer Bhati visited the spot i.e. Jhuggi of Asif @ Asgar no. E­40/63 Radhu Palace, Preet Vihar Delhi where, on his instructions and instructions of SI Kishanveer Bhati, the draftsman Sonu Kaushik took the measurement of the spot and later on, he prepared the scaled site plan Ex.PW9/A. He recorded the statements of relevant PWs and after completion of the investigation, he prepared the charge­sheet and filed the same before the Court. During the course of investigation, photographs of the spot were handed over to him by the photographer of Crime team (East District) which he placed on record alongwith the charge sheet. Later on, he collected the FSL result bearing no.2014/C­8026 dated 21.07.2015 Ex.PW7/B and placed the same on record. The FSL result bearing no. 2014/B­8059 BIO No.899/14 dated 15.09.2016 was also collected and placed on record and the same is Ex.PW17/A colly. PW17 also brought on record the copy of PCR form as Ex.PW17/B. STATEMENT OF ACCUSED:­

5. After examination of aforesaid witnesses, the prosecution evidence was closed and the statement of accused was recorded u/s 313 Cr.P.C. Accused denied all the material allegations made against her and claimed that she has been falsely implicated in this case. Accused stated that she is innocent and has been falsely implicated in this case. She stated that on the date of incident, at about 9 pm, she and Asif reached at Jhuggi and she opened the lock of the door of the jhuggi and after they entered the jhuggi, Asif bolted the door of the jhuggi from inside and started strangulating her neck and caused injury on FIR No.569/14 State vs Pooja 21 of 73 her neck with a knife. She snatched the knife from his hand and threw it. Then Asif went outside the jhuggi and locked her inside the jhuggi. After sometime, Asif came back to Jhuggi with an iron rod and started shouting at her after bolting the door from inside and shouted that 'main tumse bahut pareshan hu' (I am very upset with you) and he started beating her with the said iron rod with intention to kill her. He attacked on her head twice or thrice with the said iron rod and blood oozed out from her head. He also assaulted on her face and chest with the same iron rod. During this, in order to save herself, she tried to pull out the iron rod from the hands of Asif, however, the iron rod slipped off her hands and Asif alongwith the iron rod fell on the floor. She expressed her ignorance and stated she doesn't know as to how he suffered injuries. After suffering injuries, she felt giddiness and became semi­unconscious. Thereafter, police with the help of a girl who was residing in the neighbourhood made them sit in the PCR van and thereafter, police shifted her and Asif to the hospital. She stated that Asif was in the habit of consuming ganja regularly. The accused opted to lead defence evidence and in her defence, she examined following three witnesses including herself.

DEFENCE EVIDENCE:­

6. DW1 ASI Satpal Singh Rana is the duty officer who got recorded the FIR on the basis of rukka which was prepared on the statement of the accused Pooja. DW1 deposed that on 12.09.2014, he was posted at PS Preet Vihar as Head Constable and was working as duty officer from 12.00 night to 8 a.m. ASI Suresh Chand handed over a rukka to FIR No.569/14 State vs Pooja 22 of 73 him and accordingly, he got recorded the FIR no. 570/2014 through computer operator. He brought on record the copy of the FIR as Ex.DW1/A. The FIR Ex DW1/A was recorded on the statement of accused Pooja. The accused is the complainant in the said FIR. In her statement, she stated that she is residing at E­40/63, Jhuggi Radhu Palace, Delhi and does the house cleaning job. She has been living with the Asif (now deceased) for last about one year. Asif was doing the job of a raj mistri (mason). Asif was facing some case of PS Shakarpur due to which he used to remain disturbed and he had stopped taking food. He used to remain unhappy. He was disturbed when he came home yesterday evening and she tried to pacify him. At about 9 pm, they were talking in the jhuggi and she was trying to make him understand. Suddenly, Asif became angry and he assaulted her with some sharp object lying in the jhuggi. She tried to escape from there but Asif closed the door of the jhuggi and he gave several blows on her head with the sharp rod. She somehow, opened the door of the jhuggi. Somebody made a call at 100 number and called the police. Police took both of them to the hospital in their vehicle. She stated that appropriate action be taken against her husband. On the basis of her statement, the above mentioned FIR was registered against Asif (now deceased) u/s 308 IPC.

7. DW2 Dr. Ruby Kumari is the doctor concerned who had medically treated the accused when she was brought to the hospital by the PCR van. DW2 deposed that on 11.09.2014, she was working as CMO in the LBS hospital. She stated that Pooja w/o Asif @ Asgar was brought FIR No.569/14 State vs Pooja 23 of 73 by HC Dharmender in PCR van with the alleged history of assault and she had suffered the following injuries:­

1. Bleeding from right ear.

2. Lacerated wound 4x1 cm in frontal area of head.

3. Incised wound about 2cm x 1cm x ½ cm on frontal region towards left side.

4. Lacerated wound about 3 cm x 1 cm in front of parietal region on left side.

5. Lacerated wound ½ cm below lateral margin of left eye

6. Lacerated wound about ½ cm on right side of neck.

Accused was referred to SR Surgery for further opinion and doing the needful. DW2 brought on record the MLC of accused as Ex.DW2/A.

8. DW3 Smt. Pooja is the accused herself. She deposed that since 2013, she was living with her husband Asif (since deceased) in the Jhuggi No.E­40/63, Radhu Palace, Delhi. Deceased Asif was her husband. He was angry with her as he wanted to go to his parents after leaving her. He was a short tempered person. She stated that she does not remember the exact date of incident but it happened in the month of September 2014. She deposed that on the date of incident, she was with her husband Asif in the said jhuggi. At about 6­7 pm, her husband started telling her that he wanted to go to his parents after leaving her. She objected to the same and on this, some trivial hot discussion took place between them and he had lifted a kitchen knife and assaulted FIR No.569/14 State vs Pooja 24 of 73 her on the right side of her neck. She saved herself and then Asif went outside the jhuggi and after sometime came back to the jhuggi with an iron rod and again assaulted on her head and chest and caused injuries to her. During the scuffle, when she was trying to save herself, the iron rod got struck against his stomach and he became seriously injured and she fell down on the ground and raised alarm for help. Some neighbours came there and after some time, she became unconscious. She stated that she does not know anything else and she regained consciousness in the hospital.

SUBMISSIONS ADVANCED:­

9. I have heard the Ld. Addl. P.P for the State as well as Ld. Legal Aid Counsel and gone through the record of the case. I have also gone through written submissions filed on behalf of accused.

10. Ld. Addl. PP for the State argued that prosecution case is based on circumstantial evidence and the prosecution has been able to prove all the circumstances beyond doubt. Testimony of prosecution witnesses and material available on record, especially, the testimony of PW7 Dr. Vinay Kumar Singh are sufficient to hold the accused guilty of committing murder of Asif. It is further submitted that PW1 Ms. Kavita, PW2 Ms. Asha and PW3 Inder Dev Singh have proved on record that at the time of incident, the accused as well as deceased were present in the jhuggi and when the jhuggi was opened, the deceased as well as accused were found in injured condition. It is further submitted that the onus was on the accused u/s 106 of Indian Evidence Act to establish on record that the incident had occurred according to her FIR No.569/14 State vs Pooja 25 of 73 defence, however, accused has failed to discharge the burden under the said section. Thus, it is submitted that the accused had inflicted several fatal injuries on the vital part of the body of the deceased due to which he died. Thus, it is prayed that accused may be convicted for committing murder of Asif.

11.Ld. LAC, on the other hand, argued that accused is innocent and she has been falsely implicated in this case. The prosecution has examined 18 witnesses and none of the witnesses have deposed that accused had killed the deceased. The case is based on circumstantial evidence and according to police, accused and deceased were found in injured condition. It is also submitted that PW1 Ms. Kavita, PW2 Ms. Asha and PW3 Inder Dev Singh are procured witnesses by the police and there are contradictions in their cross examination. In her statement PW1 deposed that her statement was recorded by the police at her home while PW14 Kishanveer deposed that he had recorded statement of all above witnesses at about 10 am at the spot. PW1 has deposed in her examination in chief that Inder Dev, the owner of the jhuggi had also reached there and after calling accused and her husband several times, accused opened the door of the jhuggi while PW3 Inder Dev has deposed in his cross­examination that he was not the owner of the jhuggi No.40/63 i.e. jhuggi of deceased Asif and also deposed that he had not given any statement to the police nor accompanied the injured Asif. Further, in his examination in chief, PW10 Ct. Bhom Singh deposed that he along with ASI Suresh Chand reached LBS Hospital where no eye witness was available and injured FIR No.569/14 State vs Pooja 26 of 73 Asif @ Asgar was found admitted in the hospital while PW1 deposed in her cross­examination that she had accompanied Asif and Pooja to LBS Hospital in police van. These contradictions show that PW1 was not present at the spot. PW2 Ms. Asha has not supported the prosecution case. It is further submitted that PW5 Asraf, the brother of deceased deposed in his examination in chief that about one and half months prior to his death, Asif met him and told that he wanted to go to home but the said lady Pooja (accused) was not allowing him to come to home due to which he was being puzzled. It shows that deceased was trying to get rid of accused and due to frustration, he tried to kill accused on 11.09.2014. It is further submitted that in his cross­ examination, PW15 ASI Virender Singh deposed that ASI Suresh Chand met him at about 10.30 pm. He does not remember the time when ASI suresh Chand came at the spot again from hospital. The rod/sria was taken into possession by SI Kishanveer at about 2.30 am. He remained at the spot for five and half hours. When he reached the spot, he had seen that the gate of the jhuggi of accused was open and no one was present in the said jhuggi when he reached there. No public persons visited the said jhuggi. Thus, it is submitted that PW1, PW2 and PW3 were not present at the spot. Ld. LAC further aruged that it is clear from the statement of accused u/s 313 Cr.P.C that deceased firstly strangulated her neck and caused injury on her neck with a knife and then started beating her with iron rod and assaulted on her face and chest and in this way, accused received six injuries which is also supported by medical evidence. Accused Pooja was FIR No.569/14 State vs Pooja 27 of 73 apprehensive that she might receive grievous hurt or might be killed, therefore, she caused injuries from the same rod to deceased Asif in order to protect herself and not with the intention to kill him. It is also argued that the prosecution has failed to prove the motive for the murder. There is no direct evidence. Present case is based on circumstantial evidence and none of the circumstances, on which prosecution relies, have been proved beyond the shadow of doubt. Thus, it is prayed that accused may be acquitted. In support of his contentions, Ld. LAC has also relied upon the following case laws:­

(i) 2006(4) Criminal Court Cases 264 (SC), Krishan vs State of Tamil Nadu and

(ii) 2005 (4) Criminal Court Cases 455 (P&H), Pirtha Singh & Ors. Vs State of Punjab.

(iii)2010 CRI L.J. 1393, Darshan Singh vs State of Punjab & Anr. DISCUSSION ON THE PROSECUTION EVIDENCE:­

12.In the present case there is no direct evidence available against the accused to connect her with the offence and the present case is based upon the circumstantial evidence. As per prosecution case, during a quarrel which occured on 11.09.14, between 9 to 10 pm, in the Jhuggi No.E­40/63, Radhu Palace, Delhi, deceased Asif assaulted the accused with a pointed iron rod (the iron rod generally used for roasting the food) and during the same time, accused also assaulted the deceased with the same iron rod and inflicted seven penetrating wounds on his abdomen which proved to be fatal and after three days of incident, deceased Asif succumbed to the said injuries. As per prosecution case, there is no eye witness to the incident of assault FIR No.569/14 State vs Pooja 28 of 73 made by accused upon the deceased as the incident took place inside the closed jhuggi. As such, firstly, the prosecution was required to establish that the incident took place in the closed jhuggi before considering the aspect of applicability of the provision of section 106 Evidence Act. If the prosecution succeeds in establishing the fact that the incident had taken place inside the closed jhuggi and at the time of incident, the accused and the deceased were alone in the jhuggi, then, burden would get shifted upon the accused to explain the circumstances, as to how deceased Asif suffered injuries. Thus, before proceeding to the applicability of section 106 Evidence Act, firstly, the evidence of the prosecution is to be analyzed to see, if the prosecution has successfully discharged the initial burden.

13.In order to prove that on 11.09.14, between 9 to 10 pm, a quarrel had taken place between the deceased Asif and accused inside the jhuggi no.E­40/63, Jhuggi Radhu Palace, Delhi, the prosecution has examined three witnesses i.e. PW1, PW2 and PW3. As per prosecution case, besides the other persons of locality, these three witnesses had reached outside the jhuggi of deceased at the time when quarrel was going on between the deceased and the accused inside the said jhuggi. The IO had recorded the statement of these three persons in regard to the occurrence of the said incident. As per prosecution case, PW1 Ms. Kavita is the first person who had reached the spot. PW1 deposed that she is residing in a jhuggi situated in the same colony. She further stated that deceased and accused had shifted to their colony about 2­4 months prior to the incident. Her sister FIR No.569/14 State vs Pooja 29 of 73 Hulasi is residing in front of the jhuggi of accused. On 11.09.14, during 9­10 pm, she had gone to the jhuggi of her sister to pick up her children and at that time she heard noise of quarrel from the jhuggi of accused. The door of the jhuggi was closed. She called accused and her husband but no one opened the door of the jhuggi. In the meantime, Inderdev, the owner of the jhuggi and other persons of the locality also came there. Accused opened the door after Inderdev, called accused and deceased several times. They saw that Asif was lying on the floor and bleeding and accused Pooja was also injured and she was also bleeding. She made a call at 100 number through the mobile phone of her sister Hulasi. PCR van came there and took accused and Asif to hospital.

14.PW3 Inderdev is another resident of the area and as per prosecution case, he had also come to the spot while the quarrel was still on between the deceased and accused. PW3 is also one of the residents of Jhuggis situated in the same area. He stated that in the year 2014, Asif (deceased) was residing with his wife (accused) in his neighbourhood, in the Jhuggi No. E­40/63. On 12.09.14, at about 10 pm, he was informed by a boy that sound of shrieks are coming from the jhuggi of Asif. He went to the jhuggi of Asif but the door was closed from inside and some sound was still coming from the jhuggi. On his repeated knocking Pooja opened the door. She was bleeding from her head and when they entered the jhuggi, they saw Asif lying on the floor and bleeding from his abdomen. Police came there and took Asif and Pooja to hospital in their vehicle.

FIR No.569/14 State vs Pooja 30 of 73

15.PW2 Ms Asha is another material witness of this case as at the time of incident she was living in the jhuggi situated adjacent to the jhuggi of Asif. PW2 has also supported the case of the prosecution but she did not support the case of the prosecution on the aspect that accused Pooja had opened the door of the jhuggi in her presence. She deposed that on 11.09.14 at about 9­10 pm, she was in her jhuggi with her children and suddenly, she heard the noise of quarrel between accused Pooja and her husband. She came out and saw that many persons of the locality had gathered in the lane. Kavita (PW1) made a call to police and police came there and took the accused and her husband (who were in injured condition and bleeding) to the Hospital. PW2 was cross examined by Ld. Addl. P.P. and during her cross examination, she supported the prosecution case and admitted that at the time when she came, the door of the jhuggi of accused was lying closed. She expressed her ignorance about the fact that accused and her husband did not open the door on the call of persons of locality and accused opened the door when Inderdev came at the spot and called them with their names. This witness voluntarily stated that door of the jhuggi was open when she had come out of her jhuggi. Thus, PW2 has also supported the case of the prosecution that on 11.09.14, between 9 to 10 pm a quarrel broke out between deceased and accused and she also came out and went to the spot. It is clear from the perusal of her complete testimony, especially her cross examination conducted by Ld. Addl.P.P. that this witness had also come to the spot when the door of the jhuggi was lying closed and quarrel was going on inside the FIR No.569/14 State vs Pooja 31 of 73 jhuggi of accused. In case, the door of the jhuggi of accused would not have lying closed at that time when she had come out of her jhuggi, she must have denied the suggestion put by Ld. Addl.P.P. in this regard and further she would not have expressed her ignorance about another suggestion and would have denied that accused opened the door when Inderdev came there. During her cross examination, she voluntarily stated that door of the jhuggi was lying open when she came out. It is clear from her cross examination conducted by Ld. Addl.P.P. that she admitted that at the time when she came out quarrel was going on and door of the Jhuggi was lying closed. She has stated that police had removed the deceased and accused to the hospital in her presence. Thus, it is quite clear that door of the jhuggi must have been opened by the accused when PW2 was also present in front of the jhuggi of the accused amongst other neighbours and thus, it can be culled out, from the statement voluntarily made by her about the fact that when she came out door of the jhuggi was lying closed, that either she was won over or she knew the implications of that fact and therefore, she did not support her previous version only on this aspect.

16.It is clear from the testimony of these three witnesses that for quite sometime prior to the incident deceased Asif and accused were residing in the jhuggi no. E­40/63 Jhuggi Radhu Palace, Delhi and on 11.09.14 at between 9­10 pm, a quarrel broke out between deceased Asif and accused in their jhuggi no. E­40/63, Radhu Palace and after hearing the noise of quarrel, firstly, the PW1 who was incidentally present just close to the jhuggi of accused, reached there and FIR No.569/14 State vs Pooja 32 of 73 subsequently, PW2, PW3 and other residents of the area reached there. It is further clear that at the time when these witnesses reached outside the jhuggi of the accused, quarrel was still on and initially, PW1 made efforts to get the door of the jhuggi opened and later on, PW3 repeatedly knocked the door upon which accused opened the door. It is also clear that at the time when accused had opened the door, she as well as deceased Asif were in injured condition and accused was bleeding from her head and deceased was bleeding from his abdomen. All these witnesses were cross examined by Ld. LAC but nothing material has come out of their cross examined to disbelieve their version. However, during arguments, it was submitted that the presence of PW1, PW2 and PW3 is highly doubtful as there are material contradictions in their testimony. It was submitted that in her statement, PW1 deposed that her statement was recorded by the police at her house while as per PW15/IO her statement was recorded at the spot. PW3 deposed in his cross­examination that his statement was not recorded by the police. The contradictions pointed out by the Ld. LAC do not carry much weight. The incident took place in the month of September 2014 and statements of PW1, PW2 and PW3 were recorded before the court in the year 2017. It is quite normal that minor contradictions and discrepancies may appear even in the testimony of a most enlightened witness whenever there is a wide gap of time between the statement made by a witness to police u/s 161 Cr.P.C and the statement made before the court. Thus, it is quite possible that PW3 Inderdev might have forgotten that he had given a FIR No.569/14 State vs Pooja 33 of 73 statement to the police about the incident due to lapse of time. Furthermore, presence of PW3 has been proved by PW1 also. Therefore, entire testimony of PW1, PW2 and PW3 cannot be discarded merely because of minor contradictions which emrged in their cross­examination and their testimony is to be seen in totality. PW1, PW2 and PW3 have corroborated the testimony of each other. It is clear that all these witnesses were residing in the neighbourhood of the accused. Moreover, it is clear that this fact has neither been disputed in the cross examination of these witnesses nor any evidence has been led by the accused to the contrary. It is further undisputed that sister of PW1 was residing in front of the jhuggi of accused. It is also clear from the testimony of PW1 that she is a natural witness as at the time of incident, she was incidentally present in front of the jhuggi of the accused as she had gone there to take her children back from the jhuggi of her sister Hulasi. It is further clear from the site plan Ex PW9/A that distance between the jhuggi of the accused and jhuggi situated in front of it is very short and thus, PW1, could have easily heard the noise of quarrel which was taking place in the jhuggi of accused. The presence of PW1 outside the jhuggi of the accused, at the relevant time, has been further fortified by PW2 who affirmed that PW1 made a call to the police. The presence of PW3 has been established by PW1 who categorically deposed that accused did not open the door when she called accused and deceased, however, accused opened the door when PW3 repeatedly called the accused and deceased. Thus, presence of these witnesses at the relevant time FIR No.569/14 State vs Pooja 34 of 73 stood established by the testimony of these witnesses. Moreover, the presence of these witnesses has not been disputed during cross examination of these witnesses. No suggestion has been put to these witnesses to dispute their presence at the spot at the relevant time. Furthermore, even nothing has surfaced in their cross examination to have a slightest doubt about their presence at the relevant time.

17.It is also clear from the statements of these witnesses that they all have very well corroborated and supported each other on all the material aspects. It is further clear that PW1 is a natural witness while other two had also come to the spot on hearing the noise of quarrel going on between the deceased and accused. It is further clear from the cross examination of these witnesses that the testimony of these witnesses qua the facts, that they had gathered outside the jhuggi of accused at the time when quarrel was going on between them and at that time the door of the jhuggi was latched from inside and accused did not open the door when PW1 called the accused and deceased but she opened the door when PW3 repeatedly knocked the door of the jhuggi, remained unchallenged. It is also not disputed that these witnesses and other residents were also present when accused had opened the door of the jhuggi. It is further not disputed that at the time when accused opened the jhuggi, these witnesses found the deceased lying on the floor of the jhuggi in injured condition and bleeding from his abdomen. It is further not disputed that PCR van had also come to the spot and PCR had taken the accused and deceased to the hospital in their presence. Ld. LAC submitted that the presence of PW1, PW2 FIR No.569/14 State vs Pooja 35 of 73 and PW3 is highly doubtful as there is no material on record to show that anyone of them had gone to the hospital with the deceased and accused. Perusal of testimony of PW1 shows that during cross examination, she was asked if she had gone to the hospital with the deceased and accused in PCR Van to which she replied in affirmative and thereafter, no suggestion has been put to this witness to dispute this fact. Thus, it is also clear that PW1 had also gone to the hospital with the deceased and accused. Furthermore, the testimony of these witnesses cannot be doubted merely for the reason that they did not accompany the deceased to the hospital. PW3 has deposed the date of incident as 12.09.14 instead of 11.09.14. This also cannot be taken as a material contradiction as the date of incident is not in dispute. Further it is clear that there was considerable gap of three years between the date of incident and the date of his deposition, thus, under these circumstances such an omission might occur while recalling these minute details of the incident. In her testimony PW1 deposed that PW3 Inderdev is the owner of the jhuggi wherein accused and deceased were residing while during cross examination PW3 denied this fact. This contradiction in the testimony of these two witness also cannot be considered to be a material one as in the present case, it is to be seen from the testimony of these three material witnesses whether they had gathered at that spot while the quarrel was going on between the deceased and accused and the status of the PW3 qua the jhuggi of the accused is immaterial. Furthermore, it may be that PW1 was under impression that PW3 is the owner of the jhuggi while infact FIR No.569/14 State vs Pooja 36 of 73 he was not, but this perception of PW1 does not change the scenario that PW1 as well as other two witnesses were present outside the jhuggi of the accused while quarrel was happening inside the jhuggi. Thus, it is clear that testimony of these material witnesses doesn't suffer from any material contradiction and moreover, it is clear from their cross examination that their testimony has not been assailed on the material aspects and thus, even otherwise same remained unrebutted and unchallanged.

18.Nothing has come on record to show that there was any kind of animosity between these witnesses and the accused. Even otherwise, this is also not the case of the accused that these witnesses deposed against her as they were inimical towards her. Thus, there was no other reason for these witnesses to depose the said facts in their testimony but that they had infact witnessed the said facts by themselves. Thus, it is clear from these facts and circumstances that testimony of these witnesses is trustworthy and from their testimony it stood established beyond reasonable doubt that on 11.09.14, between 9 to 10 pm, in the jhuggi of accused i.e. E­40/63, Jhuggi Radhu Palace, a quarrel broke out between deceased Asif and accused and on the call of the PW3, accused had opened the door of the jhuggi and at that time deceased Asif was lying on the floor of jhuggi in injured condition and bleeding from his abdomen and accused was also in injured condition and she was also bleeding from her head. It also stood established that PCR Van had come to the spot in their presence and PCR had shifted the deceased and accused to the LBS Hosptial in FIR No.569/14 State vs Pooja 37 of 73 the PCR Van. It is further clear from the testimony of these three material witnesses that at the time when accused opened the door of the jhuggi, there were only two persons in the jhuggi i.e. accused and deceased Asif. Thus, it stood established beyond reasonable doubt that at the time of incident only the deceased and accused were present inside the jhuggi.

19.It stood established beyond doubt that these witnesses had gathered outside the jhuggi of the accused while the quarrel was happening between deceased and accused and on the repeated calls the door of the jhuggi was finally opened by the accused. Further, this fact has not been disputed on behalf of the accused during the cross examination of these material witnesses, however, at the later stage of the case, while answering to the question put to the accused during her statement u/s 313 Cr.P.C., she took a stand that she did not open the door of the jhuggi as she was semi-unconcious and not able to walk at that time. It seems that this defence is an afterthought and she made a feeble attempt to deny this fact perhaps after realizing the implications of this fact. It is clear from the material brought on record by the prosecution as well as accused herself that accused has taken a false plea in this context. In order to prove the injuries suffered by her, she has examined DW2 Dr Ruby Kumari from LBS Hospital. DW2 has brought on record the MLC of the accused as Ex DW2/A. It is clear from her MLC that at the time when she was brought to the hospital she was conscious. In regard to the same incident, accused had also got registered an FIR against the deceased u/s 308 IPC copy of which FIR No.569/14 State vs Pooja 38 of 73 has been brought on record by DW1 ASI Satpal Singh Rana, the duty officer concerned as EX DW1/A. It is clear from FIR EX DW1/A that accused had stated in her complaint that after deceased assaulted her, she somehow opened the door of the jhuggi and thereafter, she was taken to the hospital by the police. Thus, the fact that after incident, the door of the jhuggi was opened by the accused stood very well proved from the prosecution evidence as well as from the admitted documents brought on record by the accused.

20.As such, it is clear that at the time of incident, only two persons i.e. accused and deceased were present in the jhuggi where the deceased had suffered several injuries on his abdomen. The injured succumbed to the injuries suffered by him and he expired three days after the incident. Thus, before analyzing further prosecution evidence to reach to a conclusion, it is to be seen whether the provisions of Sec 106 of Evidence Act can be invoked in the present case, to shift the burden upon the accused to explain the injuries suffered by the deceased.

21.The provision of Sec 106 Evidence Act reads as under:­

106. Burden of proving fact especially within knowledge. ­ When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

22.In the case of State of Rajasthan Vs Thakur Singh, 2014 CriLJ 4047, the Hon'ble Supreme Court has held that the burden to prove certain facts which are exclusively in the knowledge of accused, is on the accused. The relevant paras of this case are reproduced as under:­

16. Way back in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 this Court dealt with the interpretation of Section 106 of FIR No.569/14 State vs Pooja 39 of 73 the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said :

"This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate dis­proportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre­eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."

17. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said :

"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra, 1992(3) R.C.R.(Criminal) 294 : (1992) 3 SCC 106 in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an FIR No.569/14 State vs Pooja 40 of 73 explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.

19. Similarly, in Dnyaneshwar v. State of Maharashtra, 2007(2) R.C.R.(Criminal) 764 : (2007) 10 SCC 445 this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.

23.It has been held by Hon'ble Supreme Court in the case of Gajanan Dashrath Kharate v. State of Maharashtra reported as 2016 (4) SCC 604 that when an offence of murder takes place inside the house, the burden will be on the other inmate to explain as to how the crime was committed. The relevant portion of this Judgement is reproduced as under:­ When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of occurrence, when accused and his FIR No.569/14 State vs Pooja 41 of 73 father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries.

24.In view of the settled law, it is clear that where an offence takes place inside a premises and one of the occupants has either suffered injuries or has died in the incident, then in view of the settled provisions of Sec. 106 Evidence Act, the onus to explain, as to how offence took place, will surely be on the other inmate as these facts are especially within his knowledge. The facts and circumstances of the present case are quite similar to the above stated legal position and in view of the settled provision of Sec. 106 Evidence Act, the burden to prove the fact that on 11.09.14, between 9 to 10 pm, as to how, the deceased Asif had suffered several penetrating wounds on his abdomen, was on the accused as it stood clearly established that at the time of incident only two persons were present inside their jhuggi i.e. Jhuggi no E­40/63, Jhuggi Radhu Palace. Furthermore, it is also clear from the testimony of PW1, PW2 and PW3 as well as the FIR Ex DW2/A that at that time when accused opened the door of the jhuggi the incident was also already over. Thus, deceased Asif had already received injuries before the door was opened as after the door was opened the PCR had arrived there and it had taken the deceased and accused to the LBS Hospital. It is clear that the call to the police was made at about 9.47pm and after sometime PCR Van had reached the spot and official of PCR van had got admitted the deceased in the hospital at about 10.30 pm and after medical examination of deceased, the doctor concerned had informed vide MLC Ex 8/A that the deceased Asif was FIR No.569/14 State vs Pooja 42 of 73 having seven penetrating wounds on his abdomen. Thus, it is clear that within no time of opening the door, the deceased was removed to the hospital where he was found having seven penetrating wounds which shows that the deceased had received those injuries during the incident happened behind the closed door of the jhuggi. Further, it is also clear from the testimony of the material witnesses that deceased Asif was lying on the floor of the jhuggi and bleeding from his abdomen when door was opened by the accused Thus, it is clear from these discussions that before the door was opened, the incident was over and whatever injuries were suffered by the deceased, were suffered by him behind the closed doors of the jhuggi and thus, the fact that how he suffered the injuries is to be explained by the accused, as she was the only person who was present with the deceased at the time of incident.

25.In regard to the injuries suffered by the deceased, the accused in her statement u/s 313 CrPC has stated as under:­ "...On the date of incident when Asif and I reached at Jhuggi at 9.00 p.m., I opened the lock of the door of the jhuggi and when we entered the jhuggi Asif bolted the door of the jhuggi from inside. Then he started strangulating my neck and caused injury at my neck with knife. I snatched the knife from his hand and threw that knife, then he went out side the jhuggi and locked me inside the jhuggi. After sometime, Asif came back to Jhuggi with iron rod and started shouting at me after bolting the door from inside and shouted 'main tumse bahut pareshan hu' and he started beating me with iron rod with intention to kill me. He attacked with iron rod on my head twice or thrice and blood oozed out from my head. He also FIR No.569/14 State vs Pooja 43 of 73 assaulted with the same iron rod on my face and chest. During that process, I in order to save myself I tried to pull the iron rod from the hands of Asif. Thereafter, the iron rod slipped off my hands and Asif alongwith the iron rod fell on the floor. I do not know as to how he suffered injuries. After suffering injuries, I felt giddiness and became semi­unconscious. Thereafter, police with the help of a girl who was residing in the neighbourhood made us sit in the PCR van and thereafter police shifted me and Asif to the hospital. Asif was in the habit of regularly consuming ganja".

26.The accused has examined herself as DW1 and in her testimony also, she has taken the similar defence. She deposed that deceased assaulted on her head and chest and caused injuries and during scuffle, when she was trying to save herself, the iron rod got struck the deceased. She stated that deceased got severely injured and fell on the ground. She raised alarm and some neighbours came and after sometime she became unconscious.

27. Thus, it is clear that accused had got sufficient opportunities to explain the circumstances as to how deceased suffered injuries but the accused did not explain the same rather it is apparently clear that she has taken a false defence. It is clear from the post mortem report Ex.PW9/A that deceased had suffered seven wounds on his abdomen. Thus, defence taken by the accused proved to be false when the injuries suffered by the deceased are seen vis a vis the defence of accused. According to the accused, in the incident, the deceased Asif @ Asgar had accidently suffered only one injury. Even if this stand of the accused is taken as true yet it remained completely unexplained, FIR No.569/14 State vs Pooja 44 of 73 as to how the deceased suffered the other six penetrating wounds on his abdomen. Thus, despite having sufficient opportunities at her hand, the accused did not put forth any explanation in this regard and it is held that the defence taken by the accused in this regard is not trustworthy at all.

28. In the case reported as Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 the Hon'ble Supreme Court has held that where burden is on the accused to explain as to how the other inmate of the premises suffered injuries and died and in case, he has failed to explain or has furnished false explanation, then it has to be assumed that accused has committed offence. The relevant para of this Judgement is reproduced as under:­ "22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.

29.On this point, in the case reported as Gajanan Dashrath Kharate v. State of Maharashtra, the Hon'ble Supreme Court has held that:­ On the date of occurrence, when accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the FIR No.569/14 State vs Pooja 45 of 73 accused that he is responsible for the commission of the crime.

30.Since in the present case also the accused has furnished a false explanation about the injuries suffered by deceased Asif, thus, under these facts and circumstances, it has to be assumed that the injuries suffered by the deceased were caused by the accused and none else. Now it is to be seen what article was used by accused to cause these injuries to the deceased. As per prosecution case, the accused had assaulted the accused with the iron rod Ex P1. In order to establish that iron rod Ex P1 is the weapon of offence prosecution has mainly examined two witnesses i.e. PW 14 SI Kishanveer Bhati, the second IO who was assigned the investigation after registration of the case and PW15 ASI Virender. As per testimony of public witnesses i.e. PW1 and PW2, the incident took place between 9 to 10 pm. PW3 also deposed that he came to know about the incident at about 10 pm. It is further clear from the PCR form that call about the quarrel was made at around 9.47 pm and same was attended by the PCR at around 10 pm. PCR van had shifted both the injured persons to the hospital at 10.30 pm. As per PW1, the police had come to the spot after about half an hour of the call. As such, it is clear that PW13 had reached the spot at around 10.15 pm. As per PW15, he reached the spot at around 10.30 pm and PW13 had left him at the spot to guard the crime scene when PW13 proceeded to the hospital. It is clear from these discussion that after the door of the jhuggi was opened within no time PCR van came there and took the injured Asif and accused to the hospital and around the time PCR van left the spot, PW13 reached the spot with PW10 and FIR No.569/14 State vs Pooja 46 of 73 subsequently, within few minutes PW15 joined them at the spot. It is further clear from the testimony of PW14 that when he reached the spot at around 2.10 am, PW15 was already present there. As per the testimony of PW15, IO took into possession one blood stained iron rod Ex.P1 from the spot and sealed the same with the seal of KVB and seized the same vide seizure memo Ex.PW10/B. PW14 also took into possession the piece of blood stained floor and sealed its vial with the same seal and seized the same vide a separate seizure memo Ex.PW10/A. It is clear from Ex.PW16/A, the copy of register no.19 that the said exhibits were deposited by PW14 on 12.09.14 in the sealed condition. After post mortem, the doctor concerned had handed over the blood gauze of the deceased in an envelope sealed with the seal of LBSH DFMT which was deposited in the same condition in the malkhana which is also clear from the entry Ex.PW16/A. It is further clear that these exhibits were deposited in the FSL vide acknowledgement Ex.PW16/D­2 in the same condition and this fact is also clear from the FSL report Ex.PW17/A. It is clear from the said FSL report that the blood found on the iron rod matches with the blood of the deceased which further strengthens the fact that the deceased was assaulted with the iron rod Ex.P1.

31.In view of these discussions it is held that the deceased was assaulted with the iron rod Ex.P1 which was recovered from the spot after incident. Moreover, it is undisputed that the deceased got injuries by the iron rod Ex.P1. It is not the case of the accused that the iron rod Ex.P1 is not related to the present case rather it is clear from the cross FIR No.569/14 State vs Pooja 47 of 73 examination of IO/PW17 that defence of the accused is that the accused did not assault the deceased with the said object rather deceased got accidently injured with the said iron rod during quarrel. In her statement u/s 313 Cr.P.C. as well as in her own evidence accused has taken the same defence. In view of these discussions it is held that since the accused was the only person present with the accused at the time of incidnent and since she failed to explain the said circumstances, hence, it is to be presumed that it is none else but it is she only, who had caused the injuries to the deceased. With the above said discussions, it also stood established that iron rod is the weapon of offence, hence it is further held that during incident accused had assaulted the deceased with the iron rod Ex.P1 and had caused seven injuries on the abdomen of deceased.

32.It is clear from the evidence of PW7 Dr Vinay Kumar Singh, the doctor who had conducted the post mortem of the deceased that all the seven injuries were ante mortem and first six injuries were individually and collectively sufficient to cause death of deceased Asif. Hence, it further stood established that deceased died due to the injuries caused by the accused during the incident. Hence, it is held that accused is responsible for the death of deceased Asif.

33.Now it is to be seen that whether act of the accused falls within the definition of murder as mentioned in the provision of sec 300 IPC or the present case falls within the exceptions mentioned in this section. The provision of sec 300 IPC and its exceptions are reproduced as under:­ FIR No.569/14 State vs Pooja 48 of 73

300. Murder. ­ 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 ­ 2ndly. ­ It is done with 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 ­ 3rdly. ­ 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 ­ 4thly. ­ 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.

Exception 1. ­ 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 provocation is not sought or voluntarily 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 provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation. ­ Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2. ­ Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm that in necessary for the purpose of such defence.

FIR No.569/14 State vs Pooja 49 of 73 Exception 3. ­ Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill­will towards the person whose death is caused.

Exception 4. ­ Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.

Explanation. ­ It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5. ­ Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

34.In the case of State of A.P. v. Rayavarapu Punnayya and Another, (1976) 4 SCC 382, the Hon'ble Supreme Court has discussed as to how a case should be analyzed to see if it is a particular case of Culpable Homicide amounting to murder or not amounting to murder or the same falls within the exceptions. The relevant paras of this case are reproduced as under:­ "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice­versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of FIR No.569/14 State vs Pooja 50 of 73 Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section

304.

21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code."

35.It has been held by the Hon'ble Supreme Court in the case of Surendra Vs State of Maharashtra 2006 (11) SCC 434 that it is the duty of the court to also analyze the evidence to see if a particular case FIR No.569/14 State vs Pooja 51 of 73 falls in the exception clause. The relevant para of this case is reproduced as under:­

20. In State of U.P. v. Ram Swarup and Another [(1974) 4 SCC 764], this Court stated the law, thus :

"The burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralised nor shifted because the accused pleads the right of private defence. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and not until it does so can the question arise whether the accused has acted in self­defence. This position, though often overlooked, would be easy to understand if it is appreciated that the Civil Law Rule of pleadings does not govern the rights of an accused in a criminal trial. Unlike in a civil case, it is open to a criminal court to find in favour of an accused on a plea not taken up by him and by so doing the Court does not invite the charge that it has made out a new case for the accused. The accused may not plead that he acted in self­defence and yet the Court may find from the evidence of the witnesses examined by the prosecution and the circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private defence or that the offence is mitigated because the right of private defence has been exceeded.

36. In the case of Parminder Singh vs State H.A.L Police, Bangalore 2007(3) AICLR 762, the accused had taken the plea of alibi and thus, it was agitated on behalf of the prosecution that under these circumstances, the case of the accused cannot be considered qua the exceptions of Sec 300 IPC. The Hon'ble High Court of Karnataka did not find merit in this objection of prosecution and held that the case of the accused can be considered qua exception even where he had taken the plea of alibi and it has been further held that it is the duty of the court to look into the record to see if the case of the accused falls FIR No.569/14 State vs Pooja 52 of 73 within exception. The relevant paras of this case are reproduced as under:­

30. But in light of the reasoning supra rendered in the case of Vijayee Singh, it cannot be said that the accused who pleads alibi is not entitled to claim the benefit of exceptions provided under Section 300 Indian Penal Code. Therefore, we hold that where in a case the accused take the defence of alibi nevertheless the offence proved is entitled for the benefit of exception of Section 300 Indian Penal Code, if the circumstances are brought out from the testimony of the prosecution witnesses and if it is manifest on the established facts.

31. Irrespective of the defence of the accused when he has been found guilty for any of the offences, if such evidence on record were to show that it comes under any of the exceptions of Section 300 Indian Penal Code the accused as a matter of right entitled to claim such benefit and it is also the duty of the Court to scrutinise the records to find out whether any such circumstances are available entitling the accused to claim the benefit of general exceptions.

37.Thus, here in the present case Exception 2 and Exception 4 of section 300 IPC are relevant. Firstly, discussion is being made qua the Exception 4 to see if in the facts and circumstances already discussed, the present case falls in this exception.

38.Before coming to the factual aspect of the present case, the law related to the elements required for falling a case in the Exception 4 are required to be noted. In the case of Samsuddhin Sheikh Vs State of Goa 2008 (17) SCC 170, in the regard to the elements required for Exception 4 of Sec 300, the Hon'ble Supreme Court has held as under:­ FIR No.569/14 State vs Pooja 53 of 73

6. The Fourth Exception of Section 300 Indian Penal Code covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self­control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 Indian Penal Code is not defined in the Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have FIR No.569/14 State vs Pooja 54 of 73 worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.

39.Now the facts of the present case are to be analyzed in view of the above referred legal position. It was the duty of the prosecution to establish the reason and origin of the incident, however, it is clear from the record that the chargesheet is completely silent on this aspect and nothing has been mentioned as to how the incident occurred. However, it is clear from the record as well as evidence led by the prosecution that in order to throw light regarding the reason behind the incident, the prosecution has solely relied upon the version of the accused made by her in her disclosure statement. The disclosure statement has been brought on record as Ex.PW12/C. The accused has stated in her disclosure statement that earlier she was residing at Distt. Alipur, Jalpaiguri, West Bengal. At the age of 15­16, she started living with one boy of her village namely Mithun. During that period she gave birth to one male and a female child. Her mother had passed away and her father had got disappeared while working and his whereabouts were not known. Around 5­6 years ago, she came to Delhi after having a quarrel with said Mithun and his sister in law. She FIR No.569/14 State vs Pooja 55 of 73 worked in the houses for 3­4 years and managed her livelihood. Around 12 months ago, she was working at Parwana Road and there she came across with Asif (deceased) as he was residing at Parwana Road. Asif left his said house and took a jhuggi on rent at Radhu Palace and started living there with her after leaving his family. For a few days, he behaved properly with her. Around that time, a case was registered against Asif because of a girl and he used to remain disturbed. He used to come late and consume ganja and bhang. He used to quarrel with her on petty issues. He used to consume more ganja whenever he felt disturbed. On 11.09.14, they came to jhuggi at about 9 pm. She unlocked the jhuggi and after entering the jhuggi, Asif latched the door from inside and started pressed her neck and scratched her neck with a kitchen knife which she threw away. He went outside for sometime and after coming back, he again latched the door from inside. He told her that she has trapped him and he is perturbed because her and then he started assaulting her with an iron rod. He caused injuries on her head, right cheek and left eye. She stated that with the same iron rod she also caused injuries to defend herself. She stated that she loved him and feeling sad and repenting after coming to know about the demise of Asif. She stated that she had not caused injuries to him to kill him but in order to save herself. She lastly stated that some police officials had come in the search of Asif and he used to remain disturbed as he was to go to jail. Thus, as per prosecution case, the assault made by accused during the incident was not premeditated and it was the result of a sudden quarrel.

FIR No.569/14 State vs Pooja 56 of 73

40.In her defence accused examined herself as DW3 and she has taken the similar defence regarding the assaults made by the Asif, however, in her evidence she denied that she had assaulted him in her defence and she took a stand that Asif got accidently injured with the said iron rod. She was cross examined by Ld. Addl P.P. and the fact that deceased Asif was a short tempered person and on the date of incident a sudden quarrel broke out between the deceased Asif and accused and during quarrel, Asif initially, assaulted on the neck of accused with a kitchen knife and thereafter with an iron rod, have not been specifically disputed. Moreover, as per the prosecution case, the incident happened in the manner as detailed in Ex.PW12/C. Prosecution has examined three witness i.e. PW1, PW2 and PW3 to prove that on 11.09.14, between 9 to 10 pm, a quarrel had taken place between deceased Asif and accused. PW1 was incidentally present in front of the jhuggi of the accused and heard sound of quarrel and PW2 who was putting up in adjacent jhuggi also suddenly heard the sound of quarrel coming from the jhuggi of accused. PW3 had also come to spot while the quarrel was going on in the jhuggi. Thus, it is clear from the prosecution evidence itself that the incident is the result of a sudden quarrel and consequently, it is also to be held under these circumstances that the assault was not premeditated.

41.It is further clear from the record that as per prosecution case the assault was made by the accused in a sudden quarrel. This fact is to be further analyzed in view of the prosecution evidence. In order to establish that the assault was pre­meditated the prosecution was FIR No.569/14 State vs Pooja 57 of 73 required to establish on record the motive behind the assault and prosecution was also required to bring on record the sufficient material qua the same, however, neither it is the case of the prosecution that assault was premeditated nor it made any effort to put on record any material qua the same. There is nothing on record to show that accused had any reason to kill the deceased. As such, the reason for assaulting the accused put forth by the accused in her disclosure seems quite probable when the same is read alongwith her defence evidence. Though the disclosure statement of accused cannot be read against the accused, however, the admitted document of prosecution can be vizualized only to assess the actual reason behind the incident and assault, especially, when it supports the defence on this point.

42.In her defence evidence, she has brought on record the copy FIR Ex.DW1/A got registered by her against the deceased u/s 308 IPC. Accused has also brought on record the injuries suffered by her in the incident through the evidence of DW2 Dr. Ruby Kumari. As per DW2 the accused had suffered following injuries:­

(i) Bleeding from right ear.

(ii) Lacerated wound 4x1 cm in frontal area of head.

(iii) Incised wound about 2 cm x 1cm x ½ cm on frontal region towards left side.

(iv) Lacerated wound about 3 cm x 1 cm in front of parietal region on left side.

(v) Lacerated wound ½ cm below lateral margin of left eye.

(vi)Lacerated wound about ½ cm on right side of neck.

FIR No.569/14 State vs Pooja 58 of 73

43.It is undisputed that accused had suffered the abovementioned injuries in the incident. It was the duty of the prosecution to explain the reason behind the injuries suffered by the accused, however, nothing has been said by the prosecution in this regard. The description of injuries suffered by the accused clearly corroborates the version of the accused regarding the manner in which she was assaulted by the deceased. The accused stated that during that quarrel deceased firstly assaulted at her neck with a kitchen knife and then on her head and face with an iron rod. It is clear from the MLC Ex.DW2/A that accused suffered the injuries on the said part of the body which were possible with the said objects.

44.Now it is to be seen what was the reason for quarrel between them.

According to the prosecution the accused used to remain disturbed. As per PW5 (the brother of deceased), his brother was puzzled as he wanted to come to his house but accused was not allowing him to do so. In her testimony the accused stated that deceased was angry with her and wanted to go to his parents after leaving her and on the date of incident also deceased discussed the same matter and accused objected to the same due to which a trivial hot discussion took place between them. Thus, it is clear that deceased used to remain disturbed as accused was not allowing him to go to his parents and if we go by the version of the accused, it seems that the said issue got aggravated and took the shape of hot discussion and it further seems that the deceased became aggravated to the extent that he launched a fierce attack on the vital parts of the unarmed accused. It is clear from the FIR No.569/14 State vs Pooja 59 of 73 MLC Ex.DW2/A that deceased assaulted on the head, face and neck of the accused and caused several significant injuries on the vital parts of her body. Thus, in such a scenario, where during the verbal altercation, suddenly, a fierce assault is made, the person against whom such an assault is made, would loose his/her temper and may assault the aggressor in retaliation or in his/her defence, like what happened in the instant case. It can be clearly assessed from the facts and circumstances of the present case that initially, deceased assaulted the accused due to which accused lost her temper and in a fit of rage, she snatched the iron rod from the hands of the deceased and assaulted him and caused several injuries on the abdomen of the deceased some of which proved to be fatal and deceased succumbed to these injuries and after three days of the incident, he passed away. Though, for the purpose of Exception 4, it is immaterial as to who assaulted first, however, in the present case, the version of accused that deceased had assaulted first seems to be trustworthy for several reasons. It is clear that charge sheet is completely silent and in regard to the fact that as to how the incident took place, the prosecution has relied upon the disclosure statement of accused and this document also corroborates the version of accused in regard to reason and the sequence of the assault. Further, prosecution has not brought on record any reason for the accused to assault the deceased first. As per record, it is clear that it was deceased, who used to remain disturbed and it also seems that on the date of incident, he became furious when accused again denied him the permission to leave her and to go to his FIR No.569/14 State vs Pooja 60 of 73 parents. It is clear from the evidence of PW1, PW2 and PW3 that the deceased was lying on the floor in injured condition and was bleeding from his abdomen when the door of the jhuggi was opened by the accused. Thus, it also seems that firstly, the deceased would have assaulted the accused and deceased became badly injured after the accused had assaulted him and therefore, he was not in a position to stand even. Thus, under these circumstances his assaulting the accused later seems quite improbable.

45.It is clear from these discussions that deceased had launched a sudden and fierce assault on the accused in which she suffered significant injuries on her vital parts. Thus, it seems that on being assaulted badly, the accused lost her cool and she assaulted back the deceased in a fit of rage. It is further clear that accused assaulted the deceased with the same iron rod with which she was assaulted by the deceased. Thus, it is clear that after the hot discussion took place between them, firstly deceased had assaulted the accused and at same and with the same object, the accused assaulted the deceased. In view of these discussions, it is held that the accused had assaulted the deceased in a sudden quarrel and the assault made by accused was not premeditated.

46.In the present case, the accused had caused seven injuries on the abdomen of the deceased and as per expert opinion, six out of these seven injuries were sufficient to cause death of the deceased. As per PM report deceased had suffered these seven injuries:­ FIR No.569/14 State vs Pooja 61 of 73

i) Penetrating wound "stab" present over right lumber region of abdomen size 1.7x0.9 cm, cavity deep stitched, margins irregular, 9.5 cm from right side of the umbilicus, 96 cm above from the right heel.

(ii) Penetrating wound "stab" present over umblical region of abdomen size 1.3x1 cm, cavity deep stitched, margins irregular, 4 cm from right side of the umbilicus, 98 cm above the right heel.

iii)Penetrating wound "stab" present over umblical region of abdomen size 1.4x1 cm, cavity deep stitched, margins irregular, 2 cm from left side of the umbilicus, 97 cm above the right heel.

iv) Penetrating wound "stab" present over umblical region of abdomen seize 1x.0.6 cm, cavity deep stitched, margins irregular, 4.5 cm left side of the umbilicus, 98 cm above the right heel.

v)Penetrating wound "stab" present over umblical region of abdomen size 1x0.5 cm, cavity deep stitched, margins irregular, 1 cm from left side of the umbilicus, 99 cm above the right heel.

vi)Penetrating wound "stab" present over left lumber region of abdomen size 1.6x0.8 cm, cavity deep stitched, margins irregular, 10 cm from left side of the umbilicus 100 cm above the left heel. Vii) Lacerated wound of size 0.5x0.4 cm present over umbilical region of abdomen 1.5 cm from the right side of umblicus, 98 cm above righ heel.

Viii) Bruise present over right elbow joint posterior aspect of size 13x4.5 cm.

47.Now it is to be seen whether the case will be covered under Exception 4, where accused has caused several injuries on the vital part of the body of deceased. In the case of Atul Thakur Vs State of Himachal Pradesh 2018(2) SCC 496, it has been held by Hon'ble Supreme Court that number of wounds is not a decisive factor for the purpose of Exception 4 and mainly it is to be seen whether the assault was in a sudden quarrel and without premeditation alongwith the fact that accused had neither acted in a cruel manner nor taken undue FIR No.569/14 State vs Pooja 62 of 73 advantage. The relevant portions of the said case are reproduced as under:­ "The Taking overall view of the matter, the facts of the present case warrant invocation of Exception 4 to section 300 of IPC. For, it is a case of culpable homicide not amounting to murder inasmuch as the incident happened on account of sudden fight between the friends who had gathered for a drink party arranged at the behest of Hitesh Thakur. There was no pre­mediation and the act done by the appellant was in the heat of passion without the appellant taking any undue advantage or acted in a cruel manner. The number of wounds caused by the appellant, it is a well established position, by itself cannot be a decisive factor."

"What is relevant is that the occurrence was sudden and not premeditated and the offender acted in the heat of passion. The evidence supports the case of the appellant in this behalf. The fact that the appellant used weapon such as knife, is also not a decisive factor to attract section 302 of IPC. Neither the use of a knife in the commission of offence nor the factum of multiple injuries given by the appellant would deny the appellant of the benefit of Exception 4."

13. Dealing with a somewhat similar situation, in the case of Surain Singh v. State of Punjab, 2017(3) R.C.R.(Criminal) 406 : 2017(3) Recent Apex Judgments (R.A.J.) 570 : (2017) 5 SCC 796, this Court has restated the settled legal position about the purport of Exception 4 to section 300 of IPC. Even in that case, the accused had repeatedly assaulted the deceased with a Kirpan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part­II instead of section 302 IPC. Following the same legal principle and keeping in mind the factual position as unfolded, the view taken by the Trial Court of convicting the appellant for offence punishable under Section 304 Part­II, is unexceptionable.

14. As aforesaid, the High Court overturned this finding of the Trial Court on the question of nature of offence, by mainly observing that the appellant had caused repeated blows with a weapon like knife, causing six serious injuries to Hitesh Thakur to which he succumbed. We are of the opinion that neither the factum of use of knife by the FIR No.569/14 State vs Pooja 63 of 73 appellant during the assault nor the multiple blows (six) given by the appellant can be the sole basis to deny the appellant of the benefit available under Exception 4 to section 300 of IPC. The Court is obliged to take an overall view of the matter on the basis of the established facts. This principle is restated in Surain Singh's case (supra).

48.In the present case also there are several wounds on the vital part but it is clear that the accused had caused those injuries in a sudden fight and without premeditation and there is nothing on record to show that the accused acted in a cruel manner or taken any undue advantage of the situation. In the case reported as Jagtar Singh @Jagga @ Ganja Vs State of Delhi 2012(2)AD (Delhi) 517, the accused had caused nine injuries inclusive of several fatal blows on the vital parts of the body of the deceased. In this case, Hon'ble High Court has held that since the said injuries were caused in a sudden quarrel and without pre meditation the accused was guilty of the offence u/s 304 Part­I IPC. The relevant para of the said case reads as under:­

11. In the present case, there were two injuries on the neck, and two in the chest, of the deceased, caused by a sharp edged weapon. There were other minor injuries and abrasions; in all there were nine injuries. According to the doctor who conducted the post mortem of Parveen's body, the shock caused as a result of the injuries to the neck and chest was sufficient to cause death in the ordinary course of nature. The surrounding circumstances in the case point to some previous quarrel between the deceased and the Appellant; the latter was agitated and confronted the deceased in the first part of the incident, on the day of occurrence. The eyewitnesses sought to mollify the Appellant; however, the deceased slapped him. This resulted in the Appellant holding out a threat of dire consequences, and returning very shortly later, and inflicting knife injuries. Though he did inflict several blows ­ some of FIR No.569/14 State vs Pooja 64 of 73 which were fatal, it is clear that he did not set out with a pre­ meditated intention to kill the deceased. The facts clearly establish an offence under Section 304 Part­I, in which the intention was to cause such bodily injuries as would have resulted in death in the ordinary course of nature.

49.In view the these discussions, it is held that the present case is also covered under the Exception 4 of section 300 IPC and the act of the accused is punishable u/s 304 Part­I IPC.

50.As discussed earlier, the evidence of the present case is also to be analyzed to see if the present case also falls in the Exception2. Thus, before making further discussions on this aspect, the legal position in regard to Private defence needs to be discussed.

51.The relevant provision where right to private defence has been provided have been incorporated in the Sec. 96 to 106 of IPC. For the purpose of present case Sec 96 to 102 IPC are relevant which are reproduced as under:­

96. Things done in private defence. ­ Nothing is an offence which is done in the exercise of the right of private defence.

97. Right of private defence of the body and of property. ­ Every person has a right, subject to the restrictions contained in Section 99, to defend ­ First. ­ His own body, and the body of any other person, against any offence affecting the human body;

Secondly. ­ The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

FIR No.569/14 State vs Pooja 65 of 73

99. Acts against which there is no right of private defence. ­ There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt,if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Extent to which the right may be exercised. ­ The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1. ­ A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2. ­ A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

100. When the right of private defence of the body extends to causing death. ­ The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :­ First. ­ Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly. ­ Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

FIR No.569/14 State vs Pooja 66 of 73 Thirdly. ­ An assault with the intention of committing rape; Fourthly. ­ An assault with the intention of gratifying unnatural lust; Fifthly. ­ An assault with the intention of kidnapping or abducting; Sixthly. ­ An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

[Seventhly. ­ An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.]

101. When such right extends to causing any harm other than death. ­ If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death.

102. Commencement and continuance of the right of private defence of the body. ­ The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

52. In the case of Darshan Singh Vs State of Punjab 2010(2) SCC 333, the Hon'ble Supreme Court has laid down the following principles in regard to the right of private defence:­

(i) Self­preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self­creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that FIR No.569/14 State vs Pooja 67 of 73 there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co­terminus with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self­ defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

53.In the case of Darshan Singh, the Hon'ble Supreme Court has made the following further observations about excercise of right to private defence:­

57. In Buta Singh v. The State of Punjab, 1991(3) RCR(Crl.) 91 :

(1991)2 SCC 612, the court noted that a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self­defence and the right of private­defence commences, as soon FIR No.569/14 State vs Pooja 68 of 73 as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high­powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self­preservation is the paramount consideration.

But, if the fact situation shows that in the guise of self­preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact."

54.It has been held by Hon'ble Supreme Court in the case of State of Rajasthan Vs Manoj Kumar 2014(5) SCC 744 that the plea of private defence can be considered even when accused has not taken the same in his statement us/ 313 CrPC. The relevant para of this case reads as under:­

11. Mr. Milind Kumar, learned Counsel for the State, has submitted that the accused persons had not taken the plea of right of private defence in their statement Under Section 313 of the Code of Criminal Procedure and hence, the High Court could not have adverted to the same. It is further put forth that even assuming the stand can be considered, in the case at hand the accused persons have miserably failed to discharge the burden in establishing their right of private defence. In this context, we may refer with profit to the pronouncement in Munshi Ram and Ors. v. Delhi Administration, (1968) 2 SCR 455 wherein it has been laid that even if an accused does not take the plea of private defence, it is open to the court to consider such a plea if the same arises from the material on record and burden to establish such a plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record.

FIR No.569/14 State vs Pooja 69 of 73

55.In the case of Vidhya Singh Vs The State of M.P. 1971(3) SCC 244, the Hon'ble Supreme Court observed that neither prosecution nor accused had come out with the truthful version of the incident, however, court can look into the aspect of right to private defence.

56.In view of these discussions it is clear that court can look into the aspect of the right to private defence even where it has not been specifically pleaded by the accused.

57.It is necessary to reiterate here that the IO has neither specified the origin nor the reason of the occurrence of the incident and charge sheet is completely silent on this aspect and it seems that for the purpose of details of the incident the prosecution has solely relied upon the disclosure statement of the accused. It has already been discussed in the preceding paras as to how the incident took place while keeping in view of the entire material placed on record by both the sides. Thus, it is clear from the discussion already made that during an altercation the deceased became aggressive and started suddenly assaulting the accused with the iron rod. It has already been held that on meeting with such a sudden fierce attack the accused lost her temper and in a fit of rage, she assaulted back the deceased with the same object. Keeping in view of the same set of facts and circumstances, it is also to be seen whether under such circumstances, the accused had a right to private defence and whether the assault made by accused can be said to have been made by her in her private defence.

FIR No.569/14 State vs Pooja 70 of 73

58.It has already come on record that in a sudden quarrel the deceased lifted an iron rod from the jhuggi and gave several significant blows on the vital parts of the body of the accused. As mentioned above, the accused suffered several injuries on her head, eyes and face. It is proved on record that the jhuggi was lying latched from inside and the deceased was indiscriminately assaulting on the head and face of the accused. Thus, after getting injuries on her head and face, on one hand the accused would have lost her temper and simultaneously, she would have become worried of her life and limb. Thus, under these circumstances, the accused had a right to exercise her right to private defence and assault the deceased back but only to the extent which was necessary for saving herself from the further assaults of the deceased. The accused had a right to cause such harm to the deceased which was sufficient to make him incapacitated to the extent that he could not have assaulted further. The accused has not taken any specific plea that she had to give the abovesaid number of assaults as even after few blows the accused was trying to make further assaults on her. Under the facts and circumstances discussed above, accused was not supposed to think and articulate her defence and the assault made by her, however, she ought to have caused so much harm which was sufficient to make the deceased incapacitated to the extent that he was not capable enought to assault further and in the meantime, she could have got some help but it is clear that the assaults made by her have been proved to be fatal as three days after the assault, the deceased succumbed to the injuries suffered by him FIR No.569/14 State vs Pooja 71 of 73 during the incident. Thus, under these circumstances, it is held that though accused had a right to private defence but she exceeded her right and thus, her case comes under the Exception 2 of the 300 IPC also. It is respectuflly observed that the case laws cited by the Ld. Legal Aid Counsel are not applicable to the peculiar facts and circumstances of the present case.

59.In the case of Jangir Vs State of Punjab 2018(15) Scale 88, it has been held by Hon'ble Supreme Court that where the accused had a right to private defence, however, he caused more harm than required then such a case is covered in Exception 2 and such an accused is guilty u/s 304 Part­I IPC. The relevant para of this case reads as under:­

11. Further, it is a settled law that the right to private defence cannot be claimed by the accused, if disproportionate harm has been caused, while defending himself or any other person. However, if the accused has not caused disproportionate harm, then the benefit of Exception II to Section 300 of IPC can be given to the accused. This proposition has been well explained in the case of Bhanwar Singh v. State of Madhya Pradesh, (2008) 16 SCC 657 wherein this Court made the following observations ­ "50. The plea of private defence has been brought up by the appellants. For this plea to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death. Hence, if the court were to reject this plea, there are two possible ways in which this may be done. On one hand, it may be held that there existed a right to private defence of the body. However, more harm than necessary was caused or, alternatively, this right did not extend to causing death. Such a ruling may result in the application of Section 300, Exception 2, which states that culpable homicide is not murder if the offender, in the exercise in good faith of the right FIR No.569/14 State vs Pooja 72 of 73 of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. The other situation is where, on appreciation of facts, the right of private defence is held not to exist at all."

CONCLUSION

60.Thus, in view of the aforesaid discussions, the accused Pooja is held guilty and convicted for the offence punishable u/s 304 Part­I IPC.

                                                              (Ajay Gupta)
                                                         ASJ­02/ KKD/East/Delhi
 Announced in open
 court on 28.07.2020




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