Delhi District Court
State vs Dinesh @ Dholu on 7 June, 2017
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL SESSIONS JUDGE 04 : PATIALA HOUSE
COURTS
NEW DELHI.
SC No. 9160/16
FIR No. 361/14
PS - Inder Puri
U/s 302 IPC
State
Vs
Dinesh @ Dholu
S/o Sh. Kanwar Pal
R/o C294, J.J. Colony,
Inder Puri, New Delhi
Date of Institution : 19.02.2015
Date of Arguments : 26.05.2017
Date of Judgment : 07.06.2017
JUDGMENT:
1. Accused has been charged with for having committed offence punishable u/s 302 IPC.
2. In brief the case of prosecution is that on 05.11.2014 at around 10.52 pm DD No. 36A was received in the PS wherein it was recorded that one person has been murdered at Sabzi Mandi wali gali, Inderpuri near Ganga State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 1/60 Maiyaa Mandir. On receipt of said DD ASI Jagdish along with constable Ajeet went to the spot. SHO Inderpuri and IO Inspector Raj Kumar were also informed about the said incident. In the meantime IO Inspector Raj Kumar along with HC Charan Singh and constable Vikas also reached at the spot i.e. H. No. C563, J.J. Colony, Inderpuri, near Sunny Store. There they found huge blood was lying in the gali and one axe was also lying at a distance of about 20 meter near channel gate of H. No. 625, J.J. Colony, Inderpuri. No eye witness was found at the spot. In the meantime, duty officer informed Inspector Raj Kumar that vide DD no. 41A dated 05.11.2014, injured Harish, S/o Nanak Chand, R/o D447, Budh Nagar, J.J. Colony, Inderpuri, aged 32 years had been taken to Metro Hospital, Pandav Nagar by his brother Pankaj and he was brought dead. On receipt of said DD no. 41A Inspector Raj Kumar along with ASI Jagdish and constable Ajit went to the hospital, leaving behind HC Charan Singh and constable Vikas at the spot. MLC no. 52/14 of deceased was collected, wherein it was recorded that "patient state to brought dead condition". Thereafter, IO Inspector Raj Kumar recorded statement of complainant Pankaj, brother of deceased. In his statement Pankaj stated that he was engaged in the State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 2/60 work of book binding. In the year 2009, when he had gone to attend marriage at Madipur, he had a quarrel with accused Dinesh @ Dholu, who was residing in their colony. FIR in this regard was also lodged by Dinesh @ Dholu at PSPunjabi Bagh stating that his eye was damaged by complainant. It was further stated by him in his complaint that due to this reason Dinesh @Dholu used to keep enmity with him. On 05.11.2014 after having dinner, he came out of his house for a walk and in the meantime his younger brother Harish (since deceased) also came out of house. He asked him as to why he came out on which Harish replied that he is going to fetch milk. At this he also went with his brother. At about 10.30 pm his brother Harish was crossing road after purchasing milk from Sunny Store. Complainant was standing across the road opposite Sunny Store. Accused Dinesh @ Dholu came with an axe and attacked his brother with axe from backside. His brother fell on the ground. He ran after accused Dinesh @ Dholu, however, accused escaped in a narrow dark street. It was further stated that thereafter complainant took his brother to Behl hospital at Nariana, where doctors advised him to take his brother to Metro hospital. Thereafter, he took his brother to Metro Hospital, Pandav State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 3/60 Nagar, Delhi, wherein doctor declared him brought dead. It was further sated that accused Dinesh @ Dholu had murdered his brother by giving axe blow. On this statement, case u/s 302 IPC was registered against Dinesh @ Dholu.
3. Thereafter, IO instructed ASI Jagdish Chander and constable Ajeet to shift the dead body to mortuary at Safdarjung hospital and he came back to the spot. Crime team was called at the spot. Photographs of the spot were clicked. Rukka was prepared by the IO and he handed over the same to HC Charan Singh for registration of the case u/s 302 IPC. During investigation, IO prepared the site plan on the pointing out of complainant Pankaj. IO seized from spot one pair of slipper of deceased and one blood stained Tshirt of sky blue colour. Blood stained axe was also seized from near channel gate of H. No. C625, J.J. Colony, Indperpuri.
4. IO received information from ASI Jagdish Chander vide DD no. 43A dated 05.11.2014 to the effect that a call had been received from mobile no. 7838418004 that one person had injured another person at DBlock Bishan Kiryana Store. Thereafter, IO along with ASI Jagdish Chander went to the said spot in search of caller but they State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 4/60 could not find him. The said telephone number was traced and it was found that it was in the name of Gaumti,W/o Kanwar Pal, who is mother of accused.
5. On 06.11.2014, IO reached the hospital and conducted inquest proceedings and moved an application for postmortem. Thereafter, dead body was handed over to the brother of deceased. IO seized Ex.P1 Slipper, Ex.P2 Tshirt and Ex.P3 Axe lying near spot. Kept them in three parcels sealed with his seal. Blood samples were also lifted from spot and kept in three different pulandas. Accused was apprehended from Camp no. 2, Nangloi on 06.11.2014. He was interrogated and was arrested at 8.30 pm. His personal search was conducted and his disclosure statement was also recorded. The clothes worn by accused were also seized by IO. Statement of eye witness Gajender was recorded. Subsequent opinion of doctor on axe was also taken. Scaled site plan was also prepared. After completing the investigation the chargesheet was filed in the court.
6. In view of the allegations against the accused in the charge sheet, charge u/s 302 IPC was framed, to which he pleaded not guilty and claimed trial.
7. After framing of charge prosecution examined State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 5/60 following 23 witnesses to prove offence alleged against accused .
Sl. Name/identity Documents/facts sought to be
No. proved
PW1 Bhagwan Das, uncle of He proved : deceased Harish. Ex.PW1/A - Dead body identification memo.
PW2 Sh. Gaurav, S/o He deposed that on 05.11.2014, Ramesh Kumar - 1st he closed his store at 10.15 pm. informant through After 1520 minutes when he telephone. A person again came out he found a running his shop person lying on ground and blood namely Shiv Shakti was oozing from his head. He General Store in the called the police at 100 number locality. from his telephone. DD no. 36A was registered on his call.
PW3 Eye witness Gajender. At about 10.30 pm when he was He is a public witness, returning back to his house and resident of the same reached near the crime spot, he locality where the saw accused Dholu (correctly complainant PW18, identified) hitting Harish @ Aalu and accused are (since deceased) on his head with State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 6/60 residing. an axe from behind, while Harish @ Aalu was walking.
Harish fell down. Accused ran away from spot along with axe towards CBlock. He rushed towards Harish, who was bleeding from his head. He took out his sky blue colour Tshirt and tied the head of injured Harish with the same.
Meanwhile brother of injured Harish i.e. Pankaj @ Pinki came and started running towards the direction, where accused ran away. He called Pankaj back and asked him to take care of Harish first and to bring his motorcycle to take Harish to hospital.
Pankaj @ Pinki brought his motorcycle. He threw the blood stained Tshirt from the head of injured Harish. Picked up State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 7/60 Harish on motorcycle and along with Pankaj @ Pinki took him to Behl Hospital, Naraina Vihar.
Doctors there asked them to took him to some big hospital. Then they took him to Metro Hospital, Pandav Nagar, where Harish was declared dead. Police also arrived at Metro hospital. Dead body of Harish was shifted to the mortuary of Safdarjung hospital.
He correctly identified and
proved :
Ex.P1 The slippers of deceased. Ex.P2 - T shirt tied by him on the head of injured.
Ex.P3 - The axe through which accused gave blow on the head of deceased.
PW4 HC Rakesh. Duty He proved : officer, PSInderpuri, Ex.PW4/A - Copy of DD entry working on 06.11.2014 no. 4A dated 06.11.2014 through State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 8/60 from 12 midnight to 8 which this case FIR no. 361/2014 am. was got recorded on a rukka sent by IO PW23 Inspector Raj Kumar at 1.45 am through HC Charan Singh.
Ex.PW4/B - Copy of the case FIR.
Ex.PW4/C - The rukka received by him bearing his endorsement.
Ex.PW4/D - Copy of DD no. 5A through which copy of FIR and rukka were sent to PW23 IO Inspector Raj Kumar.
Ex.PW4/E - Certificate u/s 65 B of the Indian Evidence Act.
Ex.PW4/F - DD No. 6A through which copy of FIR was sent to Ilaka Magistrate and to senior police officials.
PW5 Constable Giriraj. He testified delivery of urgent Posted at PSInderpuri Dak received from duty officer on 06.11.2014. vide DD no. 6A, which was State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 9/60 handed over to Ilaka Magistrate, Joint CP and DCP SouthWest at their respective residences.
PW6 HC Narender, posted He proved : as MHC(R ), PS Ex.PW6/A - Copy of FIR no. Punjabi Bagh. 119/2009, P.S. Punjabi Bagh registered against complainant PW18 Pankaj at the instance of accused for alleged injury to accused caused by complainant in the year 2009.
PW7 HC Raghubir Singh, He proved : posted at PSInderpuri Ex.PW7/A - RC no. 86/21/14 as MHC(M). through which, on 31.12.2014, pullanda of viscera of deceased Harish along with sample seal and forwarding letter was delivered to PW9 constable Rakesh Kumar for onward deposition at FSL Rohini.
Ex.PW7/B RC No. 1/21/15 dated 05.01.2015 through which another sealed pullanda was State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 10/60 handed over to PW9 constable Rakesh.
He deposed that till the time case property was in his possession it was not tampered and constable Rakesh handed over the acknowledgement of receipt of RC to him.
PW8 Constable Ajeet Singh. He deposed that on receiving DD He was posted at PS no. 36A on 05.11.2014 he along Inderpuri on with IO PW23 and other police 05.11.2014 and joined staff reached at the spot near the investigation with Sunny store, C563, J.J. Colony, IO PW23 Inspector Inderpuri. The police team found Raj Kumar. a pool of blood, one sky blue colour Tshirt and one slipper lying there. At a distance of 20 meters in a small dark street one blood stained axe was lying in front of channel gate of H. No.
665. They came to know that injured was shifted to Metro State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 11/60 hospital. Constable Vikas and HC Charan Singh were left at the spot. He along with ASI Jagdish and IO went to Metro hospital. IO obtained MLC of victim Harish, who was declared brought dead. Dead body was shifted to mortuary of Safdarjung hospital in government vehicle. He along with ASI Jagdish remained present at mortuary for taking care of dead body. In the next morning postmortem of dead body was conducted.
He also identified Ex. P1 i.e. the slippers, Ex.P2 i.e. the Tshirt recovered from near the spot and Ex.P3 i.e. the axe recovered 20 meters away from the spot.
PW9 Constable Rakesh He corroborated testimony of Kumar. He was posted PW7 HC Raghubir Singh and State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 12/60 at PSIndperpuri in testified about his receiving two December pullandas vide RC no. 86/21/14 2014/January, 2015. dated 31.12.2014 Ex.PW7/A and RC No. 1/21/15 dated 05.01.2015 Ex.PW7/B and their deposition to FSL Rohini.
PW HC Charan Singh. He He deposed that on 05.11.2014 10 was also posted at PS on receiving DD no. 36A he with Inderpuri and joined constable Vikas and Inspector investigation with IO Ram Kumar reached at spot PW23. near Sunny Store, where blood was found lying. PW21 ASI Jagdish and PW8 constable Ajeet also arrived there. Ex.P1 i.e. the slippers, Ex.P2 i.e. the sky blue T shirt were found at the spot. Ex.P3 i.e. blood stained axe was found lying in front of Channel gate of H. No. C 625, JJ colony, Indperpuri.
Part of testimony of this witness is in similar lines as that of PW State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 13/60 8 except that this witness stated that Ex.P3 i.e. axe was found lying in front of channel gate of H. No. C 625, whereas, PW8 stated H. No. C665.
He further deposed that IO PW 23 prepared rukka and handed over same to him at about 1.30 am for registration of FIR. He took the same to PS and at about 1.45 am handed over the same to duty officer PW4 HC Rakesh.
After registration of FIR, he obtained a copy thereof, original rukka and certificate u/s 65B of Indian Evidence Act and came back to spot at about 2.45 am and handed over all documents to IO Inspector Ram Kumar.
Then he along with IO searched for accused. Accused was arrested by IO. On personal State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 14/60 search of accused Rs.400/ were recovered. Accused made disclosure statement and handed over his wearing clothes to IO which were seized by him.
He proved : Ex.PW10/A - Arrest memo of accused.
Ex.PW10/B - Personal search memo of accused.
Ex.PW10/C - Disclosure statement of accused.
Ex.PW10/D - Seizure memo of clothes worn by accused at the time of his arrest.
Ex.PW10/E - Pointing out memo of the place of incidence prepared at the instance of accused.
All the documents proved by this witness were bearing his signatures at point A of the document (s).
State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 15/60 PW ASI Jagat Singh. He is He proved : 11 record clerk in the Ex.PW11/A(colly) CPCR forms office of ACP South numbers 05NOV.141320584, Zone, Katwaria Saria. 05NOV.141150445, 05NOV.141310166, 05NOV.141400533 all dated 05.11.2014, recording call details of this incidence at Police Control Room.
Ex.PW11/B - Certificate u/s 65 B of Indian Evidence Act qua Ex.PW11/A. PW Sh. Yogender. He is a He deposed that he has been 12 resident of Budh using mobile no. 9871674696 Nagar, Inderpuri. with SIM card issued in the name of his friend Vijay @ Vicky.
On 05.11.2014 at about 10.30 am he was standing at the corner of a park. 23 passersby were going who were talking that a quarrel had taken place in Sabzi Mandi.
He reached there and found State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 16/60 blood in huge quantity lying in front of Sunny Store. Father of injured Harish (since deceased) was also present there. He asked this witness to make a phone call, accordingly he made a call to police at 100 number. Police recorded his statement.
PW Dr. Ashish Kumar, He deposed that on 06.11.2014 13 Senior Resident, he was posted as Senior resident Department of in the department of forensic Forensic Medicine, and medicine and conducted Toxicology, Safdarjung postmortem on dead body of hospital. deceased Harish Kumar. Cause of his death was shock as a result of antimortem cranio cerebral damage produced by heavy blunt object. All injuries were antimortem in nature.
Injury no. 2, 3 and 4 were sufficient to cause death both individually as well as State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 17/60 collectively in ordinary course of nature.
He further deposed that on 09.12.2014, IO had moved an application seeking subsequent opinion regarding weapon of offence and also produced sealed pullanda with seal of RK and bearing particulars of case containing the axe. He duly examined weapon of offence and perused postmortem report. He opined that injury no. 1, 2, 3 and 4 could be produced by examined weapon. He also prepared a sketch of the axe examined by him.
He proved : Ex.PW13/A - Postmortem report.
Ex.PW13/B - Application of IO seeking subsequent opinion State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 18/60 regarding weapon of offence.
Ex.PW13/C - His opinion on that application.
Ex.PW13/D - Sketch of the axe i.e. weapon of offence.
PW HC Ashok Kumar. He He deposed that on the 14 was posted as intervening night of 05/0611 photographer district 2014 on a call of IO of this case, crime team South he along with Incharge crime West, Sector9, team ASI Pradeep Kumar and Dwarka in the year finger print expert ASI 2014. Kulbhushan Bisht, reached the spot. He clicked 18 photographs of spot from different angles.
Developed the positives of the same and handed over the photographs to IO.
He proved : Ex.PW14/A1 to A18 -
Photographs of the spot.
Ex.PW14/B1 to B18 -
State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 19/60 Negatives of said photographs.
PW Constable Vikas. He Part of his testimony is on 15 was also posted at PS similar lines with PW10. He Inderpuri on also accompanied IO to the crime 05.11.2014 and joined spot and in proceedings investigation with IO. conducted at that place.
He deposed that axe was found in front of channel gate of H. No. C625, J.J. Colony, Indperpuri. He also deposed about seizure of slippers, T shirt and axe by IO.
He further deposed that IO collected the blood lying at the spot and put the same in plastic dibbi. IO also collected the earth control as well as blood stained earth control, put the same in separate plastic dibbis and sealed the same with his seal.
Thereafter IO seized the same vide Seizure Memo Ex.PW15/C and recorded statement of this State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 20/60 witness.
On 09.12.2014 he again joined the investigation when IO gave him a forwarding letter along with enclosures in which subsequent opinion regarding weapon of offence was sought from VMCC, Safdarjung hospital. He collected sealed parcel from MHC(M) containing the weapon of offence and left for hospital after recording his departure vide DD no. 24B dated 09.12.2014. He deposited the said sealed parcel along with forwarding letter in the said hospital and came back to PS vide arrival DD no. 36B dated 09.12.2014.
On 01.01.2015 he again joined investigation and on directions of IO, went along with authority State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 21/60 letter to VMCC Safdarjung hospital to collect the subsequent opinion vide departure DD no.
37B. He collected one sealed parcel with sample seal and papers from the hospital and came back to PS vide arrival DD no. 39B and deposited the sealed parcel with MHC(M). The papers/susbequent opinion was handed over to Inspector Raj Kumar. His statement was also recorded by IO.
PW Constable Hardeep He deposed that on 06.01.2015 16 Singh. He was working as per instructions of IO he went in mapping section, to PSInderpuri and DCP office, Dwarka. accompanied the IO to the spot.
As per instructions of IO he prepared rough notes and measurement at the spot. Then he prepared scaled site plan and destroyed rough notes and State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 22/60 measurements. Scaled site plan was then handed over to IO Inspector Raj Kumar.
He proved : Ex.PW16/A - Scaled site plan.
PW Ms. Anju Bala. She is She deposed that on 05.11.2014 17 the sister of deceased at about 10.38 pm she was at her Harish. home. She heard noise and some persons were beating shutter of her house saying someone had killed her brother Harish in Sabzi Mandi and ran away. She immediately went there and found her brother Harish lying in the gali. He was bleeding from head. Seeing his condition she became unwell and came back home and made a phone call at 100 number from her mobile no.
8800774072. On 09.01.2015 police inquired from her and recorded her statement.
PW Pankaj @ Pinki. He is He deposed on the lines of his State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 23/60 18 elder brother of complaint, on the basis of which deceased Harish and FIR was registered. He correctly was living in the same identified accused, Ex.P1 i.e. house. slippers of deceased, Ex.P2 i.e. T shirt of PW3 Gajendra, Ex.P3 i.e. weapon of offence. His testimony would be discussed at appropriate stage.
He proved : Ex.PW18/A - His statement recorded by IO.
Ex.PW18/B - Site plan prepared by IO at his instance.
Ex.PW18/C - His dead body identification statement recorded by IO.
Ex.PW18/D - Dead body handing over memo.
PW Dr. Bharat Kumar He deposed that on 05.11.2014, 19 Dholu. He was CMO at when he was posted as CMO at RLKC Hospital, Metro RLKC Hospital, Metro Heart Heart Institute, Institute, at about 11.25 pm one State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 24/60 Pandav Nagar on patient Harish, S/o Sh. Nanak 05.11.2014. Chand was brought to the casualty of the hospital by ASI Jagdish Chand with alleged history of physical assault at 10.30 pm. Patient was brought unconscious. His BP and pulse rate were not recordable. He was declared brought dead. During examination he noticed deep lacerated wound on paritoccipital (10 12 cm x 34 cm) and ENT bleeding positive.
He prepared detailed MLC of patient.
He proved : Ex.PW19/A - MLC prepared at Metro Hospital.
PW HC Rajinder Kumar. He brought PCR call record of 20 Record Branch, four calls made at no. 100 in Katwaria Saria, New connection with this case. He Delhi. deposed that on 05.11.2014 first State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 25/60 call was made from phone no.
9871674696 (belonging to PW12 Sh. Yogender) at about 22:52:41 hours. Second call from phone number 8800774072 at 22:54:16 hours (belonging to PW17 Anju Bala). Third call from mobile no. 7838418004 at 23:36:06. Fourth call from mobile no. 9958621221 at 22:54:09.
He proved : Ex.PW20/A to Ex.PW20/D - PCR forms pertaining to above mentioned calls.
Ex.PW20/E - Certificate u/s 65 B of Indian Evidence Act qua these calls.
PW ASI Jagdish Chander. He deposed that he joined 21 He was also posted at investigation with IO after PSInderpuri. reaching at the spot along with PW8 constable Ajeet on 05.11.2014 on receiving of DD State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 26/60 no.36A. His testimony qua the facts observed at the spot and investigation conducted by IO is similar to other police witnesses who joined investigation. In addition thereto he also stated that on 06.11.2014 he along with Inspector Raj Kumar visited the mortuary of Safdarjung hospital. Doctors there, handed over three sealed parcels with the seal of forensic department Safdarjung hospital along with two sample seals which were taken into possession by IO vide Seizure Memo Ex.PW21/A. He also identified accused and case property Ex.P1, Ex.P2 and Ex.P3.
He proved : Ex.PW21/A - Seizure Memo of parcels and sample seals State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 27/60 received from Safdarjung hospital.
PW Amarpal Singh, He deposed that on 31.12.2014 22 Assistant Director, one sealed wooden box labelled Chemistry FSL, as PMR no. 1860/14, containing Rohini. viscera of Harish Kumar was marked to him for examination.
The seals on the wooden box were found intact and tallied with the forwarded specimen seal. The details of exhibits were mentioned in his detailed report as Mark 1A, 1B, 1C and 1D.
After examination the remnants of exhibits were sealed by him with the seal of APS FSL DELHI. As per result of examination On chemical, Microscopic, TLC and GCHS examination, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 28/60 barbiturates, tranquillizers and pesticides could not be detected in exhibits '1A', '1B', '1C' and '1D'.
He proved : Ex.PW22/A - Report prepared by him.
PW IO Inspector Raj He has deposed on the lines of 23 Kumar, IO of the case. prosecution case and testified about the steps taken by him for investigation and the investigation proceedings. He also identified accused and case property Ex.P1, Ex.P2 and Ex.P3.
He proved : Ex.PW23/A - Rukka sent by him for registration of FIR.
Ex.PW23/B - Copy of application addressed by him to CMO for getting the dead body preserved for 72 hours.
State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 29/60 Ex.PW23/C - Application for postmortem.
Ex.PW23/D - Form no. 25.35 (B), filled up by him regarding inquest proceedings.
Ex.PW23/P1 - Pant with belt of accused, seized by him during investigation.
Ex.PW23/P2 - Shirt of accused, seized by him during investigation.
8. No crossexamination of PW1, PW4, PW5, PW6, PW7, PW14, PW16, PW20 and PW22 was conducted. The relevant portion of crossexamination and other relevant testimony of witnesses relied upon by Ld. counsel for accused would be discussed at appropriate stage.
9. In his examination u/s 313 Cr.PC all the incriminating evidence was put to accused which he denied and stated that he was innocent and had been falsely implicated in this case by police officials in connivance with complainant Pinki @ Pankaj as he had lodged a case State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 30/60 against him, hence, in order to put pressure upon him complainant had indulged him in this case falsely to settle his score. In reply to evidence that he caused injuries to deceased Harish and ran away, he stated that due to the impact of injuries received by him in 2009, his left eye was totally damaged and due to infection in his right eye, he was unable to see the things properly in day time also. During night he always remained at his home and he has to take help of his family members even if he has to go to urine in the night time. He stated that it was therefore impossible for him to go outside during night time and run away after hitting somebody.
10. In his statement u/s 313 Cr.PC accused stated that he wanted to lead evidence in his defence. However, vide statement of his counsel recorded on 24.08.2016 and the order sheet of even date, he opted not to lead any defence evidence and DE was closed.
11. I have heard arguments addressed by Sh. S.K. Kain, Ld. Addl. PP and Sh. Suresh Sisodia, Ld. Amicus Curiae and have also gone through the material available on record.
12. From the evidence available on record as well as on the basis of arguments advanced by Ld. Addl. PP and Ld. State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 31/60 Defence counsel, following points for determination emerge in the case: POINTS FOR DETERMINATION:
1) Whether PW3 Gajender and PW18 Pankaj are planted witness by the prosecution and have not witnessed the incidence.
2) Whether the spot investigation was not conducted in the case, if so its effect?
3) Whether the injuries to injured/deceased Harish were caused by the weapon of offence?
4) Whether accused was not capable of causing the incidence due to defect in his vision?
5) Whether prosecution has been able to prove its case against accused beyond reasonable doubt, if so for which offence (s)?
13. Ld. counsel for accused in support of his submissions has submitted that PW3 and PW18 were not eye witnesses. He has drawn attention of the court to the testimony of these witnesses and has submitted that their testimony is full of contradictions in itself and is also in contradiction with other witnesses.
14. Ld. Sh. Suresh Sisodia has submitted that as per testimony of PW18 brother of deceased, he accompanied State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 32/60 deceased, when deceased Harish was going to buy milk. When deceased Harish was returning after taking milk, accused hit him with an axe. Sh. Sisodia submits that the presence of PW18 is not possible on the spot, because had he been there he must have attempted to save his brother.
15. Court is in agreement with submissions of Ld. Addl.
PP that as per the site plan Ex.PW18/B, PW18 and deceased Harish were at different points and only one axe blow was given by accused on the head of deceased, therefore, there was no occasion or chance with his brother PW18 to attempt to save the deceased or to stop the accused from hitting him. As per site plan corroborated with oral testimony of complainant PW18, he was waiting on one corner of road whereas, deceased had gone across the road to buy milk. Accused hit one blow of axe on the head of his brother. The natural conduct of PW18 could have been either to attempt to help his brother or to catch hold of the assailant. Initially PW18 ran behind the accused to catch him. He could not succeed and then he returned to the spot.
16. In such circumstances, court do not find any substance in the submissions of Ld. defence counsel, that because PW18 did not attempt to stop accused from State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 33/60 hitting the deceased or he allegedly ran behind the accused instead of helping his brother, his presence on the spot is doubtful.
17. In further support of his contention Ld. Sh. Sisodia, has submitted that eye witness PW3 did not state in his testimony that prior to alleged hitting by accused, he noticed presence of PW18, similarly, PW18 did not saw PW3 present at the spot.
18. Again considering the location of PW18 and the deceased it is quite possible that a person may notice only one of them as deceased was walking at one corner of the road at Tcrossing, whereas, PW18 was standing on other side. Further more it is a question of focus of an individual. At relevant time PW18 had come along with his brother. He might not have noticed the presence of PW3. Otherwise also when a major attack was made on his brother, PW18, cannot be expected to note the minute details of all persons present around the spot. It is important to mention that as per the testimony of PW3 he was at a distance of 2025 steps from the spot, when he noticed the incidence. In such circumstances, it is not necessary that PW3 and PW18 would notice each other at the time of or prior to the alleged hitting of accused against deceased Harish.
State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 34/60
19. Counsel for accused further submitted that PW2 Sh. Gaurav, who deposed that he found a crowd opposite Sunny Store at some distance from his house and further saw that one person was lying on ground and blood was oozing from his head, in his crossexamination stated "When I had gone near the body none of the family members of the deceased were present near it. I know the family members of the deceased by their faces but not their names. After making the PCR call I went back home to inform my mother about the incident. I then went back to the spot. The family members of the deceased had come thereafter, after some time. Some persons gathered at the spot informed the family members of the deceased after which they had come".
20. Counsel for accused submits that DD No. 36A, on the basis of which the investigation was started, was recorded on the telephonic information of PW2, when he did not notice the presence of family members of deceased on his first visit to spot, PW18 who is brother of accused, must have been planted by prosecution lateron.
21. Court is not in agreement with the submissions of Ld. counsel for accused. Considering the testimony of PW3 as well as PW18, PW18 first ran to chase the accused. It is State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 35/60 possible that during this time PW2 visited the spot. Meanwhile, public persons were already present there. In same paragraph of his crossexamination which was relied upon by Ld. counsel for defence, this witness stated "I do not know any Gajender, S/o Bhagwan Dass, R/o D453, J.J. Colony Inder Puri". It is quite possible that PW3 Gajender was already present at the spot when PW2 visited the same and PW18 had gone to chase accused, therefore, PW2 did not see any family member of deceased and could not identify the presence of PW3. Merely because PW2 stated that he did not notice the presence of PW18 on the spot, his witnessing the incidence does not become doubtful. It is worth to mention here that when PW2 came back at the spot after going to his home, he stated that he noticed the presence of family members of deceased but it is not stated that the body of deceased was also lying at the spot. Hence, it appears that when he first witnessed the scene of crime, the public persons including PW3 Gajender were present, when he visited the spot again deceased was taken to hospital by PW3 and PW18 but other family members had arrived.
22. Similarly, further contention of counsel for accused in this regard is upon relying testimony of PW17 Ms. Anju State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 36/60 Bala. As already observed this witness stated that she was at her home at 10.30 pm on the fateful day. She heard noise and some persons were beating the shutter of her house saying that someone had killed her brother in Sabzi Mandi and ran away.
23. Counsel for accused has submitted that in contrast to the testimony of this witness PW18 stated that after giving a brief chase to accused, he came back at the spot and then went to his house to bring a motorcycle to take his injured brother to hospital. He submits that had the PW18 gone to his house, he must have informed the members of house about the incidence and therefore, there was no occasion with PW17, sister of deceased and complainant to come to know about the incidence from some other persons and not from his brother.
24. Court is of the opinion that it is rightly submitted by Ld. Addl. PP that in the emergent situation, as narrated by the witnesses, it is not uncommon that the real brother of injured/deceased would not waste any moment except for saving the life of his brother. It is therefore, not uncommon that PW18, had not informed PW17 about the incidence. Otherwise also no crossexamination of PW18 has been conducted on the point as to whether he informed his State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 37/60 family members, if not so, why not? What is the size of his house? How different persons are living and in which portion? Whether it is possible to take out his motorcycle without disturbing the others. From the facts in totality it appears that deceased and his brother PW18 were living in joint family house. Hence, this point also, raised by counsel for accused, does not make the witnessing of incident by PW18 doubtful.
25. Name of PW18, is mentioned in the MLC Ex.PW19/A prepared at Metro Heart Institute, where the deceased was taken, as a person who accompanied the patient. In view of the testimony of PW3 and PW18, which is free from any material contradiction and the document available on record this court has no reasonable doubt about the incidence being witnessed by PW3 and PW18. Hence, all arguments advanced by Ld. counsel for accused on this point cannot be given much weightage in the facts and circumstances of the case.
26. It is next submitted by Ld. counsel for accused that all proceedings were done by police officers while sitting in the PS. For this he has submitted that as per the allegations of prosecution, deceased Harish had went for purchasing the milk and when he was returning after purchasing the milk, State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 38/60 he was attacked by accused. There is no recovery of milk or the pot of milk, in which the deceased was carrying milk. He has also submitted that PW8 in his examination in chief has stated that the blood stained axe i.e. weapon of offence was recovered in front of channel gate of H. No. 665, J.J. Colony, Inderpuri, Delhi, whereas other witnesses have stated that the same was recovered from in front of channel gate no. 625, J.J. Colony. He has also submitted that the seizure memo of axe do not bear the signature of any public witness though all witnesses have admitted that lot of public persons had assembled at the place of incident. He further submitted that there is a contradiction in the description of the alleged government vehicle, through which the police officials visited the spot. PW10 HC Charan Singh stated "we had gone to the spot by government gypsy no. DL 1CJ 3209". PW21 ASI Jagdish Chander stated "registration number of vehicle by which we reached at spot is DL 6S AA 2677". Per contra PW15 constable Vikas stated "the last digits of the registration number of official vehicle are 8438".
27. Counsel for accused has also drawn the attention of court on crossexamination of PW8 contable Ajeet Singh, State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 39/60 where he stated "in my presence IO did not inquire from any public persons regarding the incident or recorded statement of any public persons. Sky blue Tshirt belongs to the injured". He has submitted that as per the case of prosecution the sky blue Tshirt Ex.P2 belongs to PW3 Gajender and not to injured/deceased.
28. Counsel for accused, therefore, submitted that no spot proceedings were conducted by the police.
29. PW14 HC Ashok Kumar is the photographer who had visited the spot on the intervening night of 5/6.11.2017 on call of IO PW23 Inspector Raj Kumar with Incharge crime team ASI Pardeep Kumar. He clicked 18 photographs at the spot Ex.PW14/A1 to Ex.PW14/A18. No crossexamination of this witness was conducted. His testimony remained unrebutted. The photographs themselves reflect the crime scene. Ex.P1 i.e. the T shirt of PW3 Gajender, Ex.P2 i.e. Slippers are apparent in the photographs nearby huge pool of blood. The axe Ex.P3 is also shown in the photograph. Blood samples lying at spot were collected and sent for FSL result. Hence, it cannot be said no spot proceedings were conducted by the police or the investigation was done while sitting in the PS. So far as, the different registration number of government State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 40/60 vehicle, as deposed by different witnesses are concerned, it has to be kept in mind that two police teams had left to the spot separately, one led by IO PW23 Inspector Raj Kumar and another led by PW21 ASI Jagdish. Hence, PW21 did not reach at the spot along with IO PW23.
30. However, both the police teams met at the spot.
Hence, two government vehicles might be involved. Hence, two different registration numbers are bound to surface on record.
31. Otherwise also keeping in view the time gap as well as the status of the constables PW10 and PW15 involved in the investigation on the directions of the IO, they are not expected to remember all minute details including the complete registration number of vehicles involved in investigation. Hence, no benefit of this fact can be given to the accused. Similar is my opinion qua the testimony of PW8 in which he stated that the weapon of offence was found in front of channel gate of H. no. C665 instead of H. No. C625. It may be mere slip of tongue when this witness stated incorrect house number. Similarly, when all witnesses including public witnesses PW3 and PW18 as well as police witnesses have stated that the sky blue T shirt was belonging to PW3, not much weightage has to be State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 41/60 given to the statement of PW8 in crossexamination when he stated that it belonged to the injured. Otherwise also PW8 had reached the spot after PW3 had already thrown his Tshirt from the head of injured Harish. Therefore, the testimony of PW3 or that of PW18, who witnessed PW3 tying his Tshirt on the head of injured are relevant on this aspect and not that of PW8, who did not witness the incidence. Testimony of all other witnesses is coherent on this aspect. Even non witnessing of seizure memo of the weapon of offence by public witnesses cannot be fatal to the case of prosecution, if the same is independently established. All suggestions qua the investigation, not being properly conducted are denied by prosecution witnesses. No material contradiction is brought on record during crossexamination of witnesses. Major testimony, including the complete testimony of PW14 HC Raj Kumar, photographer who took the photographs of the spot at the instance of IO, PW7 who handed over sealed pullandas for being taken to FSL, PW4 duty officer who registered FIR on rukka and sent back the copy of FIR and original rukka to the spot have remained unrebutted. Hence, it cannot be said that no spot investigation was conducted by police.
32. In support of his arguments that prosecution has State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 42/60 failed to establish that injuries were caused by Ex.P3 i.e. axe allegedly recovered by IO, Ld. defence counsel has submitted that as per the testimony of PW3 and PW18 only one blow was given by accused on the head of deceased. As per the testimony of PW13, the doctor conducting the postmortem examination on the body of deceased, four injuries no. 1, 2, 3 and 4 were found on his head. He submits that prosecution is unable to explain how the four injuries occurred on the head of deceased, when accused had allegedly given only one blow by Ex.P3. He has also drawn the attention of the court to testimony of PW19 Dr. Bharat Kumar Dholu who prepared initial MLC of deceased at Metro Hospital Ex.PW19/A. He noticed only one injury i.e. deep lacerated wound on paritoccipital (10 12 cm x 34 cm). Counsel for accused, therefore, submits that prosecution is therefore unable to explain as to how the only one injury noticed by PW19 changed to four injuries in the postmortem report.
33. Court is in agreement with the submissions of Ld. Addl. PP that in his crossexamination PW19 himself stated "I only examined the head of the patient and his vitals and found him to be brought dead on arrival". In the facts and circumstances when there was a large pool of State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 43/60 blood around the wound and the patient was brought dead, it is possible that PW19 had not noticed the injuries in detail or had not performed his duties properly but no benefit for the same can be extended to accused as his testimony that accused was brought dead has remained unrebutted. There was no purpose of anybody inflicting further injury on the dead body of deceased. In detailed postmortem report injuries number 1, 2, 3, and 4 were observed by PW13. Though this witness in his cross examination stated "The injury no. 1, 2, 3 and 4 present on the body of deceased cannot be caused in one go" but in the next sentence he stated "It is correct that the injury no. 1 could be produced due to fall. It is wrong to suggest that injury no. 2, 3, and 4 can be produced by any stone. In the present case if any other weapon i.e. hammer is of the same dimension as that of the weapon i.e. the axe examined in the present case, the injuries no. 2, 3 and 4 can be caused. Vol. The dimensions of injuries no. 2, 3 and 4 very well correspondence with the weapon of offence i.e. the axe in present case. The death in the present case could be caused by single injury i.e. injury no. 2, 3, and 4 as well as collectively".
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34. In his examination in chief this witness categorically stated that on request of IO he examined the alleged weapon Ex.P3 and opined that injuries could be produced by the examined weapon and injury no. 2, 3, and 4 were sufficient to cause death both individually as well as collectively in ordinary course of nature.
35. There is no crossexamination of this witness on this aspect and his testimony on these points is unrebutted. Otherwise also no material contradiction could be brought out in rest of his crossexamination. In view of the opinion Ex.PW13/C of PW13 after examination of the alleged weapon of offence and his unrebutted testimony on this aspect, the court has no hesitation to hold that the injuries on the body of deceased were caused by the alleged weapon of offence Ex.P3.
36. Next defence taken by Ld. counsel for accused is that the accused is not capable of hitting any person and then running away because in the year 2009, his left eye was totally damaged and he was not able to see things properly in day time. During night he is dependant on his family members even to attend nature's call.
37. Similar plea was taken by accused in his statement u/s 313 Cr.PC when accused also chose to lead evidence in State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 45/60 defence.
38. When straight and clinching evidence has surfaced on record against the accused and accused intended to believe the court on some facts which render him incapable of doing the acts burden of proving such facts was on accused. Section 103 of Indian Evidence Act, 1872 is produced as follows : Section 103. Burden of proof as to particular fact - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
39. In order to prove these facts, one defence witness i.e. Dr. Nupur, RPC, Dr. Rajender Prasad Centre for Opthalmic Science from All India Institute of Medical Sciences, with treatment record of accused was summoned, competent doctor from AIMS had appeared in the court on 24.08.2016, but then accused expressed his intention not to examine said doctor or any other witness in his defence.
State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 46/60 Hence, defence evidence was closed vide order dated 24.08.2016 and after recording statement of Ld. counsel for accused.
40. When accused himself chose not to examine the doctor treating him or to bring his medical document on record, and there is no circumstance brought on record, upon which the court can conclude that the accused was suffering from vision defect of such a nature to incapicitate him to see things in day/night time, the court cannot presume the existence of such incapacity.
41. Rather u/s 114 of the Indian Evidence Act, the court may presume that medical evidence or medical record, if could have been produced by accused, might have been unfavourable to him. Section 114 illustration (g) of Indian Evidence Act is reproduced herein below:
114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 47/60 case.
(a) ........
(b) ......
(c) ......
(d)......
(e)......
(f)......
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
42. The accused is being tried for offence which may involve capital punishment. The prosecution witnesses are being crossexamined in detail. In such circumstances, accused choosing not to bring on record his medical/treatment documents or examining any ophthalmologist to prove the defence taken by him that he was incapable of doing the act as alleged, raises a presumption that had such evidence come on record, same would have been against the accused.
43. Hence, the accused has miserably failed to prove this fact. Hence, it cannot be said that accused was not capable State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 48/60 of doing alleged act due to some vision defect.
44. Hence, this court do not see any defence proved by accused on record about his incapacity or about his otherwise not doing the offence.
45. It is however, rightly submitted by Ld. Amicus that even in the absence of any defence by accused, case of the prosecution has to stand on its own legs and prosecution cannot be given benefit of the weakness of defence.
46. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is in favour of the accused should be adopted (Vide Kali Ram Vs State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan VS Raja Ram, (2003) 8 SCC 180; Chandrappa and ors. Vs State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs State of Orissa, (2015) 11 SCC 124 and Golbar Hussain and Ors. Vs State of Assam and Anr., (2015) 1 SCC 242).
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47. It is submitted by Sh. Suresh Sisodia, Ld. Amicus that despite availability of large number of public witnesses, the same are not named in chargesheet nor examined by prosecution. He has drawn the attention of the court to the crossexamination of PW2, when he stated "I know the owner of Sunny Store. The store was open and owner of Sunny Store was present at that time".
48. Ld. Sh. Sisodia therefore submitted tha the best possible witness of the incidence could have been the owner of Sunny Store, who has not been cited or examined by prosecution.
49. Court is in agreement with the submissions of Ld. Addl. PP that at this stage court is not required to see how many additional witnesses could have been cited or examined in the case. The court cannot be oblivious of the general reluctance of public persons to depose in legal cases. The court has to examine the testimony of the witnesses brought by the prosecution.
50. Unnecessary multiplication of witnesses repeating the same incidence was otherwise also not required. In this regard reliance is also placed on the judgment delivered by Hon'ble Apex Court in Harbeer Singh Vs Sheeshpal and State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 50/60 Ors, Criminal Appeal Nos. 16241625 with State of Rajasthan Vs Sheeshpal and ors., Criminal Appeal Nos. 217218 of 2013, wherein Hon'ble Apex Court observed :
20.However, we do not wish to emphasize that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily bases on the evidence of seemingly interested witnesses. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement.(emphasis supplied).
51. Further, in Raghubir Singh Vs State of UP (1972) 3 SCC 79,it has been held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses.
52. In the case in hand PW18 is independent public State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 51/60 witness and is resident of same locality, where accused and deceased resided. There is no enmity between PW3 and accused to falsely implicate him in the present case. There is not even any suggestion in the crossexamination of this witness as to why this witness would falsely implicate the accused.
53. PW3 and PW18 have been coherent in their testimony that accused had inflicted injury on the head of deceased by axe Ex.P3 and then ran away from the spot. No material contradiction could be brought in their cross examination. Their testimony is corroborated by medical evidence. PW13 categorically stated that injuries on the head of deceased could have been caused by the weapon Ex.P3, examined by him through which accused allegedly hit deceased Harish. He further opined that the injuries no. 2, 3 and 4 were sufficient to cause death both individually as well as collectively in ordinary course of nature. Deceased was declared brought dead after the injuries, when he was taken to the hospital. FSL examination of the weapon of offence as well as the clothes worn by accused at the time of offence is positive for the presence of blood of deceased. Court do not see any reason to discard the testimony of PW18 merely because he is the brother of State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 52/60 deceased or that there was a previous enmity between him and the accused, or that the accused had registered an FIR against him. Otherwise also sole testimony of PW3 who is an independent witness is straight and without any contradiction which proves that the accused caused the injuries on the body of deceased, which were sufficient in the ordinary course of nature to cause his death. Viscera examination of sample from deceased was negative for any poison. Cause of death was the injury inflicted by accused.
54. The next point for determination is whether the prosecution has proved the offence of murder against the accused or accused is guilty of any other offence.
55. Ld. counsel for accused has submitted that accused allegedly gave only one blow to the deceased. Thereafter, he allegedly ran away. He did not take benefit of falling down of deceased. He did not hit the deceased again though the alleged weapon of offence i.e. axe was in his hand. Ld. Sisodia, submits that these facts sufficiently reflect that accused had no intention to cause death of deceased.
56. Court is not in agreement with submissions of Ld. defence counsel. In the case of Pulicherla Nagaraju @ Nagaraja Reddy Vs State of Andhra Pradesh, (2006) State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 53/60 11 SCC 444, the Hon'ble Supreme Court enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part of the accused. The Court observed as under : "...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word of even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy, or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 54/60 cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section 302, are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 55/60 quarrel or sudden fight or free from all fight; (vi) whether the incident occurs by chance or whether there was any pre meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention ...".(emphasis supplied).
57. Further, in the case of State of Rajasthan Vs Dhool State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 56/60 Singh, (2004) 12 SCC 546, the Hon'ble Supreme Court has observed that in order to determine whether there was intention to kill or not is to be determined while keeping in mind whether the injury was caused on vital body part and the nature of the weapon used. The number of injuries inflicted shall be irrelevant. The relevant part of the judgment is reproduced as under : "13. In regard to the finding of the High Court that the prosecution has not even established that the respondent herein had acted with an intention of causing death of the deceased we must note that the same is based on the fact that the respondent had dealt a single blow which according to the High Court took the act of the respondent totally outside the scope of Exception I to Section 300 IPC. Here again we cannot agree with the finding of the High Court. The number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 57/60 the nature, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case it is true that the respondent had dealt one single blow with a sword which is a sharpedged weapon measuring about 3 ft. in length on a vital part of body namely the neck. This act of the respondent though solitary in number had severed sternoclinoid muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with a sharpedged weapon would cause death. Such an injury in our opinion not only exhibits the intention of the attacker in causing the death of the victim State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 58/60 but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing death of the victim, therefore, is wholly erroneous and cannot be sustained". (emphasis supplied).
58. Coming to the case in hand accused had brought axe with him. He attacked unarmed victim from behind on the vital party of body i.e. scalp. Injured fell down immediately which led to his almost immediate death. Three injuries i.e. injury no. 2, 3 and 4, found on the head of deceased were caused due to one single impact. Each of the injury was sufficient to cause death in ordinary course of nature of an ordinary human being. The injuries were further individually as well as collectively sufficient to cause death of any person. This indicates the force used by accused in causing injury.
59. Considering the nature of weapon used by accused, the fact that the said weapon was already carried by him, State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 59/60 the blow aimed at the vital part of the body, amount of force employed in causing injury, the premedidated act of accused without any instigation or provocation on the part of the deceased or anybody else, act done with a cool mind, this court has no hesitation to conclude that the alleged act was done by accused with the intention of causing death of deceased Harish, after due deliberation. The act of accused is therefore, covered under Ist part of section 300 IPC.
60. This court is therefore of the opinion that all ingredients of Ist part of section 300 defining the offence of murder are satisfied. The case of accused does not fall in any of the exceptions to section 300. The accused is therefore liable to be convicted for the offence u/s 302 IPC. Accordingly, accused is convicted for having committed offence of murder of Sh. Harish, S/o Nanak Chand, punishable u/s 302 IPC.
Announced in the open court on the 07th day of June, 2017 ( Ajay Pandey ) Addl. Sessions Judge 04, New Delhi District, Patiala House Courts, New Delhi/07.06.2017 State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 60/60 SC no. 9160/16 FIR no. 361/14 PS: Inderpuri State Vs. Dinesh @ Dholu 07.06.2017 Present: Sh. S. K. Kain, learned Addl. PP for the State.
Accused from JC along with Sh. Suresh Sisodia, Amicus Curiae.
Vide my separate judgment of even date, accused is held guilty for offence punishable u/s 302 IPC.
Put up arguments on the point of sentence on 09.06.2017.
( Ajay Pandey ) Addl. Sessions Judge 04, New Delhi District, Patiala House Courts, New Delhi 07.06.2017 State VS Dinesh @ Dholu FIR no. 361/2014 PS - Inder Puri Page no. 61/60