Delhi District Court
Sc No. 26/17 Fir No. 88/16 Ps. Tuglak Road ... vs . Rahul & Ors. Pages 1 Of 38 on 23 May, 2019
IN THE COURT OF SHRI ANIL ANTIL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
S.C. No. : 26/17
FIR No. : 88/16
PS: : Tughlak Road
U/S: : 302/34 IPC
State
Versus
Rahul,
s/o Brij Mohan,
r/o NDMC Staff Quarters,
near Parsi Kabristan,
Prithviraj Lane, Khan Market,
New Delhi.
(A-1)
Brij Mohan,
s/o Sh.Shiv Charan,
r/o NDMC Staff Quarters,
near Parsi Kabristan,
Prithviraj Lane, Khan Market,
New Delhi.
(A-2)
Kamlesh,
w/o Brij Mohan,
r/o NDMC Staff Quarters,
near Parsi Kabristan,
Prithviraj Lane, Khan Market,
New Delhi.
(A-3) ......... Accused.
Date of receipt of file in this Court : 02.01.2017
Date when arguments were heard : 17.05.2019
SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 1 of 38
Date of judgment : 21.05.2019
JUDGMENT
1 The above said three accused persons have been charge sheeted by police station Tuglak Road for commission of offence punishable under section 302/34 IPC.
2 Copy of charge sheet was supplied to the accused persons by learned Metropolitan Magistrate, Patiala House Courts, New Delhi. The learned Metropolitan Magistrate after complying with the provisions of section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable under section 302/34 IPC is exclusively triable by the Sessions court.
3 The brief facts of the prosecution case is that : on the intervening night of 01/02-09-2016 at about 11:00/11:30p.m. when the complainant son namely Rahul ( deceased ), aged about 25 years, was at home and talking on phone, Smt. Kamlesh and Brij Mohan, mother - father of Anchal who was having affair with deceased Rahul, arrived at their jhuggi ; had quarrel with them and they left after threatening him of dire consequences in case he continued his relation with their daughter Anchal.
That at around 12:30a.m. on 02.09.2016 Brij Mohan, Kamlesh and their both the sons namely Rahul and Shivam, accused persons, again arrived in the compound of their quarters and started abusing and shouting SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 2 of 38 upon them. On hearing this, her son Rahul (deceased) rushed towards them with danda in his hands ; She too went after him to control him and when Rahul (deceased) reached near them he was immediately overpowered by Brij Mohan, his wife Kamlesh, Rahul and Shivam ; danda from the hands of Rahul (deceased) was snatched by Shivam, Rahul (deceased) was caught by Brij Mohan and Kamlesh and he was stabbed by accused Rahul in the chest over left side. Deceased Rahul started bleeding and thereafter he rushed towards stairs of front side and ran through the verandah of first floor to save himself from the assault, and finally he collapsed in front of the quarter no. 20.
That meanwhile the public had also gathered there. The accused Rahul was apprehended by the police and blood stained knife was recovered from his possession. The injured Rahul was shifted to RML hospital where he died during the treatment.
4. The case was registered and during the course of investigation blood samples were lifted from the spot by the IO as well as FSL team. After the arrest of accused persons their clothes have been seized. The clothes, blood samples and viscera of deceased was preserved and sent to FSL for examination. After completion of the investigation charge sheet was filed by the IO before the learned court for trial.
5. The accused Rahul (A-1), Brij Mohan (A-2) and Kamlesh (A-3) are facing trial on the allegations of prosecution that on 02.09.2016 at about 12.30a.m. at Compound NDMC Quarter, Double Story, PR Lane, Khan SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 3 of 38 Market, New Delhi, a place within the jurisdiction of PS Tuglak Road they all in furtherance of their common intention with one juvenile X ( who is facing trial before the court of learned JJBCL ) and committed murder of Rahul by way of voluntarily giving knife blow on his chest and murdered him and thereby committed an offence punishable u/s 302/34 IPC.
It is pertinent to mention here that separate charge sheet was filed against the accused Shivam before the JJBCL and he is facing trial before the said learned court.
6 The prosecution in support of its case has examined total 28 witnesses and thereafter the prosecution evidence was closed. 7 The separate statements of all the three accused persons were recorded u/s 313 CrPC in which they all denied all the material incriminating circumstances appearing in the prosecution evidence on record against them and stated that they are innocent and have been falsely implicated in the present case. All the three accused persons did not preferred to lead any evidence in their defence.
8 I have heard the final arguments and perused the record. 9 Ld. Addl. PP for the State argued that the prosecution has been successful in proving its case beyond reasonable doubt against all the accused persons. He stated that PW-18, mother of the victim/deceased, eye witness of the case, has supported the version of prosecution and has withstood the exhaustive cross examination of the defence counsel, and SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 4 of 38 nothing has been elucidated in her cross examination to impeach or create any cloud over the testimony. It is also stated that her testimony is also supported by PW 19, her husband, another eye witness of the case, and other police officials who had apprehended the accused Rahul with the blood stained knife when he was trying to fleeing from the spot, after committed the murder of Rahul (deceased) ; that all the accused persons had common intention to kill the deceased , as the deceased had love affair with the sister of accused Rahul and daughter of co-accused persons.
That the version of the eye witnesses is also duly supported by the medical evidence, the postmortem report and the FSL results.
With these submissions it is stated that prosecution has been successful in establishing guilt of all the three accused persons, i.e Rahul and other co-accused persons namely Brij Mohan and Kamlesh with the aid of section 34 IPC, beyond any reasonable doubt for committing the murder of deceased Rahul and accordingly they be convicted u/s 302 IPC.
10. The ld defence counsel on the other hand argued that the prosecution has miserably failed to prove its case against the accused persons by contending that the most material witness i.e. PW18 did not support the case of prosecution and was cross examined by ld. Addl. PP for State after obtaining permission from the court.
He argued that there are material contradictions in the testimony of PW 18 and PW19, hence, their testimonies are not reliable and can not be SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 5 of 38 believed.
He further argued that PW 18 and PW19 are interested witnesses being the parents of deceased Rahul and their testimony is not trustworthy and can not be relied upon for any purpose.
It is also stated that the presence of PW19, father of the deceased, at the spot is highly doubtful as PW 18 in her testimony has nowhere specifically deposed that her husband PW 19 was also present alongwith her at the spot at the time of incident.
He further argued that it has also come on record during cross examination that there were no bloodstains on her cloth which she was wearing at the time of incident, therefore, her presence on the spot becomes highly doubtful, as it is but natural that a parent would save his/her child at the time of such incident.
It was further submitted that during cross examination PW18 admitted that she being alone at that time was scared of the accused persons, and therefore, did not try to intervene and save her deceased son from the murderous assault of the accused persons.
He argued that the rest of the witnesses are police officials and their testimony can not be relied upon and they have falsely implicated the accused persons in the alleged offence.
He summed up his arguments by stating that prosecution has miserably failed to prove the charges levelled against all the accused SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 6 of 38 persons, hence they are liable to be acquitted in this case u/s 302/34 IPC. Evidence in the present case :
11. PW-1 is Dr. Pratibha, DCH, Department of Paediatric, Dr. RML Hospital, Delhi deposed that on 02.09.2017 at about 1.30 pm, one Rahul, son of Sh. Braham Singh, aged about 25 years was brought to the casualty with the alleged history of stab wound on the left side of his chest. She examined him, the stab wound was found to be of 5 cms on the left subcostal area of his chest, which was bleeding. He was then shifted to Trauma RR. Sample for alcohol was taken and was handed over to the IO. The pant and shirt of the patient/injured was also sealed and handed over the IO. She proved the MLC bearing No. E-214396/16 As Ex. PW-1/A.
12. PW-2 Constable Surender PS Tughlaq Road deposed that on the intervening night of 01.02/09/2016, he was posted at PS Tughlaq Road. On that day at about 5.00 am, Officer on duty handed over him three envelopes bearing the copies of FIR of this case and on the direction of the IO, he went on government motorcycle bearing registration No. DL1S S 2390 for delivery of copy of FIR at the residence of learned MM, concerned, DCP and Joint CP.
13. PW-3 Dr. Gautam D.V.PG Resident, Orthopedics, RML Hospital deposed that on 02.09.2016 at about 2.00 pm, one Brij Mohan, aged about 45 years and Smt. Kamlesh, wife of Brij Mohan, aged about 40 years were brought by Constable Ramesh to the casualty. He examined them and on SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 7 of 38 their examination, no external injuries were found on their person. He proved the MLCs of Brij Mohan Ex PW3/A and Smt. Kamlesh Ex. PW-3/B respectively.
14. PW- 4 ASI Pal Singh, PS Tughlaq Road deposed that on the intervening night of 01/02.09.2016, he was working as Duty Officer between 4.00 pm to 8.00 am, and at about 3.30 am, he received a rukka from HC Rajpal Singh, sent by SI Sunil Kumar, and on the basis of which, he got recorded the FIR of present case through computer operator. He made his endorsement on the rukka Ex. PW-4/J and issued certificate under Section 65-B of Indian Evidence Act Ex. PW-4/K. He then returned the copy of FIR and original rukka to HC Rajpal Singh to be handed over to Inspector Dilip Kumar for further investigation.
He proved copy of FIR as Ex. PW-4/I. Thereafter at about 5.00 am, he sent the copies of FIR to concerned Area Magistrate and other senior police officials through Constable Surender.
15. PW-5 SI Rahul from Mobile Crime Team, New Delhi deposed that on 02.09.2016 at about 12.45 am, he received a call from control room, upon which, he along his staff comprising of HC Pushkar ( fingerprint proficient ) and Constable Surender ( Photographer ) reached at NDMC Quarters, Double Story, PR Lane, Khan Market, where they met SI Sunil, inspected the spot and Constable Surender took photographs of the spot at the instance of IO Sunil Kumar and Inspector Dilip Kumar.
SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 8 of 38 He prepared the scene of crime report bearing No. 263/16 and proved the same as Ex. PW-5/A and then handed over it to SI Sunil. Thereafter, Inspector Dilip Kumar recorded his statement at the spot.
16. PW-6 Dr. Garima Chaudhary, Senior Forensic Examiner, RFSL, Chanakya Puri, New Delhi. She deposed that on 02.09.2016, on receipt of letter from SHO PS Tughlaq Road, she along with her team members went to the scene of crime, where she was apprised by the IO regarding the incident.
She inspected the spot and lifted seven exhibits, then kept them in envelopes and handed over the same to IO at the spot itself. She proved her report bearing No. 2016/SOC-024 in this regard as Ex. PW-6/A.
17. PW-7 HC Hardeep Singh, Assistant Draftsman, DAP 7th Battalion, Malviya Nagar, New Delhi deposed that on 04.10.2016, he was called by SI Sunil at the place of occurrence. He took measurements of the spot at the instance of SI Sunil and also prepared rough notes.
Later on, on the basis of said measurements and rough notes, he prepared scaled site plans of the spot and proved as Ex. PW-7/A and Ex. PW-7/B and then destroyed the said rough notes and measurements.
18. PW-8 Dr. Umesh Kumar, Senior Resident from RML Hospital deposed that on 02.09.2016, he was posted in surgical emergency department, examined one Rahul, who was brought by PCR van with the alleged history of stab injury. On examination, found that the patient was not having the pulse and his pupil was mid-dilated sluggishly reacting to light, SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 9 of 38 stab injury measuring 5 x 2 cms was found on the left lower side of the chest of the patient, with active bleeding positively. He immediately gave CPR to the patient till 2.15 am but the patient could not survive and was declared dead at 2.15 am itself.
He prepared the death summary report of patient Rahul and proved the same as Ex. PW-8/A.
19. PW-9 Dr. Ekta Yadav, PGCMO, Dr. RML Hospital deposed that on 02.09.2016 at about 01.45 pm, she examined one Rahul, son of Sh. Brij Mohan, aged about 25 years, who was brought by Constable Ramesh to Casualty vide MLC bearing No. E/214938. During examination, she took hand wash swab from both hands, sealed the same and then handed over the same to IO. No fresh injury was noticed on the person of the patient. She proved the MLC as Ex. PW-9/A.
20. PW-10 is Constable Surender from Mobile Crime Team, New Delhi District. He deposed that on 02.09.2016, he along with crime team Incharge Rahul Singh had gone to Double Storey, NDMC Quarters, Khan Market, New Delhi, where he found blood lying on the ground, stairs and corridor of first floor of Quarter No. 20/21.
He took 30 photographs of the spot on the directions of Inspector Dilip Kumar. He proved the photographs as Ex. PW-10/A1 to Ex. PW-10/30 and their negatives as Ex. PW-10//B1 o Ex. PW-10/B30 respectively.
21. PW-11 is SI Harish Chander Pathak from CPCR/PHQ. He deposed SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 10 of 38 that on 23.11.2016, he was working as Nodal Oficer/CPCR/PHQ.
He had given certificate under Section 65-B of the Evidence Act with respect to CRDD No. 02SEP161550021 dated 02.09.2016. He proved the said certificate as Ex. PW-11/A.
22. PW-12 is ASI Mahma Singh from Record Branch, PCR, Mangol Puri. He deposed that on 23.11.2016, he was posted as Incharge Record Branch, PCR, Mangol Puri.
He handed over the photocopy of call book Victor 83, PCR van dated 01/02.09.2016 from serial No. 177 to 179 to SI Sunil Kumar of PS Tughlaq Road, who seized the same vide seizure memo Ex. PW-12/A and proved the call book record as Ex. PW-12/B (colly).
23. PW-13 is Constable Anuj Kumar from PS Tughlaq Road. He deposed that on 28.10.2016, Inspector Dilip Kumar gave him a notice under Section 91 Cr. PC and in reply of the said notice, he produced the copy of complaint of Smt. Kamlesh and Rahul and one letter of Ms. Anchal, which were seized vide seizure memo Ex. PW-13/A. He proved the relevant entry dated 22.06.2016 vide diary No. 1869.
24. PW-14 is HC Virender Singh from PS Tughlaq Road. He deposed that on 02.09.2016, he was posted as MHCM at PS Tughlaq Road. On that day, Inspector Dilip Kumar deposited 19 sealed pullandas and two sample seals, out of which, 17 pullandas were duly sealed with the seal of CMO, RML Hospital.
SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 11 of 38 He proved the relevant entry at serial No. 792 of Register No. 19 as Ex. PW-14/A. He also proved the entries regarding deposit of wooden box containing viscera of the deceased, cloth pullanda containing underwear of deceased and blood gauze at serial No. 793 as Ex. PW-14/B. He further proved the Road Certificates as Ex. PW-14/C and Ex. PW-14/D respectively.
25. PW-15 is Sh. Surender Kumar, Nodal Officer, Bharti Airtel Limited, New Delhi, he proved the call detail records of mobile No. 8826824643 for the period 01.08.2016 to 02.09.2016 along with CAF as Ex. PW-15/B, certificate under Section 65-B of Indian Evidence Act Ex. PW-15/C, Customer Application Form, issued in the name of Brij Mohan as Ex. PW-15/A, copy of Aadhar Card as Ex. PW-15/X, as Ex. PW-15/B, certificate under Section 65-B of Evidence Act as and the copy of location chart of the above said mobile number as Ex. PW-15/D.
26. PW-16 is Constable Preeti from PS Tughlaq Road. She deposed that on 02.09.2016, she joined the investigation of the present case with SI Sunil Kumar and Inspector Dilip Kumar. On that day, they went to PR Lane, Khan Market from where they apprehended accused Kamlesh, Brij Mohan and JICL Shivam. On the instructions of the IO, she took search of accused Kamlesh. She deposed that IO also made enquiry from accused Kamlesh and recorded her disclosure statement.
She proved the pointing out memo of place of occurrence as Ex. PW-16/A ; arrest memo of accused as Ex. PW-16/B and her personal SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 12 of 38 search memo Ex. PW-16/C. She also proved the pullanda containing the wearing clothes of accused Kamlesh as Ex. PW-1/D. She also identified the clothes worn by accused Kamlesh as Ex. PW-16/P1.
27. PW-17 is ASI Sher Singh from PCR. He deposed that on the intervening night of 01/02.09.2016, he was working as Incharge of Victor 83. At about 12.45 am in the night, while patrolling, when he reached near Khan Market Church, he met SI Sunil, who had already caught a boy with blood stained knife in his hand. The boy disclosed that he had given knife blow to his neighbour. Thereafter, he along with that boy went to NDMC Double Story Compound, Khan Market, where the blood was found lying near Quarter No. 20-21 and one person namely Rahul was also found lying there in an unconscious condition and blood was oozing out from his body. They took the injured to RML Trauma, where he was got admitted vide MLC No. E- 214396/16.
28. PW-18 is Smt. Sumitra Devi. She is the mother of the deceased. She deposed that her elder son Deepak used to live along with his family at Kotla Mubarak Pur and her daughter Pooja is living with her husband at East of Kailash; her younger daughter Deepmala and younger son Rahul (deceased) were living together with her' She deposed that her son Rahul was in love with Ms. Anchal, daughter of Sh. Brij Mohan( accused A-2), who used to live near Parsi Kabristan Quarters but both the families were against this relationship. She SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 13 of 38 deposed that in the month of September at about 11.30 pm, accused Kamlesh ( A-3) and Brij Mohan(A-2) came to their house and complained that Rahul ( deceased ) was abusing them but Rahul denied this fact ; that while Kamlesh (A-3) and Brij Mohan (A-2) were going downstairs, Shivam (JICL) and Rahul (A-1) also came there in their compound .
She deposed further that accused Brij Mohan threatened her son that "aaj aa jane de Pradhan Ji Rahul Ko, aaj teri Mundi saaf karwa doonga". That the deceased thereafter made call to SI Sunil and came downstairs with a danda ; he also requested accused Kamlesh that he had not abused them or that they could hear the recording.
She testified that in the meantime, accused Kamlesh gave a slap to deceased Rahul and also caught him from his collar, Shivam snatched the danda from the hands of her son and gave a blow on his waist, accused Brij Mohan gave a brick blow on his head and accused Rahul gave a knife blow on the right side of stomach of her son.
She further deposed that her son Rahul somehow managed to save himself and ran away towards the stairs and all the accused also chased him and gave him beatings. Her son Rahul fell down in front of Quarter No. 20 ; after about half an hour, SI Sunil along with other police staff came there ; the body of her son was shifted to RML hospital in an ambulance, where he was declared "brought dead" by the doctor ; she proved her statement given to the police as Ex. PW-18/A. Thereafter, police inspected the spot and also lifted SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 14 of 38 the blood from the spot.
She further deposed that she was informed by SI Sunil that accused Rahul was apprehended in front of Church and the knife was recovered from his possession ; she also identified the knife, used in the commission of offence as Ex. PW-18/1.
29. PW-19 is Sh. Braham Singh, father of the deceased. He is also the eye witness of the incident. His testimony is more or less the same as that of PW-18.
30. PW-20 is Dr. Sachin Mittal, CMO from RML Hospital. He deposed that on 02.09.2016, he conducted the postmortem on the body of deceased Rahul. He also preserved the blood gauze and the clothes of the deceased.
He proved his report as Ex. PW-20/A and gave his opinion with regard to the weapon of offence and nature of injuries which as per his opinion were sufficient in the ordinary course of nature to cause death. He also proved the subsequent opinion as Ex. PW-20/B.
31. PW-21 is Deepak, son of Braham Singh. He deposed that on the intervening night of 01/02.09.2016, he received a call from his younger sister Pooja with regard to the knife blow given to their brother Rahul by accused Rahul, brother of Anchal. He rushed to the spot but came to know that injured had already been removed to hospital. Police took photographs of the spot in his presence. Police also removed blood stained brick from the place of incident and seized the same. He proved the seizure memos as Ex. PW-21/A SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 15 of 38 and Ex. PW-21/B respectively. He received the body of the deceased after postmortem and his statement was also recorded in this regard by the police. He also proved the cemented brick, seized by the police from the spot as Ex. PW-21/P1.
But important to note that his testimony is more or less hearsay, he was not a eye witness ; and was not present at the spot, and has deposed on the basis of information given by others, therefore, not much reliance can be placed upon his testimony.
32. PW-22 is Dr. Shweta Sinha, Junior Forensic Assistant, RFSL, Chanakya Puri. She conducted the chemical examination of the remnants and exhibits and proved her report as Ex. PW-22/A.
33. PW-23 is Dr. Sankaranarayanan, Senior Scientific Officer, RFSL, Chanakya Puri, Delhi. He conducted the biological examination of the exhibits. He proved his report as Ex. PW-23/A and also proved his detailed DNA analysis report along with allelic data as Ex. PW-23/B.
34. PW-24 is SI Rai Singh from PS Parliament Street. He deposed that on 02.09.2016, he joined the investigation of the present case with Inspector Dalip Kumar. On instructions, he went to RML Hospital where he received the MLC bearing No. 214396. The doctor seized the exhibits of the deceased and the same were handed over to him along with sample seals. He handed over the same to IO, who seized the same vide Ex. PW-24/A. He was also sent to the hospital for shifting the body of the deceased to the mortuary of Lady SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 16 of 38 Harding Hospital.
He further deposed that he collected three exhibits including viscera, underwear and blood gauze of the deceased and handed over the same to IO Inspector Dalip Kumar, who seized the same vide seizure memo Ex. PW-24/B.
35. PW-25 is ASI Rajpal from PCR South Zone, Vasant Kunj, New Delhi. He deposed that on the intervening night of 01/02.09.2016, he was on patrolling duty and was near Khan Market Church. At about 12.45 am, SI Sunil Kumar and Constable Shubhkaran also met him. During patrolling, they saw a person coming from the side of PR Lane Quarters with blood stained knife in his right hand. They apprehended the said person and snatched the knife from his hand. In the meantime, PCR van Victor-83 also reached there. On enquiry, the said person disclosed his name and residential address and disclosed that he had given knife blow to Rahul, son of Braham Singh.
That he was then taken to the place of incident, where Rahul was found lying unconscious but was breathing. IO then recorded the statement of Sumitra Devi. They also came to know that Rahul had expired in the hospital.
He further deposed that he took the rukka, prepared by SI Sunil on the statement of mother of the deceased, to the police station for the registration of the FIR. After getting the FIR registered, he came back at the spot along with Constable Preeti. Thereafter, his statement was recorded by SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 17 of 38 the IO.
36. PW-26 is Constable Shubhkaran from PS Tughlaq Road. He is also the witness to the apprehension of the accused with blood stained knife. His testimony is more or less the same as that of PW-25. He proved the sketch of the knife as Ex. PW-26/A and its seizure memo as Ex. PW-26/B. He also proved the arrest memo of accused Rahul as Ex. PW-26/C and personal search memo as Ex. PW-26/D. He further proved the arrest memo of accused Brij Mohan as Ex. PW-26/E and his personal search memo as Ex. PW-26/F. He also proved the disclosure statements made by accused Rahul, Brij Mohan and Kamlesh as Ex. PW-26/G to Ex. PW-26/I. He also proved the seizure memo of mobile phone make Nokia of black colour recovered from the possession of accused Rahul As Ex. PW-26/J. He proved the seizure memo of clothes of accused Rahul as Ex. PW-26/K and that of accused Brij Mohan as Ex. PW-26/L.
37. PW-27 is SI Sunil Kumar. He deposed that on the intervening night of 01.02.09.2016, he was on emergency duty. While patrolling when he reached near Church, Khan Market, he saw a person, carrying blood stained knife in his hand, who revealed his name as Rahul. He apprehended that person. He took the accused to the place of incident. At the spot, he recorded the statement of Smt. Sumitra Devi, mother of the injured. He prepared Rukka Ex. PW-27/A at the instance of Sumitra Devi and handed over the same to HC Rajpal for the registration of the FIR. Thereafter, further SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 18 of 38 investigation was conducted by Inspector Dalip Kumar.
He further deposed that IO Inspector Dalip Kumar had conducted all the proceedings and writing work at the spot in his presence. He also proved on record, sketch of weapon of offence i.e. knife Ex. PW-26/A, its seizure memo, seizure memo of mobile phone, seizure memos of clothes which were got recovered by accused Rahul, Brij Mohan and Kamlesh and arrest memos, personal search memo and their disclosure statements. His statement was recorded by the IO. He also identified the case property which was brought in court and shown to him.
38. PW-28 Inspector Daleep Kumar is the IO of this case and he deposed that on 01/02.09.2016, he was posted as SHO PS Tuglaq Road ; on receipt of information about the incident, he reached at the spot, where SI Sunil and other staff members and accused met him ; that injured had already been removed to RML Hospital by the PCR van ; Crime team was called, who inspected the spot and also took the photographs of the scene of crime in his presence ; Incharge, Crime team prepared the report and handed over the same to him.
PW 28 deposed that thereafter he prepared the site plan of the spot at the instance of complainant Ex. PW-28/A ; prepared the sketch of knife Ex. PW-26/A, measured it and then converted it into pullanda and seized vide seizure memo Ex. PWA-26/B ; he lifted the blood stained cemented brick from the spot and seized the same vide seizure memo Ex. PW-21/A ; he also SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 19 of 38 lifted the blood of the deceased and earth control from the spot ; accused persons sere arrested and their disclosure statements were recorded by him ; .
Further that he was handed over the clothes and blood samples of the deceased along with sample seal of the hospital, which were seized vide memo Ex. PW-24/A. The wooden danda, recovered by JICL Shivam, was also seized by him.
He deposed that the accused got recovered their clothes which they were wearing at the time of incident and the same were seized vide memo Ex. PW-26/K and Ex. PW-26/L ; he prepared the pointing out memo Ex. PW- 16/A at the instance of accused Brij Mohan and Kamlesh and got conducted the postmortem of the deceased from the Mortuary of Lady Harding Hospital ; filled up Form No. 25.35, Ex. PW-28/B, and recorded the identification statements of the father, brother and sister of the deceased Rahul, which are Ex. PW-28/C to Ex. PW-28/E. After postmortem, the body was handed over to the family members of the deceased vide memo Ex. PW-28/F. PW 28 deposed further that he called RFSL team at the spot, who lifted blood stains from the spot, which were seized vide memo Ex. PW-27/C. On 03.09.2016, he recorded the statement of one public witness (who was not cited as a witness). On 05.09.2016, he seized the viscera, blood gauze and underwear of the deceased vide memo Ex. PW-20/B ; recorded the statements of other witnesses and sent the exhibits to FSL ; prepared the SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 20 of 38 site plan of the spot through HC Hardeep and collected the PCR Forms. He also collected the postmortem report of the deceased and subsequent opinion regarding the weapon of offence. He also recorded the statement of Anchal, sister of the accused and after completing the investigation, he filed challan in court. Later on, FSL result was also filed by him in court. Analysis and Findings :
39. PW 18 - mother of the deceased - is a star / eye witness to the case of the prosecution. She has mostly testified in terms of her statement u/s 161 Cr.P.C, ( mostly because there have been some improvements during court deposition which are discussed in later part of the judgment ), and deposed that in the month of September at about 11.30 pm, accused Kamlesh and Brij Mohan came to their house and complained that Rahul was abusing them but Rahul denied this fact ; while Kamlesh and Brij Mohan were going downstairs, Shivam and Rahul also came there ; she further deposed that accused Brij Mohan told her son "aaj aa jane de Pradhan Ji Rahul Ko, aaj teri Mundi saaf karwa doonga " (improvement in her statement merely with intent to attribute common intention to co-accused Brij Mohan to commit the offence , and not stated in her statement u/s 161Cr.P.C and confronted also during cross examination ).
39.1 She testified that her son requested the accused Kamlesh that he had not abused them or that they could hear the recording and in the meantime, accused Kamlesh gave a slap to deceased Rahul and also caught SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 21 of 38 him from his collar, Shivam snatched the danda from the hand of her son and gave a blow on his waist, accused Brij Mohan gave a brick blow on his head and accused Rahul gave a knife blow on the right side chest of her son. 39.2 She further deposed that her son Rahul somehow managed to save himself and ran away towards the stairs and all the accused also chased him and gave him beatings ; her son Rahul fell down in front of Quarter No. 20 ; after about half an hour, SI Sunil along with other police staff came there ; the body of her son was shifted to RML hospital in an ambulance, where he was declared "brought dead" by the doctor. She proved her statement given to the police as Ex. PW-18/A. Thereafter, police inspected the spot and also lifted the blood from the spot. 39.3 PW 18 further deposed that she was informed by SI Sunil that accused Rahul has been apprehended in front of Church alongwith the knife, she also identified the knife, used in the commission of offence as Ex. PW- 18/1.
39.4. During cross examination of PW-18, nothing incriminating has come on record to impeach the veracity of her deposition or raise any cloud over her testimony or her presence on the spot at the time of incident. Though during her deposition before the court PW-18, the eye witness and mother of the deceased, has given the minute details of the incident, the facts which were not recorded in her statement u/s 161 Cr.P.C, and she was also cross examined on those aspects by the defence counsel as well as SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 22 of 38 confronted her with her statement Ex PW18/A wherein those facts were not recorded, but pertinent to note is that, firstly the said facts or so called improvements and omissions pertained only qua co-accused Brij Mohan, Kamlesh and not qua the accused Rahul who had given the fatal blow to the deceased Rahul with knife. secondly, her testimony with respect to the acts of Rahul, his taking out of knife and giving the fatal blow on the left side of the chest of the deceased and his presence on the spot with other co-accused has remained un- impeached. It is but natural that minute details of the incident, how it unfolded/ entire sequence of events may not have been stated to the IO in her initial statement recorded u/s 161 Cr.P.C, it is also but natural that some times the witness during her deposition before the court may try to elaborate the facts in detail, and at the same time I am also mindful of the fact that the witness tends to improve upon his or her earlier statement with the intent to implicate others also, but given the facts herein none of those additions and / or omissions in her statement touch upon the material facts of the case incident in so far as accused Rahul is concerned.
39.5 Further, though during cross examination PW18 seems to got confused with respect to the place where injury was inflicted on the body of the deceased. It was stated by her that "accused Rahul gave a knife blow on the right side of stomach of my son" however, thereafter in cross examination by the prosecution, after obtaining permission of the court, and SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 23 of 38 specifically to that point the witness admitted to the fact that blow of the knife was given on the left side chest of deceased.
40 Testimony of PW 18 is further corroborated by ample medical evidence. MLC & Postmortem report of deceased :
40.1 PW-1 Dr. Prathiba, PW8 Dr. Umesh Kumar and PW 20 Dr. Sachin Mittal are the doctors who have conducted the medical examination / postmortem of the deceased and their testimony leads to credence to the case of the prosecution. The nature of the injury inflicted on the deceased as mentioned in the MLC prepared by PW1, the first one who examined the deceased when he brought to the emergency of hospital immediately after the incident i.e. stab wound in left subcostal area of chest actively bleeding corroborates the oral testimonies of PW18 and PW19.
40.2 Postmortem report corroborates further the ocular evidence on record and leads credence to the case of prosecution, which reflects the injury caused on the body of the deceased Rahul was sufficient in the ordinary course of nature to cause his death. The postmortem report of the deceased is duly proved by PW20 Dr. Sachin Mittal, who had conducted the postmortem on the body of the deceased Rahul. The material excerpts of the PM report is quoted here for ready reference :
i. Lacerated wound of size 1.5cm x 0.5cm,horizontally placed is seen over the outer border of right eyebrow, 5.5cm lateral to mid line on right side and 2.5cm above the outer canthus of right eye. SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 24 of 38 ii. Contusion reddish in color of size 1.5cm x 1.5cm present over left side of face, 1cm below the outer canthus of left eye and 6 cm lateral to mid line on left side.
iii. Abrasion, reddish in color, crescentric in shape of size 0.8cm x0.3cm is seen present over front of neck, 1 cm lateral to mid line on right side and 2.4cm above the supra sternal notch. iv. A linear sutured wound of length 2cm with 2 black colored sutures in situ, present over left side of chest 4 cm below the left nipple and 15 cm lateral to mid line on left side along with anterior axillary line. On further dissection the wound is found in 4 th inter coastal space, cutting the muscles of 4 th inter coastal space. The wound is documented as surgically created for insertion of inter coastal drainage tube.
v. A linear sutured wound of length 4.5cm, placed slightly oblique present over the left side of anterior chest wall situated 7.5cm below the left nipple and 117 cm above the left heel. The wound show 3 black colored suture in situ, the wound is found placed in the mid clavicular line, over the left side of chest. On opening of suture, the wound is found spindle shaped with dimension of 4.0 cm x 1.5cm and upper medial angle is more acute than the lower lateral angle. On palpation subcutaneous emphysema is seen in surrounding area. On dissection of thoracic and abdominal cavity the SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 25 of 38 7th rib is found cleanly cut on its upper border and piercing the muscles of 6th inter coastal space and underlying pleura and punctured the interior surface of lower lobe of left lung and then pierced the pericardial sac laterally and finally punctured the left ventricle laterally and posteriorly. The track is found directed from left to right, lateral to medical and slightly downwards. The whole track shows extravasation of blood. The left pleural cavity shows about 2000 ml of blood in fluid and clotted form and the pericardial sac shows about 100ml of blood in fluid and clotted form in situ. 40.3 And accordingly to the medical opinion the cause of death of deceased Rahul was Haemorrhagic shock as a result of penetrating injury to the chest involving heart and left lung. All the injuries are ante mortem in nature. Penetrating injury to the chest described vide external injury no. 5 could have been caused by homicidal assault with sharp and pointed weapon which is fatal in ordinary course of nature.
40.4 In his cross examination, PW20 corroborated his earlier statement by stating that Injury no. 5 detailed in PM report could be produced by alleged weapon of offence i.e. knife. He also proved the sketch of the knife i.e. weapon of offence used in the case crime.
FSL Report
41. It is also pertinent to mention here that in the DNA profile report SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 26 of 38 the presence of blood was detected on exhibits 1,2,3,4,6b,8a,8b, 9a, 9b,9c, 9d, 10.1.12,13a, 13b,14,15,16, 17,18,19 and 20. Out of which - * Ex.1 is a piece of cement block having darker stains, * Ex.2 is one all metallic knife having darker stains, described as blood stained knife recovered from the possession of accused Rahul, * Ex. 4, one wooden stick, * Ex.6b, one half pants having darker stains, described as clothes of accused Rahul, * Ex. 8a, one shirt having darker stains described as clothes of JICL Shivam, * Ex 8b, one pants having darker stains, * Ex 9c a pair of slippers having brown stains, * Ex 9d one belt having darker stains, * Ex 10 dark brown liquid described as blood sample of deceased Rahul, * Ex 11 one underwear having darker stains.
41.1 PW 23 Sh. V. Sankaranarayanan, Senior Scientific Officer, RFSL, Chanakyapuri, duly proved his report as Ex PW23/A on record and the result of the DNA examination Ex PW23/B vide which he proved the blood of the deceased Rahul available and matched with the above said samples/exhibits and most important the DNA profile from the source Ex6b i.e. half pants of accused Rahul was found to be similar to the DNA profile/blood sample of deceased Rahul.
41.2 At this stage it would be useful to refer to provisions of Section 106 SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 27 of 38 of Evidence Act which states that when any fact is especially within the knowledge of any person the burden of proving the said fact is upon him. 41.3 Herein as noted above the prosecution has established the fact that the blood samples of the deceased were found on the under pants of the accused Rahul so it was incumbent upon the accused Rahul to demonstrate and how and when the said blood stains had appeared on his garments. It was a special fact within his knowledge which remained un explained by the defence.
41.4 In his statement u/s 313 Cr.P.C accused Rahul had given a vague reply to the DNA analysis report to say. 'I do not know .' The said fact further leads to inference qua the presence of the accused at the spot at the time of alleged incident and that in all probabilities the offence was committed by the accused.
42. Nextly the testimony of PW 18 it is also corroborated by the oral deposition of PW19 whereby he has also testified on the similar lines to say that :-
" accused persons started abusing their son Rahul ( deceased ) and accused Kamlesh gave a slap to deceased Rahul and also caught him from his collar, Shivam (JICL) snatched the danda from the hand of her son and gave a blow on his waist, accused Brij Mohan gave a brick blow on his head and accused Rahul gave a knife blow on the head of her son. On this, his son tried to save himself and ran towards first floor where he SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 28 of 38 fell down before quarter no. 20. Police officials thereafter reached at the spot and he was taken to hospital where he expired".
43. PW19 was also cross examined thoroughly by the defence but nothing to raise cloud over his testimony has come out in his examination. Though initially he failed to identify accused Brij Mohan in the court but lateron it was explained that because of his poor vision he was not able to see him clearly and thereafter identified him correctly. And more the fact it has also come on record that both the parties were previously known to each other therefore to say accused Brij Mohan is not identified in the court is of no consequence in such circumstances.
44. It was argued by learned defence counsel that presence of PW19 on the spot at the time of incident is doubtful by highlighting that his presence is no where stated by PW18 in her testimony. But merely because PW18 did not state that her husband Braham Parkash was also present at the time itself is no ground to lead an inference of the non presence of witness at the spot.
45. PW 26 Ct. Shubhkaran and PW 27 SI Sunil Kumar further substantiates the case of the prosecution and their testimony also leads credence to other witnesses mainly PW-18 & PW-19, fortifying the fact that accused Rahul was apprehended by SI Sunil when he was trying to flee away from the spot with the blood stained knife in his hand after committing the alleged offence. In their testimony it has come on record that PCR Victor 83 SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 29 of 38 had also came there at the same moment, the fact also testified and proved in their statements made by PW-26 and PW-27. And now, it can not be heard to say nor believed that all these police witnesses have colluded with each other to falsely implicate the accused Rahul herein and that their presence at the alleged time is merely a coincidence. Their presence at the spot is also duly supported by the DD entries and the calls records made at 100 number in that regard.
46. The next point of determination is that whether there was common intention of accused persons Brij Mohan and Kamlesh in causing the injuries found on the body of deceased Rahul.
39. Section 34 IPC provides as follows :-
34. "Acts done by several persons in furtherance of common intention.-When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
40. The accused persons have been charged for the offences punishable under section 302 IPC read with section 34 IPC.
In the judgment of Goudappa Vs State of Karnatka (2013) SCC 675, Hon'ble Supreme court laid down that Ordinarily, every man is responsible criminally for a criminal act done by him. No man can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, Section 34 of the Indian Penal Code makes an exception to this principle. It lays down a principle of joint SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 30 of 38 liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating from the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar or adverse by several persons if all are done in furtherance of common intention. In such situation, each person is liable for the result of the acts of another person.
41. For application of section 34 IPC, by the court there must be some prior meeting of minds of the accused to form the common intention of all of them. Ld. Addl. PP for the State has rightly submitted that such common intention can be formed at the spot itself.
42. In the judgment of Chanderkant Vs. Murgayappa Vs. State AIR 1999 SC 1557, Hon'ble Supreme court annunciated the ingredients of section 34 IPC as follows :-
"that before a man, can be held liable for acts done by another, under the provisions of this Section, it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply".
Further in the judgment of Balruddin Vs. State of Uttar Pradesh, AIR 1998 SC 3243 Hon'ble Supreme Court of India has held that though establishing common intention is a difficult task for the prosecution, yet, however, difficult it may be, the prosecution has to establish by evidence, whether direct or circumstantial that there was a plan or meeting of mind of all the assailants to commit the offence, be it pre-arranged or on the spur of the moment but it SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 31 of 38 must necessarily be before the commission of the crime where direct evidence is not available, it has to be inferred from the circumstantial evidence.
47. Coming to the case in hand :- the criminal liability and the role played by the other accused Brij Moham and Kamlesh in the commission of the crime : - there is no deposition by any witness or statement to the effect that accused Brij Mohan and Kamlesh had common intention to murder the deceased Rahul. From the facts testified by PW18 and PW19, it is also not evident that common intention to commit the crime between the accused persons was developed at the spot on the spur of the moment.
47. Learned Addl. PP for the State, however, submits that accused Brij Mohan hit the concrete brick blow on the head of deceased Rahul and Kamlesh gave a slap blow to the deceased at the time of incident. He submits that these facts reflects that on the spur of moment, a common intention for murderous assault was formed between the accused persons. But I am not convinced.
48. It is pertinent to note that both the witnesses testified to say that deceased Rahul went downstairs having a danda in his hand when the accused persons were abusing and shouting upon them, and thereafter accused Shivam (JICL and is facing trial before learned Juvenile Court) tried to catch hold of the hand of the deceased to take away the danda and in that process accused Kamlesh slapped the deceased Rahul and accused Brij SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 32 of 38 Mohan allegedly gave a brick blow on the head. However, as per the MLC report prepared by the doctor no such injury is reflected on the head of the deceased with the brick implying thereby that there was no assault on the head of the deceased as deposed by PW18 and PW129 and hence said part of the testimony of witness also does not inspire confidence.
The facts noted above predominantly indicates that they were trying to snatch away the danda from him (deceased) person, and there is nothing on record to show that at any point of time they exhorted or showed their intention to kill the deceased Rahul.
49. Besides that, as deposed by PW18 and PW19 that both the accused persons Brij Mohan and Kamlesh had gone upstairs to meet Rahul ( deceased ) to make him understand and warn him regarding his affair with their daughter, and in my considered opinion had they had any intention to kill Rahul they would not have gone upstairs to meet Rahul (deceased) on their own to resolve the dispute. Therefore the sudden act of taking out the knife by the accused Rahul and inflicting the fatal blow upon the deceased can not attributed to other accused persons in the facts and circumstances of the present case, nor their intention to kill in his manifest from the testimony of PW18 and PW19. It was the individual act of accused Rahul and the other co-accused can not be attributed liability u/s 302 IPC with the aid of common intention under 34 IPC .
50. Previous enmity between the family members is also demonstrable SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 33 of 38 on record. As noted above, it has come in evidence that the deceased Rahul was having a affair with daughter of accused Brij Mohan and Kamlesh and the sister of accused Rahul and in that regard previous complaints were also made in that regard. Though the said complaints were not pursued thereafter as amicable settlement seems to have taken place between the parties, but this fact due indicate that the parties i.e. complainant and the accused family were having strained relations between them and therefore the involvement of the entire family of the accused Rahul in the case in hands can not be ruled out.
Thus appreciating the facts indicated above in backdrop of the settled preposition of law cited above I must say that prosecution has failed to prove that the accused namely Brij Mohan and Kamlesh shared the common intention with the main accused Rahul to commit the murder of deceased Rahul.
51. Adverting back to the case of accused Rahul, I have no hesitation to say that his case squarely falls under clause (3) Sec-300 IPC Section 300 IPC is re-produced herein below :-
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-
Secondly.-If it is done with the intention of causing such bodily injury as the offenders knows to be likely to cause the death of the person to whom the arm is caused, or- SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 34 of 38 Thirdly,- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,or-
Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
116. In Virsa Singh Vs. The State of Punjab (1958) SCR 1485, Hon'ble Supreme Court explained the meaning and scope of clause (3) of Section 300 IPC as follows :-
19 The prosecution must prove the following facts before it can bring a case under section 300, 3rdly'. First, it must establish, quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly, it must be proved that the injury of the type just described made up of the three elements set out above, was sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
117. The ratio laid down in the case of Birsa Singh was followed SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 35 of 38 by Hon'ble Supreme Court in number of cases. In state of Andhra Pradesh Vs. Rayavarapu Punnayya and Anr. The Apex Court has held : -
22. 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 jade found in the affirmative, the stage for considering the operation of Section 300, 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 SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 36 of 38 Section 304, Penal Code.
52. In the case at hand, the injury inflicted upon the deceased Rahul, as noted above, was the cause of his death and it was voluntarily and intentionally inflicted by accused Rahul upon the deceased. Also as per medical testimony, the said injury was sufficient in ordinary course of nature to cause death. Hence, this court is satisfied that the case of accused Rahul is covered in the definition under section 300 IPC Clause thirdly. Prosecution has been successful to demonstrate the nature of the injuries on the deceased which was sufficient in the ordinary course to cause death as well as the fact that the accused Rahul had voluntary and intentionally inflicted the said fatal blow to the deceased.
53. Though it was argued that fingerprints from the alleged weapon used in the crime was not taken by the prosecution and to certain extent I also agree that there is to some extent a lacuna in the case of prosecution.
54. But considering the totality of the facts and circumstances and taking note of the testimony of the eye witnesses, and the FSL report, and the DNA profile report, the said omission on the part of the prosecution is not material enough to raise even an iota of doubt about the involvement of the accused Rahul in the commission of the offence and to the recovery of the weapon of offence effected therefrom. Minus the said fact, there is ample and clinching evidence on record to demonstrate that the accused Rahul gave the lethal blow on the chest of the deceased Rahul with the knife and by his act caused SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 37 of 38 his death which was sufficient in the ordinary course of nature to cause death.
55. Thus concluding, in view of the above discussion, I am of the view that prosecution has miserably failed to prove the charge for the offence u/s 302/34 IPC against the accused Brij Mohan and Kamlesh, however, and so far as accused Rahul is concerned prosecution has successfully proved its case under section 302 IPC beyond reasonable doubt that on 02.09.2016 at about 12.30a.m. at Compound NDMC Quarter, Double Story, PR Lane, Khan Market, New Delhi, he committed murder of Rahul (deceased) by way of giving him voluntarily knife blow on his chest and murdered him.
Jail superintendent is directed to release the accused Brij Mohan forthwith if he is not required in any other case.
Let the arguments be heard on the quantum of sentence qua accused Rahul on 23.05.2019.
Announced in the open
Court on 21.05.2019 ( Anil Antil )
Addl. Sessions Judge -04,
New Delhi District, Patiala House Courts,
New Delhi
21.05.2019
SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 38 of 38 IN THE COURT OF SHRI ANIL ANTIL ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI S.C. No. : 26/17 FIR No. : 88/16 PS: : Tughlak Road U/S: : 302/34 IPC State Versus Rahul, s/o Brij Mohan, r/o NDMC Staff Quarters, near Parsi Kabristan, Prithviraj Lane, Khan Market, New Delhi.
(A-1) ......... Convict.
ORDER ON SENTENCE
23.05.2019
Present: Sh. S K Kain, Ld. Addl. PP for the State.
Convict Rahul is produced in judicial custody represented by Sh. Yogesh Kumar, learned LAC.
Arguments heard on the quantum of sentence and record perused. Learned counsel for convict has prayed for a lenient view in the facts of the case, and submits that he is man of young age, was not having any SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 39 of 38 intention or preparation of mind to murder the Rahul, as convict was having a love affair with his sister ; he had gone there to save their prestige in the society and to make him understand by refraining him not to continue his affair with her sister. He further submits that he is not a previous convict or has a criminal record prior to this case incident. He further argued that that convict is an illiterate man has thoughts for his life but due to circumstantial reasons he has been eloped in the matter and a harsh punishment if awarded to him will ruined his life, which is a precious gift of God and every body has a right to enjoy it. It is further submitted that he is in judicial custody in this case from the day of incident i.e. 02.09.2016 .
Per contra, Learned Addl. PP for State has submitted that prosecution has been successful in establishing guilt of the convict i.e Rahul and appropriate punishment as provided in the statue be given to the convict so that the public can be deterred to take law in their own hands. It is further submitted that the deceased was also man of young age, was bread earner of his family and his parents are of old age and on his demise their survival in the society has become difficult. It is stated that the convict. has caused the murder of a deceased in a brutal and diabolic manner and therefore harshest punishment be given to the convict.
Heard. I have given my thoughtful considerations to the submissions advanced by both the sides.
The punishment provided u/s 302 IPC is death or imprisonment for SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 40 of 38 life and fine.
It is well settled that death sentence can be awarded only in the rarest of rare cases. The extreme penalty of death need not be inflicted in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be altogether inadequate. A balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In this regard, a reference can be made to Macchi Singh vs State of Punjab, 1983 AIR 957 and Bachan Singh vs State of Punjab, AIR 1980 SC 898.
As per record, convict Rahul had committed murder of Rahul (deceased) by way of voluntarily giving knife blow on his chest at the time of incident. The record does not reveal that the offence was committed in a brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. The case does not fall in the rarest of rare case. There does not appear to be any reason which renders sentence of imprisonment for life inadequate and calls for a death sentence.
In view of the aforesaid and considering the aggravating and mitigating circumstances, facts of the case, nature and gravity of offences SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 41 of 38 and personal circumstances, including his age and previous antecedents, he is sentenced to undergo rigorous imprisonment for life and a fine of Rs. 50,000/- and in default of payment of fine, to further undergo simple imprisonment for six months for commission of offence punishable u/s 302 IPC.
As per the record convict is in JC since 02.09.2016 and benefit of section 428 Cr.P.C is given to the convict accordingly.
It is considered that the dependents of deceased ought to be compensated for the loss suffered by them as a result of the offence, under the Victims Compensation Scheme. It is recommended accordingly. A copy of this order be sent to the Secretary, New Delhi District Legal Services Authority.
Committal Warrants be prepared accordingly.
Convict Rahul has been informed about his right to prefer an appeal against this judgment. He has been apprised that if he can not afford to engage an advocate, he can approach the Legal Aid Cell, Central Jail, Tihar or write to the Secretary, Delhi High court Legal Services Committee, 34-37, Lawyers Chamber Block, High court of Delhi, New Delhi.
Copy of Judgment dated 21.05.2019 and order on sentence pronounced today be given to convict free of costs today itself.
Superdaginama, if any, of case property stands discharged. The case property, if any, lying with MHC(M) PS Tuglak Road qua this case is SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 42 of 38 confiscated to the state and be disposed of as per rules.
File be consigned to record room after completion of all other necessary formalities.
Announced in the open
Court on 23.05.2019 ( Anil Antil )
Addl. Sessions Judge -04,
New Delhi District, Patiala House Courts,
New Delhi
23.05.2019
SC no. 26/17 FIR no. 88/16 PS. Tuglak Road State Vs. Rahul & Ors. Pages 43 of 38