Delhi District Court
State vs Mulkh Raj & Others on 25 April, 2022
IN THE COURT OF SAMAR VISHAL,
ADDITIONAL SESSIONS JUDGE-08,
WEST DISTRICT : TIS HAZARI COURTS : DELHI
CNR No. DLWT01-000092-2007
SC No. 57482/2016
FIR No. 831/2007
Police Station : Tilak Nagar
Under Section : 302/427/34 IPC
State vs Mulkh Raj & Others
In the matter of :
State
Versus
1. Mulkh Raj
S/o Sh. Chunni Lal
2. Vinay
S/o Mulkh Raj
3. Kamal @ Bobby
S/o Mulkh Raj
FIR No. 831/2007
Police Station : Tilak Nagar
Page No. 1/83
4. Vikas @ Bunty
S/o Mulkh Raj
All R/o : H.No. 23/71, Tilak Nagar
Delhi
5. Tarun @ Lucky
S/o Sh. Satpal
R/o A-130, Asha Park
Jail Road, New Delhi
Date of Institution : 04.06.2008
Date of reserving Judgment : 23.03.2022
Date of pronouncement : 25.04.2022
Appearances
For the State : Mr. Santosh Kumar,
Additional Public Prosecutor
For accused : Mr. Hari Haran Sr. Advocate and
Mr. R.A. Bhatt, Advocate.
FIR No. 831/2007
Police Station : Tilak Nagar
Page No. 2/83
JUDGMENT
1. This is the trial of the murder of Madan Lal Suri in the noon of 31.12.2007. The accused Mulkh Raj, Vinay, Kamal @ Bobby, Vikas @ Bunty and Tarun @ Lucky are accused of murdering Madan Lal Suri in furtherance of their common intention. The determination of the fact whether deceased Madan Lal Suri was murdered as alleged by the prosecution is the subject of the present judgment of this trial in which the aforesaid five accused stood charged of murdering Madan Lal Suri before this Court.
2. The case is a result of a matrimonial dispute between Pradeep Suri and his wife Simmi. Madan Lal Suri who died was the father of Pradeep Suri and his slayers are the father, brothers and a cousin of Simmi Suri. The death is the reverberation of the matrimonial discord and the case is an example, that to what extent the human relations can plunge for no rational reason.
3. The complainant Satish Malik is the son-in-law of the deceased Madan Lal Suri. He is married to the daughter of the Madan Lal Suri. On his complaint, Ex.PW1/A, the FIR of this case was registered. He alleged in this complaint that he is jeweller by profession in Karol Bagh. Due to the school holidays of his children, he came to the house of his wife's parents at 5A/5, Tilak Nagar for few days. There he came FIR No. 831/2007 Police Station : Tilak Nagar Page No. 3/83 to know that Simmi Suri, the wife of one of his brothers-in-law Pradeep, had gone to her parent's home due some disputes between her and this family. On 31.12.2007, at around 1:00 pm, Komal who was the wife of Sanjay Suri, his other brother-in law, got a phone call from their shop, that the family members of Simmi Suri had come there to fight. He, his wife Anita, Komal Suri and Annu Suri (the wife of his third brother-in-law) went to their shop Suri Silk Store at Tilak Nagar Market. They saw that the PCR policemen were taking his brothers in law Sanjay Suri, Pradeep Suri and Simmi Suri and her family members to police station. The family members of Simmi Suri while being taken from there threatened that they will teach them a lesson for harassing their daughter. After these people were taken to police station, and when he was talking to his father-in-law Madan Lal Suri, some people came abusing them inside the shop. They were Mulkh Raj, the father of Simmi, brothers-in-law- Bobby, Bunty and Vinay and two more persons whom he does not know. One person stood outside the shop with a hockey. He does not know his name but can identify him. Mulkh Raj and his sons started abusing his father-in- law Madan Lal Suri badly in front of him and said they will not spare him. He tried to pacify the situation and said that Madan Lal Suri is an old man and why they are fighting with him but they did not listen to any of his requests and instead Bobby grasped Madan Lal Suri and Mulkh Raj, Bunty and Vinay started beating Mr. Suri with fists and FIR No. 831/2007 Police Station : Tilak Nagar Page No. 4/83 kicks. When Mr. Suri sink down, the two unknown persons also beaten him with fists and kicks. Bunty sat on Mr. Suri's chest and kicked him. When Madan Lal Suri lost his consciousness and laid prostate on the floor, these accused after breaking some articles of the shop went away from there. He immediately called his brother-in-law Sanjay and informed him. Mr. Suri was lying unconscious on the floor and he was not breathing. He also urinated. Sanjay came immediately to the shop. He and Sanjay straight away took Madan Lal Suri to Khanna Nursing Home, where he was announced dead on arrival. He alleged that all the accused in alliance caused the death of his father- in-law Madan Lal Suri.
4. On this complaint, the police registered the FIR on the same day i.e., 31.12.2007.
5. The investigation was done by Inspector Yogesh Tyagi and Surender Dev. During investigation, the investigating officer photographed the spot and prepared the site plan, recorded the statements of the witnesses. The autopsy of the deceased was got conducted. The autopsy was done by Dr. Komal Singh. According to the autopsy report, there were around six external abrasion injuries on the deceased and the cause of death was opined as asphyxia subsequent to throttling and the manner of death- homicide. Throttling was sufficient to cause death in the ordinary course of nature. All injures were anti-mortem and were possible in a fight.
FIR No. 831/2007Police Station : Tilak Nagar Page No. 5/83 Initially, the FIR was registered under section 304 IPC, which later during investigation was converted into section 302 IPC. The further investigation was done by Inspector Surender Dev, who arrested the accused of this case on 03.03.2008 except accused Tarun @ Lucky and after completing the investigation, the charge-sheet was filed in this case on 29.05.2008. The learned Magistrate committed the case to Sessions Court on 02.06.2008.
6. The co-accused Lucky was arrested later on against whom the police filed supplementary chargesheet on 27.11.2008 which was also committed to Sessions Court on 05.12.2008.
7. On 21.04.2010, charge was framed against all the five accused under section 302 and 427 read with 34 of the Indian Penal Code to which all of them did not plead guilty and claimed trial.
8. During trial, the prosecution has examined twenty-two witnesses. The case is based on the eye witness's account. There are five eye-witnesses in this case, who claimed to have seen the incident. These are the complainant Satish Malik PW-1, his wife Anita Malik PW-2, Komal Suri PW-12 and Annu Suri PW-11 the daughter's in-law of the deceased, and Vikram Gupta PW-17, an outsider. Since they are the eye witnesses of the case, the entire case is based on the edifice of their testimonies. Rest of the witnesses are police witnesses involved in the investigation of the case, doctors and sons of the deceased whose evidence is taken for corroborative purpose.
FIR No. 831/2007Police Station : Tilak Nagar Page No. 6/83
9. The first witness examined by the prosecution is the complainant Satish Malik PW-1. According to his testimony, on 31.12.2007, at around 1:00/1:30 PM, he and his family was at the house of his in laws, at Tilak Nagar. Komal Suri received a call from her husband Sanjay Suri, that Simmi and other persons were creating ruckus (shor-sharaba) at the shop of Madan Lal Suri. The name of the shop was M/s Suri Silk Store in Tilak Nagar Market. Komal informed him about the call after which he, his wife Anita Malik, Komal and Annu went to this shop by car. All the four entered the shop and saw Simmi, her mother and two bhabis and some other females in the shop. They were quarreling with Madan Lal Suri. They threatened Madan Lal Suri, Sanjay Suri and Pradeep Suri in the shop. Police also reached there and public persons gathered outside the shop to see the incident. The police asked them to accompany it to the police station. The police took Simmi Suri, her mother, Sanjay Suri and Pradeep Suri to the police station. At the time of leaving for the police station, Simmi's mother and bhabhi threatened this family that they will not be spared (aaj hum tumhe chhodenge nahin, sabak sikha ke rahenge). Madan Lal Suri was inside the shop. This witness Satish Malik, asked him to sit on the chair at the counter of the shop. While they were asking Madan Lal Suri as to what happened, Mulkh Raj, Bobby, Bunty and Vinay and some other persons in which Tarun @ Lucky (nephew of Mulkh Raj) was also there, entered the shop. One person FIR No. 831/2007 Police Station : Tilak Nagar Page No. 7/83 stood outside the shop with a hockey in his hand. These accused entered the shop and abused Madan Lal Suri, to terrorise them. They started quarreling with Madan Lal Suri. First Bunty aggressively threatened Madan Lal Suri and said that he will not spare Mr. Suri in the following words "aaj hum tujhe nahin chhodenge aur mein apne saath bande le kar aaya hoon". Bunty pulled Madan Lal Suri by his collar (girebaan) and dragged him out of the counter. They tried to intervene and save Madan Lal Suri from Bunty. This witness, his wife Anita and Komal saved Madan Lal Suri from Bunty and separated them. Then Bobby came from behind Madan Lal Suri and grasped him by putting his arm around his neck. He tried to pacify these accused not to fight with Mr. Suri but they did not listen and kept beating Mr. Suri. Kamal @ Bobby had tightly put his arm around the neck of Mr. Suri due to which he was not able to speak. The face of Madan Lal Suri became red. Mulkh Raj exhorted loudly "maaro aaj chodna nahee". Mulkh Raj, Vikas, Vinay then beaten Mr. Suri with kicks and fists. Kamal @ Bobby who had put his arm around Mr. Suri shook him violently after which Madan Lal Suri fall on the ground. When these eye witnesses resisted Kamal, Mulkh Raj, Vikas and Vinay, the fifth accused Tarun Phool @ Lucky sat on the legs of Mr. Suri and hit him with fists on his chest. Mulkh Raj kept exhorting that the accused will not spare Mr. Suri (aaj hum inko chodengay nahee). Vikas @ Bunty jumped on the chest of Madan Lal Suri and put both FIR No. 831/2007 Police Station : Tilak Nagar Page No. 8/83 his knees on his chest. Then with his right knee, he hit the neck of Madan Lal Suri once or twice. While placing one of his knee on the chest of Mr. Suri and other on his neck, Vikas punched on the face of Madan Lal Suri. He tried to pull Vikas @ Bunty from the chest of Madan Lal Suri. His wife tried to pull Tarun Phool. When he and his wife succeeded in pulling them away from Madan Lal Suri, Mulkh Raj pressed the neck of Madan Lal Suri with both hands and shook him saying that today they have to kill him. (aaj tera humney kaam tamam karna hai). He noticed that the pant of Madan Lal Suri was wet as urine passed out of him. Mr. Suri was not moving. Komal said to his wife that something has happened to Mr. Suri. When these witnesses were resisting and holding back the accused from Mr. Suri, the accused pushed the settees (furniture of the shop) and also the mannequins and other articles towards them. After this incident, the accused ran away. He identified all accused in the court except Mulkh Raj whose identity was not disputed due to his exemption. They took Madan Lal Suri to Khanna Nursing Home in Janak Puri where the doctor pronounced Mr. Suri dead on arrival. Dr. Khanna called the police. Police arrived there. After waiting for some time, he came back to the house of in-laws in Tilak Nagar. In the evening, police called him in the shop Suri Silk Store where the incident took place. The shop was opened. Police inspected the shop. The photographer took the photographs of the shop. He proved his complaint Ex.PW1/A, the FIR No. 831/2007 Police Station : Tilak Nagar Page No. 9/83 basis of FIR. He said that site plan Ex.PW1/B was also prepared. On 20.05.2018, he was called again at the shop where one inspector after making enquiry from him, prepared a scaled site plan. After post- mortem, the dead body was given to the sons, the receipt of which is Ex.PW1/C, was also signed by him. He was duly cross examined by learned counsels for all the accused in detail.
10. The next important witness is Anita Malik PW-2, the wife of the complainant and daughter of deceased Mr.Suri. According to her evidence, on 31.12.2007, when she, her husband and children were at her parental home in Tilak Nagar, during the winter vacations of her children, she came to know about the matrimonial discord of her Bhabhi and her brother Pradeep after which Simmi had left the matrimonial home. On that day, Komal told them that Simmi, her mother and her three bhabhis, their aunt (mausi) and her daughter Ranjana were on the shop Suri Silk Store and quarrelling with her father Mr. Suri and two brothers at the shop. She, her husband and her two sisters-in-law Anu and Komal went to the shop. PCR van was already there. The police officials took away Simmi, her mother, her aunt and brothers of this witness Sanjay and Pradeep. Simmi's mother threatened them by saying that they will tell how to harass somebody's daughter (aaj hum tumhe batayenge ki kisi ki beti ko kaise tang kiya jata hai). This witness, her husband and both her sisters-in-law went inside the shop. They inquired from Madan Lal FIR No. 831/2007 Police Station : Tilak Nagar Page No. 10/83 Suri about the incident. Madan Lal Suri told her that Simmi, her mother and her aunt (mausi) had come there and were fighting with him. While Madan Lal Suri was narrating his ordeal, all the five accused entered the shop shouting filthy language in aggressive mood. Mulkh Raj abused her father and banged the counter with his fist. He said that he will not spare them (aaj hum tujhe chhodengey nahi). Kamal @ Bobby also abused Madan Lal Suri. The husband of this witness tried to pacify him saying that Mr Suri is an old man and should not be abused like this. Then Kamal @ Bobby hit the head of Madan Lal Suri by his fist and pulled Mr. Suri by his collar and dragged him. These witnesses intervened and saved Mr. Suri. Kamal @ Bobby caught Mr. Suri with his arm tightly around his neck and shook him violently 3-4 times. The other accused Mulkh Raj, Vinay, Vikas @ Bunty and Tarun @ Lucky beaten Madan Lal Suri with kicks and fists. Mr. Suri fell on the ground. After than Tarun @ Lucky sat on legs of Mr. Suri. Mulkh Raj exhorted not to spare Mr. Suri (aaj chhodna nahi hai, maroo innko). She saw Mulkh Raj pressing the neck of Madan Lal Suri. When she tried to push Tarun, Vikas @ Bunty jumped on the chest of Mr. Suri. Vikas put one knee on the chest and other knee on the neck of Mr. Suri. With his knee, he pressed the neck of Mr. Suri. Her husband Satish Malik pulled Vikas back. Just then Komal on seeing her father motionless on the ground shouted- 'see what happened to Mr. Suri' (dekho didi papa ko kya ho FIR No. 831/2007 Police Station : Tilak Nagar Page No. 11/83 gaya). Mr. Suri passed urine in his clothes. Hearing Komal, all accused persons ran away from the shop. She and Komal came forward and saw that Mr. Suri was had no movement. Komal immediately called up Sanjay who was in police station and told him about the incident. Sanjay came back to the shop and saw that his father was motionless. Satish Malik brought the car to take Mr. Suri to hospital. Sanjay asked neighbouring shopkeepers for help. They came and helped to shift Mr. Suri in the car. This witness identified all accused in the court except Mulkh Raj whose identity was not disputed during his evidence as he was exempted from appearance on that day.
11. The next eye-witness is PW-11 Annu Suri, who is the daughter in law of the deceased Madan Lal Suri. According to her evidence, her husband Pawan Suri runs a cloth shop in Old Market, Tilak Nagar Delhi. The name of the shop is Suri Textile. They also have a cloth shop in main market, Tilak Nagar whose name is Suri Silk Store. Suri Silk Store was run by her father-in-law, Madan Lal Suri and brothers- in-law (devars) Sanjay Suri and Pradeep Suri. On 31.12.2007, she was at her house. Her sister-in-law(devrani) Komal Suri, informed her that a phone call has come from Suri Silk Store that her other sister-in- law(devrani) Simmi and her family members were quarrelling there. She, Komal Suri, Anita Suri and Satish Malik who were in the house, reached that shop at around 1/2.00 PM. They saw that some people FIR No. 831/2007 Police Station : Tilak Nagar Page No. 12/83 had gathered outside the shop and PCR policemen took Simmi, Simmi's mother, Simmi's sister-in-law(bhabhi), Simmi's aunt (mausi), daughter of Simmi's aunt, Sanjay and Pradeep Suri in the PCR van. These four witnesses went inside. Madan Lal Suri was sitting in the shop. They asked him-'what happened'. During the discussion, Mulkh Raj, his three sons, Kamal, Vikas and Vinay and Tarun, who was the son of Mulk Raj's brother entered into the shop. They abused Madan Lal Suri and said that they will not spare him (aaj tujhe nahi chhodenge). Satish Malik tried to pacify them and asked them to refrain from talking like this with Mr. Suri. Mulkh Raj did not give any heed to this advice and quarrelled with Madan Lal Suri and beaten him. They even pushed these witnesses (dhaka mukki ki) when they tried to intervene. Kamal caught Mr. Suri while Mulkh Raj, Vikas and Vinay beaten Mr. Suri with fists. Madan Lal Suri fall on the ground. Vikas climbed on the chest of Mr. Suri. Tarun and all accused then assaulted Mr. Suri with fists and kicks. Due to this thrashing, Madan Lal Suri urinated in his clothes. These accused threw the goods lying in the shop and fled away from the spot. Some family member informed Sanjay Suri who reached the shop. Satish Malik and Sanjay Suri took Mr. Suri to Khanna Nursing Home where he was declared brought dead. This witness identified all the accused in the court.
12. Next eye-witness is PW-12 Komal Suri. According to her evidence, on 31.12.2007 at around 1-1.30 PM she received a FIR No. 831/2007 Police Station : Tilak Nagar Page No. 13/83 telephone call from her husband Sanjay Suri that Simmi, her mother, her mausi Ranjana who is daughter of her mausi and her sisters-in-law had come to their shop at Tilak Nagar and they were quarrelling with Madan Lal Suri, Sanjay Suri and Pradeep Suri. This witness talked about it to Anu, Anita and Satish Malik, who were present in her house. She, then with the aforesaid three, went to the shop and saw that Simmi and her relatives were hurling abuses and police officials were also present there. The police took Simmi and her relatives, Sanjay and Pradeep with it to the police station. While leaving, Simmi and her relatives said that they will teach them a lesson (aaj inko sabak sika ke choddege). When they were talking with Mr. Suri about the incident, accused Mulkh Raj, Kamal, Vikas and Vinay and Tarun entered the shop. In a threating manner, they thumped the counter of the shop by their hands and said that these accused will not spare them (aaj hum tumko chhodege nahi). Then Bunty grabbed the collar of Mr. Suri and pulled him out of the counter. Bobby grabbed the neck of Mr. Suri. Mulkh Raj, Bunty and Vinay then knocked down Mr. Suri with kicks and fist. Tarun then sat on Mr. Suri's legs and beaten him. Satish Malik asked the accused not to beat Mr. Suri but they did not listen to him. These witnesses tried to pull the accused Tarun. But then Bunty sat on the chest of Mr. Suri and started pressing his neck with his legs. Mulkh Raj was exhorting not to spare them (aaj inko chhodna nahi). Mr. Suri lost his consciousness and urinated in his clothes. She FIR No. 831/2007 Police Station : Tilak Nagar Page No. 14/83 shouted- 'look what happened' (dekho kya ho gaya). The accused then damaged the articles in the shop and ran away. She called her husband on phone and informed about the incident after which her husband Sanjay Suri came on the shop. Sanjay and Satish took Mr. Suri to hospital but by that time he was dead. They remained in the shop for some more time. Then with the help of neighbours, shut down the shop and came back to their house. This witness identified all accused in the court except Mulkh Raj whose identity was not disputed during his evidence as he was exempted from appearance on that day.
13. The last eye witness, though I must not say about him 'not the least', is Vikram Gupta PW-17. He watched the scrimmage not closely but from his kiosk on the footpath outside the shop. According to his testimony, he was doing business of Heena Art in front of Suri Silk Store. He was present on his 'footpath shop'(mushroomed everywhere in Delhi and not an uncommon sight in traditional markets) on 31.12.2007. At around 1:00 PM, Simmi Suri, her mother and 2-3 other ladies came to the shop Suri Silk Store and entered it while abusing Sanjay Suri and Pradeep Suri. After sometime PCR van came and took Simmi Suri, her mother and those 2-3 ladies, with Pradeep Suri and Sanjay Suri. When they were sitting in the PCR van, the wife, sister-in-law Annu Suri, sister Anita Malik and brother-in-law of Sanjay Suri reached the shop. Madan Lal Suri was inside the shop. They were talking to each other. Then father-in-law and three FIR No. 831/2007 Police Station : Tilak Nagar Page No. 15/83 brothers-in-law of Pradeep Suri with 2-3 other persons entered the shop. One of them stood outside. These persons beaten Mr. Madan Lal Suri. They pushed him on the floor and beaten him with kicks and fists. When Madan Lal Suri became unconscious, they fled from the spot. After 2-3 minutes, Sanjay Suri with the help of his sister Anita and brother-in-law Satish took his father Mr. Suri to the hospital. This witness identified all the accused persons in the court.
14. So, these are the five eye witnesses of this case. Pradeep Suri and Sanjay Suri are the sons of deceased Mr. Suri, who are also examined by the prosecution. Sanjay Suri reached the place of crime immediately in few minutes on receiving the information about it by complainant. He was nearby in the police station. Pradeep Suri's evidence is relevant to expose the matrimonial discord with his wife, the root cause of this case.
15. Sanjay Suri examined as PW-13, has deposed that on the date of incident that is 31.12.2007, he was present in his shop Suri Silk Store with his father Madan Lal Suri and younger brother Pradeep. One week ago, Pradeep's wife Simmi left the house with her three children for her parental house after some dispute. At around 1:00 PM, Simmi, her mother, maternal aunt (mausi), daughters of her maternal aunt (mausi) came to their shop, abused and quarrelled with them. They were implacable though he tried to pacify them. When the quarrel did not cease, he called the police at 100 number. He informed his wife FIR No. 831/2007 Police Station : Tilak Nagar Page No. 16/83 Komal Suri too, who was at home. PCR van reached immediately. Police asked them to come to the police station. All except Madan Lal Suri sat in the police van. By that time, Satish Malik, Anita Malik, Anu Suri and Komal Suri came there. When they were about to start to the police station Simmi's mother called her husband and asked him to take revenge saying (hamari sari izzat chali gayi hai, kuch karo aur inse badla lo). After sometime, he received a call from Satish Malik that the father-in-law and brothers-in-law of Pradeep with some other persons came to the shop and beaten his father Mr. Suri and ran away after damaging the articles of the shop. He immediately rushed back and saw that the goods in the shop were lying scattered. Satish Malik, Anita Malik, Anu Suri and Komal Suri were present in the shop while his father Madan Lal Suri was lying unconscious on the floor and had urinated in his clothes. He realised that his father was not breathing (unki sanse nahi chal rahi hai). He took his father Mr. Suri to Khanna Nursing Home, Janak Puri, Delhi, where Mr. Suri was declared brought dead. Police took his father's corpse to DDU hospital for autopsy. On 01.01.2008, to complete the formalities of autopsy, he identified the dead body of his father through memo Ex.PW13/A and after post-mortem the dead body was handed over to him through memo Ex.PW1/C.
16. PW-14 is Pradeep Suri, whose matrimonial discord with his wife led the situation to stoop so low. According to his evidence, there FIR No. 831/2007 Police Station : Tilak Nagar Page No. 17/83 was some issues between him and his wife Simmi due to which she left for her parental home. On 31.12.2007, he, his elder brother Sanjay and his father Madan Lal Suri were in the shop. At around 1-1:15 PM, Simmi, her mother, maternal aunt, daughter of maternal aunt came to shop and started abusing and quarrelling with them. He tried to placate them (hath pav jode, magar wo nahi maani, ladte jhagate rahe). Sanjay called police and also informed at his home. PCR van came at the shop. When the PCR officials were taking him, his brother Sanjay Suri, his wife Simmi, Simmi's mother, her mausi and mausi's daughter to police station, Satish Malik, her sister Anita, bhabhis Komal and Annu reached there. Pradeep and his brother with Simmi Suri and her relatives were taken to the police station by PCR. After some time, Sanjay received a call on his mobile and left the police station. Later on, he came to know that his father-in-law and brothers in law come at the shop, beaten his father Madan Lal Suri and after damaging certain articles, fled away. He came to know that his father Madan Lal Suri was taken to Khanna Nursing Home and was declared brought dead there. Later the dead body of his father was shifted to DDU Hospital for autopsy where he identified it vide memo Ex.14/A. The body after autopsy was given to them through memo Ex.PW1/C.
17. These are the public witnesses of this case. These are all directly related to the deceased and are witnesses to the facts FIR No. 831/2007 Police Station : Tilak Nagar Page No. 18/83 constituting the alleged crime. The remaining are formal witnesses but important to the decision of this case.
18. PW-5 is Dr.Vivek Khanna, who first examined the deceased. Madan Lal Suri was rushed to his hospital. According to him, the patient was brought dead. There was no spontaneous respiratory movement seen. There was no evidence of any external injury. He prepared the report Ex.PW5/A. In cross-examination, he admitted that he made a call to the police and that the family of Mr. Suri were his regular consultants. He also admitted that Mr. Suri was distantly related to him.
19. PW-10 is the most important witness from the point of view of medical evidence. She is the doctor who conducted autopsy of Madan Lal Suri. Her name is Dr.Komal Singh. According to her testimony, the corpse of Mr Suri was brought by SI Yogesh Tyagi. There was history of quarrel on 31.12.2007 at 1:00 pm. As per brief history Madan Lal Suri was beaten by few persons by fists and kicks. He was brought dead to Khanna Nursing Home on 31.12.2007. During post mortem, on internal examination she found the neck clotted and the liquid blood approximately 20 ml present over the neck muscles. Left cornu of hyoid born was fractured and clotted blood was present in and around it. Left cornu of the thyroid cartilage tilted posteriorly. And the 5ml of clotted blood was present over the posterior surface of cricoid cartilage. All other body were congested. Time since death in FIR No. 831/2007 Police Station : Tilak Nagar Page No. 19/83 the present case was approximately 23 hours prior to the conducting of the post-mortem. After conducting the post-mortem, she opined that the cause of death was due to asphyxia subsequent to throttling. Manner of death was homicide and throttling was sufficient to cause death in ordinary course. All injuries were antemortem in nature. At the time of conducting post mortem, blood sample of the deceased in gauze piece, viscera of the deceased and wearing clothes were sealed with the seal of the hospital and were handed over to investigating officer along with inquest papers. Her post-mortem report is Ex.PW10/A.
20. PW-15 Daman Kumar is the photographer. On 01.01.2008, he was called by investigating officer PW-16 SI Yogesh Tyagi at shop where the incident took place. He took eight photographs from his digital camera Mark PW15/P1 to PW15/P8.
21. Rest are police witnesses involved in the investigation of this case. I will explicate on their testimonies briefly as they are repetitive in nature.
22. PW-3 Head Constable Satyawan was the duty officer on the fateful day. He proved the registration of FIR Ex.PW3/A on the basis of 'ruqa' (Arabic for a chit, letter or note still frequently used in police documentation) received at around 10:55 PM. The FIR was under
section 304/34 IPC and the investigation was assigned to SI Yogesh Tyagi. He also proved his endorsement on the 'ruqa' Ex.PW3/B. FIR No. 831/2007 Police Station : Tilak Nagar Page No. 20/83
23. PW-4 ASI Nirmala was also the duty officer on that day and proved the information regarding quarrel at Tilak Nagar, recorded vide DD10A Ex.PW4/A at 2:10 PM. The information was assigned to ASI Satpal Singh. At around 3:40 PM, one more information was received from Khanna Nursing Home about the death of Madan Lal. This was recorded through DD No. 14-A Ex.PW4/B. PW-20 Head constable Umesh Pradhan was duty officer staff on the date of incident. At 1:50 PM duty officer Nirmala Devi PW-4, gave him a copy of DD No. 9A which he transmitted to ASI Satpal Singh PW-9. PW-21 Head constable Grace deposed that on 25.09.2008 she was posted at police station Tilak Nagar and was the DD writer. At 3:30 PM, she received a phone call by HC Ajay Pal of police station Punjabi Bagh. She converted that into DD no. 38B, Ex.PW21/A and handed it to MHC(R) for information of the investigating officer. PW-22 ASI Jacab Methew's evidence is to the affect that on 31.12.2007, he was in police station. At about 2:10 PM, head constable Nirmala gave him a copy of DD No. 10A, to transmit it to ASI Satpal Singh. At about 3:40 PM head constable Nirmla handed him DD No. 14A to give it to ASI Satpal. He met Satpal outside police station and conveyed the information to him.
24. PW-6 constable Abhay was with ASI Satpal during the preliminary investigation of this case.
FIR No. 831/2007Police Station : Tilak Nagar Page No. 21/83
25. ASI Satpal is PW-9. On 31.12.2007, he was on emergency duty. DD No.10A was assigned to him on which he and constable Abhay went to Tilak Nagar Market. He came to know that the injured was already taken to hospital by the PCR and the shop was closed. When they were going to the police station, another information was received through DD No. 14 A from Khanna Nursing Home. He reached Khanna Nursing Home where he came to know that Mr. Suri was dead. He could not find any witness of the incident in the hospital. He took the MLC of the dead and send the body to DDU hospital and preserved it through his application Ex.PW9/B. He came back at Tilak Nagar Market and could not find any witness there also. At the place of incident, he met Satish Malik. He recorded the statement of Satish Malik Ex.PW1/A, prepared the 'ruqa' Ex.PW9/C, and sent constable Abhay for registration of FIR. The investigation was then taken up by Sub-Inspector Yogesh Tyagi PW-16.
26. There were two investigating officers, one is sub-inspector Yogesh Tyagi and other was inspector Surender Dev, who could not be examined as a witness by the prosecution because of his untimely death.
27. PW-16 sub-inspector Yogesh Tyagi was assigned investigation on 31.12.2007, that is the date of incident itself. He went to Suri Silk Store and met the complainant Satish Malik and ASI Satpal. He called the photographer Daman Kumar at the spot, who photographed the FIR No. 831/2007 Police Station : Tilak Nagar Page No. 22/83 scene of crime. He inspected the spot and prepared the site plan Ex.PW1/B at the instance of complainant. He recorded statements of eye witnesses Annu, Anita and Komal. He got postmortem of the deceased conducted in DDU Hospital. Doctor gave him three sealed packets of certain exhibits related to the deceased. He recorded the statement of some other police witnesses and Vikram Gupta and handed back the investigation on 17.01.2008 on the instruction of SHO concerned.
28. PW-8 is head constable Pawan Kumar. He was in investigation with inspector Surender Dev. Since inspector Surender Dev could not examined due to his death before his evidence, the testimony of this witness is important for the investigation done by inspector Dev. It has come in the evidence of PW-8 that on 03.03.2008 in the morning, the accused Mulk Raj, Kamal, Vikas and Vinay Kumar came to the police station with their advocate. Inspector Surender Dev interrogated and arrested them through arrest memos Ex.PW8/A, Ex.PW8/A1 (Vinay), Ex.PW8/B, Ex.PW8/B1(Kamal), Ex.PW8/C, Ex.PW8/C1(Vikas), Ex.PW8/D, Ex.PW8/D1 (Mulk Raj).
29. PW-19 ASI Ajay Pal Singh has proved the arrest of fifth accused Tarun. According to his evidence on 24.09.2009, he, head constable Rajnesh Kumar and constable Sanjeev went to Patiala Punjab. With the help of a secret informer, he arrested the accused Tarun @ Lucky who was a proclaimed offender in this case. He FIR No. 831/2007 Police Station : Tilak Nagar Page No. 23/83 arrested the accused Tarun through arrest memo Ex.PW-19/A. He proved the complaint Ex.PW-19/F and the order of the court Ex.PW- 19/G by which the accused Tarun was declared proclaimed offender.
30. Next important witness is PW-18 ASI Madan Lal. He was also involved in the investigation with inspector Surender Dev and proved some of the aspects of it in relation to the investigation done regarding accused Tarun, not of much relevance to be reproduced here.
31. Lastly PW-7 Inspector Mahesh Kumar who has made the scaled site plan Ex.PW7/A in this case has proved it.
32. This is the overall evidence led by the prosecution in this case.
33. After the prosecution evidence was over, the accused were examined under section 313 Cr.PC and the incriminating circumstances appearing in evidence against them were put to them. All the accused denied the evidence against them. The accused Mulkh Raj has stated that he has not gone to the place of occurrence as alleged. He and his relatives have been falsely implicated in this case as his daughter's in-laws wanted to usurp her and her children's rights and share in the properties and assets belonging to her husband and in laws. Similar is the answer given by the accused Vikas, Tarun Phool, Vinay and Kamal. The accused have led defence evidence and examined six witnesses.
34. DW1 ASI Anand Singh was examined to prove the record of PCR form numbers 786, 890, 1038 all dated 31.12.2007. But these FIR No. 831/2007 Police Station : Tilak Nagar Page No. 24/83 records were destroyed and could not be proved. DW-3 is head constable Ravi Dutt, who was summoned by the defence to prove an information received by Pooja Phool through right to information(RTI). But this witness could not prove that information. DW-4 sub-inspector Rajender Sharma was also summoned for the same purpose. He proved the document Ex.DW4/A which is the reply of RTI. DW-5 Neeraj Kumar, Additional Police Commissioner proved this reply Ex.DW4/A. DW-6 is Pooja Phool, the wife of the accused Kamal Kumar. She has stepped into the witness box for the defence, to prove the reply Ex.DW4/A. She also proved the envelop Ex.DW6/A, receipt of fees Ex.DW6/B, copies of PCR forms mark DW4/B, and mark DW4/C. She also proved an unattested copy of PCR form Ex.DW6/A.
35. DW-2 is Gurvinder Sarna. He has been brought by the defence to prove the alibi of all the accused. He deposed that these accused have their shops near his shop in Mayapuri Phase-II. The shop remains closed only on Sundays.
36. This is the overall defence of the accused.
37. I have heard the final arguments for prosecution advanced by learned Public Prosecutor Sh. Santosh Kumar and for defence by Sh. Hari Haran Sr. Advocate and Sh. R.A. Bhatt, counsels for accused persons. Sh. Masood Hussain learned counsel for complainant has FIR No. 831/2007 Police Station : Tilak Nagar Page No. 25/83 filed written submissions. The accused have also filed their written submissions.
38. Learned Public Prosecutor has argued that the entire case is based on the testimonies of eyewitnesses who were already present on the scene before the incident and one or two were even minorly injured during the intervention. He further stated that there is nothing in the cross-examination of the eyewitnesses and other prosecution witnesses which could be said to be sufficient to create a doubt in the story of the prosecution. All five eyewitnesses have given a true and reliable account of how the offence was committed in this case and there is nothing to disbelieve their unflinching and cogent testimony on this issue. He stated that the evidences given by the prosecution witnesses are so meticulously flawless that it points to only one conclusion that the prosecution is able to prove its case beyond reasonable doubt which is the required standard for it. He stated that the testimony of the complainant and other public witness were consistent throughout. He has read the evidence and the important documents to connect the role of the accused with the crime alleged. He stated that the prosecution has broken the back of this case by examining these eyewitnesses and corroborating them with medical evidence and that the accused have been duly identified by the eye witnesses. The postmortem report has clearly established that the deceased was murdered. The motive of the crime has been proved by FIR No. 831/2007 Police Station : Tilak Nagar Page No. 26/83 the prosecution. It is stated by him that the case has been proved beyond reasonable doubts and all the accused deserves to be convicted for the offences with which they are charged.
39. On the other hand, the defence has focused on the issues relating to the delay in registration of FIR, contradictions in the testimonies of the witnesses, incongruity in the oral evidence and medical report, MLC of the deceased showing no injuries on his body, enmity between the parties, claiming complainant a chance witness making false complaint, the witnesses being interested and partisan, no independent witness of the incident, no CCTV footage and no proper investigation in this case. I will deal with these submissions ahead in this judgment.
40. Now to summarise the case, the deceased Madan Lal Suri was battered to death by the five accused of this case in his shop. These accused were related to his daughter-in-law. There was matrimonial dispute between Pradeep Suri, the son of the deceased and his wife. The assault was witnessed by four other family members who narrated the ordeal in evidence and one outsider, who are eye-witnesses of the case. The postmortem report gives us the cause of death asphyxia by throttling. Therefore, the case is based on the eye-witnesses testimonies relating to the cause of death of Mr. Madan Lal Suri and not on circumstantial evidence.
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41. A witness that saw the happening of the incident being inquired by the court is an eyewitness. Reliable evidence of eyewitnesses cannot be disregarded in the absence of strong reasons. Conviction can be based upon the testimony of sole eyewitness if the same is found wholly reliable. In case, if his testimony is not found to be wholly reliable, the court may insist upon some independent corroboration.
42. The prosecution has five eyewitnesses to this matter. They are its star witnesses. They are the linchpin of the prosecution case. Eyewitnesses play an important role in the criminal justice system. The quality of evidence of an eyewitness depends on many factors prominent among them are his view in which the crime is committed, his confidence with respect to the accuracy of the description of the crime and identification of the accused and his description, the amount of attention the witness paid to the crime during its occurrence, the probability of the witness being present at the place of incident, the accuracy and probability of what he is defining etc. The law related to the appreciation of evidence of eyewitnesses is completely settled that generally the testimony of eyewitness of the incident is considered credible unless and until it is specifically shown or proved to have a taint for any reason on which it is assailed. Generally, the courts tend to believe what the eyewitnesses depose in the court and it is only when there exists grave and material discrepancies and contradictions FIR No. 831/2007 Police Station : Tilak Nagar Page No. 28/83 in their statements which compels the court to think and doubt that whether the eyewitness is giving a truthful account, it can come in the domain of suspicion. When the tenacity and doggedness of the eyewitness is suspicious, when the truthfulness of the testimony of the eyewitness is shrouded in grave clouds of suspicion and falsity, the court may disbelieve that witness or may look for such corroboration of his evidence which are capable of removing the blemish from his evidence. However, the contradictions and omissions which are not material regards being to the facts of the case, those can be overlooked. Way back in 1957, in Vadivelu Thevar v. The State of Madras, A.I.R. (1957) S.C. 614, Hon'ble Supreme Court has categorised the witnesses in three categories. It was held that as a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. Generally speaking, oral testimony in this context may be classified into three categories, namely:(1) Wholly reliable, (2) Wholly unreliable, (3) Neither wholly FIR No. 831/2007 Police Station : Tilak Nagar Page No. 29/83 reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
43. In Rammi alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 256, Hon'ble Supreme Court observed that when eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
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44. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court stated the legal position that the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.
45. Further, in case of State v. Saravanan, AIR 2009 SC 152, it was held that the court can overlook minor discrepancies on trivial matters which do not affect the core of the prosecution case. In State of U.P. v. Krishna Master, AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that it is the duty of the court to separate falsehood from the truth, in sifting the evidence. At the same time, the eye-witness testimony must be credible and reliable. It should not be contradicted by other eyewitnesses or by the medical and forensic evidence, if any.
46. In Narayan Chetanram Chaudhary & Anr. vs. State of Maharashtra reported in AIR 2000 SC 3352, Hon'ble Supreme court reiterated the law laid down in its previous judgements and observed that there are bound to be some discrepancies between the narrations FIR No. 831/2007 Police Station : Tilak Nagar Page No. 31/83 of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye- witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not failing within a set pattern is unproductive and a pedantic exercise.
47. In Darya Singh and others vs State of Punjab, (1964) 3 SCR 397, Hon'ble Supreme Court upheld the conviction of the appellant in a murder case based on the testimony of eye witnesses who were near relatives and observed that there can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, FIR No. 831/2007 Police Station : Tilak Nagar Page No. 32/83 criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, it was held that the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal court to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. If the offence has taken place as in the present case, in front of the house of the victim, the fact that on hearing his shouts; his relations rushed out of the house cannot be ruled out as being improbable, and so, the presence of the three eye- witnesses cannot be properly characterised as unlikely. If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised. In doing so, it may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he FIR No. 831/2007 Police Station : Tilak Nagar Page No. 33/83 would deliberately omit to name the real assailant and substitute in his place the name of enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.
48. Hon'ble Supreme Court in State of Himachal Pradesh v. Lekh Raj & Anr., 1999 (9) Supreme Today 155, dealing with discrepancies, contradictions and omissions held that discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions.
FIR No. 831/2007Police Station : Tilak Nagar Page No. 34/83 Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. Mere congruity or consistency is not the sole test of truth in the depositions. In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
49. Again, recently in Bhagchandra vs State of Madhya Pradesh, 2021 SCC Online SC 1209, Hon'ble Supreme Court upheld the conviction of the appellant in a murder case based on the testimonies of eye witnesses who were close relatives of the deceased like wife. While referring to other authorities on this issue, observed that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence FIR No. 831/2007 Police Station : Tilak Nagar Page No. 35/83 as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time FIR No. 831/2007 Police Station : Tilak Nagar Page No. 36/83 of occurrence and threat to the life. It is not un-often that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, the court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case. It could thus be seen that what is required to be considered is whether the evidence of the witness read as a whole appears to have a ring of truth. It has been held that minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, would not ordinarily permit rejection of the evidence as a whole. It has been held that the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. What is important is to see as to whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. It has been held that there are always normal discrepancies due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, FIR No. 831/2007 Police Station : Tilak Nagar Page No. 37/83 shock and horror at the time of occurrence. It is the duty of the court to separate falsehood from the truth in every case.
50. Now with these legal parameters regarding appreciation of evidence of eyewitness and being conscious of the fact that the burden of proof in a criminal trial is always on the prosecution and it never shifts and to secure a conviction, the prosecution has to prove its case beyond reasonable doubt on the basis of acceptable evidence, I will proceed for the appreciation of evidence. It is a settled principle of criminal law jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. Though it is neither possible nor prudent to have a straight-jacket formula or principle which would apply to all cases without variance and every case has to be appreciated on its own facts and in light of the evidence led by the parties. It is for the court to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt.
51. Now coming the appreciation of evidence. The case is based on the evidence of five witnesses, four of whom, who were relatives of Madan Lal Suri, were inside the shop. They not only saw the incident but tried to intervene and some even hurt though not with conspicuous injuries. The fifth eye-witness was standing outside the shop, who saw FIR No. 831/2007 Police Station : Tilak Nagar Page No. 38/83 it from there. Though not related to Mr. Suri, but he was connected to the son of deceased as his brother was the tenant of Pawan Suri, the son of the deceased. In this manner all the witnesses are connected with each other in one way or the other.
52. The most important evidence in this case is of the four eye witnesses, who were in the shop with the deceased. These were complainant Satish Malik PW-1 (son-in-law of the deceased), Anita Malik PW-2 (the daughter of the deceased), Annu Suri PW-11 and Komal Suri PW-12 (daughters in law of the deceased). They were in their house together. This is also the house of Madan Lal Suri. Komal received a call from her husband Sanjay Suri about the quarrel in the shop and all four reached the shop within ten minutes as per the evidence of Anita Malik. It means that the shop was not far away from their house and therefore it was not impossible for these witnesses to be at the shop at the relevant time.
53. Each of these four witnesses have described the assault on Madan Lal Suri in their own way. Before explicating on their evidence, I am referring to the manner of assault portrayed in the complaint on which the FIR was registered. Satish Malik in his complaint Ex.PW1/A has stated that after reaching the shop when he was in conversation with Madan Lal Suri about the quarrel, the accused Mulkh Raj, Bobby, Bunti, Vinay and two more persons entered the shop. One remained outside with a hocky in his hand.
FIR No. 831/2007Police Station : Tilak Nagar Page No. 39/83 Mulkh Raj and his sons after entering inside started filthy abuses to his father-in-law Madan Lal Suri and said that they will not spare him. He said that- 'Mr. Suri is an old man and why they are fighting with him'. They did not listen to his request and instead Bobby held Madan Lal Suri. Mulkh Raj, Bunty and Vinay started beating Madan Lal Suri with fists and kicks. When Madan Lal Suri fall down, the two unknown persons also beaten him with fists and kicks. Bunty sat on his chest and kicked him. When Madan Lal Suri lost his consciousness and fall prostate on the floor, these accused after breaking some articles of the shop went away from there. He immediately called his brother-in-law Sanjay and informed him. His father-in-law Madan Lal Suri laid unconscious on the floor and was breathless. He also urinated. sons started with filthy abuses and ended the episode by taking the life of his father-in-law Madan Lal Suri.
54. To understand how these eye witnesses described the assault, I reproduce them verbatim one after other in the following table -
PW-1 Satish Malik - "the aforesaid accused persons who entered in our shop started abusing Madan Lal Suri in order to terrorize us. They started quarreling with Sh.Madan Lal Suri. First of all the accused Bunty in an aggressive mood threatened Sh.Madan Lal Suri by saying that "AAJ HUM TUJHE NAHIN CHHODENGE AUR MEIN APNE SAATH BANDE LE KAR AAYA HOON".
FIR No. 831/2007Police Station : Tilak Nagar Page No. 40/83 He pulled out Sh. Madan Lal Suri by his Girebaan (collor) from the counter of the shop and dragged him out of the counter. We tried to intervene to save Sh. Madan Lal Suri from him. I along with my wife Anita and Smt. Komal saved him from the clutches of the accused Bunty and separated him. In the meantime, the accused Bobby came behind Sh. Madan Lal Suri and held him by putting his arm around his neck. I had tried to make the accused persons understand and had tried to pacify them not to fight with my father in law Madan Lal Suri however they did not listen to me and they kept beating him. Kamal @ Bobby had put his arm tightly around the neck of Madan Lal Suri who was unable to even speak because of him being held in this manner. The face of Madan Lal Suri become red. Mulak Raj exhorted loudly maro aaj chodna nahi hai. Mulak Raj, Vikas @ Bunty and Vinay beat Madan Lal Suri with kicks and fists. Kamal @ Bobby who had put his arm tightly around the neck of Madan Lal Suri shook Madan Lal Suri violently after which Madan Lal Suri fell on the ground. When me, my wife, Komal and Anu tried to hold back Kamal, Mulak Raj, Vikas and Vinay at that time Tarun Phool @ Lucky and one unknown person attacked Madan Lal Suri who had fallen FIR No. 831/2007 Police Station : Tilak Nagar Page No. 41/83 on the ground. Tarun Phool @ Lucky sat on the legs of Madan Lal Suri and hit him with fists on his chest. Mulak Raj kept exhorting that ajj hum inko chodenge nahi. At that time Vikas @ Bunty also jumped on the chest of Madan Lal Suri and put both his knees on his chest.
Thereafter with his right knee he hit blows on the neck of Madan Lal Suri once or twice. Thereafter while placing his one knee on his chest and other on his neck he hit with his hand on the face of Madan Lal Suri. While I was trying to pull Vikas @ Bunty of the chest of Madan Lal Suri, my wife Anita was trying to pull Tarun Phool. When we both succeeded in pulling them away from Madan Lal Suri just then accused Mulak Raj pressed the neck of Madan Lal Suri with both his hands and while shaking him said that aaj tera humne kam tamaam karna hai. When he pulled Vikas@Bunty away from Madan Lal Suri, I noticed that the paijama of Madan Lal Suri was wet with urine. Madan Lal Suri was not moving. Komal told my wife didi dekho daddy ji ko kuch ho gaya hai. When we were trying to hold back the accused persons, they started pushing the settes towards us and also threw the mannequins in the shop and other things towards us. After this all the accused persons ran away."
PW-2 Anita Malik - "While my father was telling us this FIR No. 831/2007 Police Station : Tilak Nagar Page No. 42/83 just then Mulkh Raj, Bobby, Bunty, Vinay along with lucky entered the shop, by using filthy language. All of them were in aggressive mood. Mulakh Raj started abusing my father. Mulakh Raj was banging the counter with his fist by saying that aaj hum tujhe chodenge nahi. Bobby came forward and started abusing my father and my husband tried to pacify him. By telling him that he is an old person and don't abuse him in this manner. By the time Bobby hit a fist on the head of Madan Lal Suri. He also pulled Madan Lal Suri by his collar and dragged him. However we intervened to save Madan Lal Suri. The accused Kamal caught Madan Lal Suri with his arm tightly around his neck and shook him violently 03-04 times. The other accused Mulakh Raj, Vinay, Vikas @ Bunty and Tarun Phool @ Lucky started beating Madan Lal Suri with their kicks and fists. My father fell to the ground. When he fell down, Tarun Phool @ Lucky sat on his legs. Mulakh Raj was exhorting aaj chodna nahi hai maaro inko. I saw Mulakh Raj pressing the neck of my father Madan Lal Suri. When we tried to push Tarun Phool, Vikas @ Bunty jumped on the chest of my father and he put one knee on his chest and the other on the neck of my father. With his knee he was pressing the neck of FIR No. 831/2007 Police Station : Tilak Nagar Page No. 43/83 my father. My husband pulled Vikas @ Bunty back. Just then my sister Komal on seeing my father motion less on the ground shouted dekho didi papa ji ko kya ho gaya. My father had passed urine. Hearing Komal all the accused persons ran away from the shops.
PW-11 Anu Suri - "While we were talking to my father in law, Mulkraj (father of Simi Suri), Bobby, Bunti and Viney (all sons' of Mulkraj), son of brother of Mulkraj who we knew as Lucky at that time and subsequently we came to know about his full name as Tarun and one other person whom I can identify if shown, entered into the shop abusing my father in law and saying that' Aaj tujhe nahi chhudege'. Then our brother in law (Jeeja Ji) Sh. Satish Malik tried to advise them that they should not talk in such a manner with an old age person. Mulkraj did not give any heed to the advice given by Satish Malik.
Thereafter they started quarreling with my father in law and beaten him. They also pushed us (dhakke mukke) when we tried to intervene. Bobby caught hold of my father in law while Mulkraj, Bunti and Vinay started giving fist blows to him. My father in law fell down inside the shop. Thereafter Bunti climbed on the chest of my father in law. Thereafter Tarunful and the other person also started giving fist and kick blows to my father in law.
FIR No. 831/2007Police Station : Tilak Nagar Page No. 44/83 Due to beating my father in law urinated. Thereafter the said persons threw the goods lying in the shop and fled away from the spot."
PW-12 Ms. Komal Suri - "Thereafter, we made enquiry from my father in law Madan Lal Suri while he was telling about the incident, father of Simmi namely Mulak Raj, brothers of Simmi namely Bobby, Bunty, Vinay and her cousin brother namely Tarun and one other person entered into the shop and they were abusing and they forcibly hit the counter of the shop by their hands by saying that "aaj hum tumko chhodenge nahin". After that Bunty caught hold the collar of my father in law and pulled him from behind the counter and accused Bobby caught hold the neck of my father in law. Accused Mulakh Raj, Bunty and Vinay started beating my father in law with kick and fists blow. Due to that my father in law fell down on the ground and accused Tarun also sat on the legs of my father in law and started beating him. My nandoi Satish Malik asked the accused persons not to beat my father in law but they did not listen to him. We tried to pull the accused Tarun in the mean time accused Bunty sat on the chest of my father in law and started pressing his neck by his legs. At that time accused Mulkh Raj was saying that "aaj inko chhodna nahin". During this incident FIR No. 831/2007 Police Station : Tilak Nagar Page No. 45/83 my father in law became unconscious and he also urinated in his clothes. Thereafter, I shouted "Dekho kya ho gaya". After that accused person caused damage to the articles kept in our shop and ran away from there."
55. So, these are the star witnesses of the prosecution's case. These witnesses have given the account of the evidence though with slight variations. They have identified the accused in the court as the assailants of Madan Lal Suri. Since these witnesses and the accused were connected to each other with the marriage alliance in the families, so they know each other well. So, these accused were not unknown faces. Their presence on the spot is neither impossible nor suspicious. They do not fall in the category of chance witnesses. They came to know about the incident through phone and within a few minutes, reached the spot. They all say that they have seen the incident and they have described it. They have described the assault on Madan Lal Suri and it is a fact that after this incident Madan Lal Suri was no more in this world. The complainant says that Bobby held his arm around the neck of Madan Lal Suri. The accused did not pay any heed to his request of pacification and kept beating Mr. Suri. Accused Mulkh Raj, Vikas, Vinay had beaten Mr. Suri with kicks and fists. Kamal wrapped his arm tightly around the neck of Mr. Suri and shook him violently. Mr.Suri was hit with fists on his chest by Tarun FIR No. 831/2007 Police Station : Tilak Nagar Page No. 46/83 Phool. Vikas jumped on the chest, putting both his knees on the chest of Mr. Suri hitting blows on the neck of Mr.Suri. Mulkh Raj pressed the neck of Madan Lal Suri with both his hands and shook him. This witness has assigned some role in the assault, to each accused. Similarly, the wife of the complainant PW-2 also said that she saw Mulkh Raj pressing the neck of Mr. Suri. Tarun Phool and Vikas jumped on the chest of Mr. Suri and put one knee on his chest and other on the neck. With this knee he pressed the neck of her father. PW-11 Annu Suri testified that Bobby caught hold of her father-in-law while Mulkh Raj, Bunty and Vinay beaten him with fists and blows. Bunty climbed on the chest. Tarun Phool and other beaten her father- in-law with kicks and fists. PW-12 Komal deposed that the accused Bunty sat on the chest of her father-in-law and pressed his neck by his legs. Before that accused Mulkh Raj, Bunty and Vinay beaten her father-in-law with fists and kicks. PW-17 Vikram Gupta has not given a detailed statement on the assault. He has merely stated that the accused went at his shop, beaten Mr. Suri, pushed him on floor and again beaten him with fists and kicks, after which Mr. Suri became unconscious.
56. The complainant Satish Malik has given the account of the incident in his initial complaint ExPW1/A and also in court. He is the eyewitness of this case. Eyewitnesses play an important role in the criminal justice system. The quality of evidence of an eyewitness FIR No. 831/2007 Police Station : Tilak Nagar Page No. 47/83 depends on many factors prominent among them are his view in which the crime is committed, his confidence with respect to the accuracy of the description of the crime and identification of the accused and his description, the amount of attention the witness paid to the crime during its occurrence, the probability of the witness being present at the place of incident, the accuracy and probability of what he is defining etc. The testimony of witness Satish Malik in this case inspires confidence. I can say that he is a wholly reliable witness. His evidence deserves to be given due weightage due to its consistency at different stages. The question also arises that why would he, or for that matter any other eyewitness, if they have witnessed the incident, lie. The reason given is that they were inimical to each other due to matrimonial rift in the families. Experience shows that rarely will the father of a girl commit murder of the father of a boy in a marriage alliance because than it will end all prospects of otherwise amicable resolution but it will be equally rare that if that father suffered a natural death as the case of the defence here is, then the family of husband will create a murder out of it, and spin such an eloquent tale of revenge. The evidence of these eye witnesses has to be relied upon unless there are grounds for rejection of their evidence on the basis of major contradictions and discrepancies therein which are absent in this case. The complainant has given the account of incident in his complaint and there was no substantial delay in the registration of the FIR No. 831/2007 Police Station : Tilak Nagar Page No. 48/83 case as the case was registered on the same day. These witnesses did not drift from their allegations throughout the case. They have named the accused as the murderers of Mr. Suri and detailed the acts of each of them. They know each other very well as discussed above due to the marriage alliance. Therefore, the identification of the accused by these witnesses is not an issue. Though in cases of direct evidence motive is generally immaterial but it is clear that there were some differences between the parties and Simmi and her other relatives went to the shop and picked a fight there. PW1 and other witnesses have been duly cross-examined on behalf of accused. Though there have been confrontations in the cross examination but then here is nothing in them to impeach their credit or to suggest that they are not reliable witnesses or have not witnessed the incident or have not spoken the truth. The defence has not produced any proof/material that what can be the reason for the complainant for false implication of accused except a bald assertion in their statements under section 313 CrPC, that the family of the in-laws of Simmi wants to grab her and her children's share. So, these witnesses have clearly deposed about the assault and the manner in which it was done by the accused. All these eye witnesses corroborated the oral evidence of each other.
57. The testimonies of these witnesses are the backbone of the case of the prosecution. Their evidences inspire confidence and there is nothing in them to create any doubt or suspicion on their probative FIR No. 831/2007 Police Station : Tilak Nagar Page No. 49/83 value showing an inherent strength and consistency in what they said. In criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Consistency is the keyword. There must be a string that should join the evidence of all witnesses and thereby satisfying the test of consistency in evidence amongst all witnesses. And it happened here.
58. The postmortem report reveals the injuries on the body of Mr. Suri and the cause of his death. This is again one more piece of evidence that corroborates the eye witness's narrative. This report is Ex.PW10/A. According to this report, there were five external injuries in the form of abrasions on arms, elbow etc. The cause of death was opined as asphyxia subsequent to throttling and the manner of death homicide. Throttling was sufficient to cause death in the ordinary course of nature. All injures were anti-mortem and were possible in a fight. Satish Malik has stated in his evidence that the accused Mulkh Raj pressed the neck of Mr. Suri with both his hands and shook him. Anita Malik deposed that she saw Mulkh Raj pressing the neck of his father. All other eye witnesses have said about the iniquitous one- sided fists and kicks fight of the accused with Mr. Suri. Bobby clutched the neck of Mr. Suri by his hand according to the evidence of Satish and Komal.
59. Coming now to the defences raised by the accused.
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60. The first is that there is delay in the reporting of the case and the registration of the FIR. The incident was of around 1.30 PM in the noon whereas the complaint (ruqa) was sent for registration of FIR at 10:45 PM in the night. It has been argued that the delay is deliberate because it has come in the evidence that the police station was very near, almost in front of the shop, where the alleged murder took place and two sons of the deceased were very much in the police station when the news of this incident reached Sanjay. Despite that neither the matter reported to the police nor any call was made to the police from the shop. It is argued that when there was a simple quarrel, two PCR calls were made but when such a horrendous incident took place, nobody bothered to inform the police more so when the two brothers were sitting in the police station itself and Sanjay got the information there. It means that the incident which the prosecution alleges to happen had not happened or these relatives who claimed themselves to eye witnesses were not present there otherwise there was nothing to stop them for calling the police that too when the police station was at the stone's throw from there. It is argued that after the first call, the police took everyone to the police station including Mr. Suri from where he was sent home. Mr. Suri died at home, may be due to cardiac arrest and then this entire conspiracy was hatched to implicate the accused. Since it took time for the complainant's side to invent a tale of murder which can endure the throes of the trial, that is why there FIR No. 831/2007 Police Station : Tilak Nagar Page No. 51/83 was no information to the police at the time of incident or soon after that, resulting in the delayed complaint in the night.
61. Here I am incomplete agreement of this argument that there was delay in registering FIR because the fact that police station was so near, there was no excuse to delay. The complaint Ex.PW1/A is not a very long/detailed complaint and could have been easily given to the police at an earlier point of time. But this delay is just one facet of the entire story. And that is why the cases are decided on broad spectrum of entire facts and not on some lacunas which are natural and bound to be there in almost all cases. To err is human and this in relation to the conduct of an average human vis-à-vis crime is no exception. The facts of a criminal cases are not meticulously scripted crime fictions, written and proof read for faults and then came out with perfect and precise versions. Definitely a normal person will call the police. But then it has to be kept in mind that the first priority for the family of the deceased at that time was to get medical attention as Mr. Suri was an old man after all. May be, they did not understand the gravity of the assault. So, Sanjay and Satish Malik took Mr. Suri to hospital as first priority. And from there a police call was made albeit by the doctor but then at least the police were informed if not the complaint given. Not every time human behavior is governed by logic, be it of accused or victim. No doubt this point is not so negligible to shrug it off, but there is no hard and fast rule in this regard.
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62. Hon'ble Supreme Court of India in the case of Madhya Pradesh vs Rattan Singh (2020) 12 SCC 6 has held that the courts generally will not disbelieve the version of the eye witnesses even if there is some delay in lodging the FIR, if the versions of the eye witnesses are reliable and trustworthy. However, the delay needs to be explained. The Hon'ble court, in Apren Joseph v. State of Kerala, (1973) 3 SCC 114, emphasised that since a promptly filed FIR reflects reduced chances of embellishment, fabrication or distortion in memory, in cases of delay in filing the FIR, it is important to assess the explanation therefore, to look for possible ulterior motives, and to assess its effect on the credibility of the prosecution version. There is no hard-and-fast rule which can be applied to determine the effect of delay in filing the FIR, and the court is duty-bound to determine whether the explanation afforded is plausible enough based on the given facts and circumstances of each case.
63. In Ram Jag v. State of U.P., (1974) 4 SCC 201, it was observed that witnesses cannot be called upon to explain every hour's delay and a common-sense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be FIR No. 831/2007 Police Station : Tilak Nagar Page No. 53/83 condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.
64. On the issue of delay, the Hon'ble Supreme Court of India in the case of State of Punjab vs Jagir Singh 1973 AIR 2407, has allowed the delay of four hours in the registration of FIR where the incident was of 7:15 PM and the FIR was registered at 11:15 PM, by observing that it is plain that the prosecution witness must have got stunned because of the sudden occurrence in the course of which three of their close relatives received injuries which ultimately proved fatal. Attempt was made to pour water in the mouth of the deceased who died soon thereafter. It must have taken some time for the witnesses and others to get out of the state of shock and regain their composure.
65. No doubt Jagir Singh's case was of 1973, when the means of communication were not as swift, like they are now but still some benefit is to be given to the prosecution and the complainant in the facts of the case. Even if the complaint was sent at 10:45 PM, it is clear that the police was informed from Khanna Nursing Home at around 2:30 PM.
66. Similarly in the case Silak Ram and another vs State of Haryana (2007)10 SCC464, in a case before Supreme Court of India, the incident happened in the midnight, the statement was recorded by FIR No. 831/2007 Police Station : Tilak Nagar Page No. 54/83 the police at 9:40 AM on the next day and the FIR was recorded at 11:00 AM that was after around 8-9 hours of the incident, it was held that delay in lodging FIR by itself would not sufficient to discard the prosecution version unless it is unexplained and such delay coupled with the likelihood of concoction of the evidence. There is no hard and fast rule that delay in filing FIR in each and every case is fatal and on account of such delay the prosecution version should be discarded. The factum of delay requires the court to scrutinse the evidence adduced with greater degree of care and caution.
67. Therefore, the precedents in criminal cases show that there have been cases where days delay have been explained and cases where few hours delay found fatal. It all depends on the case itself. And the cases in which eyewitness are found reliable to believe, there delay takes the backseat and therefore can be ignored in appropriate cases like the present one.
68. The next argument is related to the improvements and the contradictions in the testimony of the witnesses. It has been argued that PW-1 Satish Malik improved upon his testimony a lot from his complaint Ex.PW1/A. In his complaint he has merely said about the assault on Mr. Suri with kicks and fists whereas in his evidence in the court, he said that the accused Mulkh Raj pressed the neck of Madan Lal Suri with both his hands and said "aaj tera kaam tamam kar denge". This was nowhere in the complaint Ex.PW1/A. It is also not FIR No. 831/2007 Police Station : Tilak Nagar Page No. 55/83 there in the complaint that the accused Vikas after jumping on the chest of Madan Lal Suri, hit Mr. Suri's with his right knee or that after placing his one knee on the chest and other on the neck of Mr. Suri, Vikas hit the face of Mr. Suri with his hands. With some similar differences in the testimony, the defence has confronted this witness which is the part of the evidence. Then, it has been argued that the witness PW-11 and PW-12 Annu and Komal did not say that the accused Mulkh Raj pressed the neck of Mr. Suri nor anything has been said about it by Vikram Gupta. It has been argued that all the witnesses have described the assault in different manner causing a confused impression that how the assault, if any, actually took place.
69. This may be true to some extent that every witness has described the incident in their own way but that is not unnatural. Only the witnesses who depose by rote can give the same testimony otherwise, there are bound to be differences. These differences no doubt is there in this case also but can be ignored if considered on the anvil of the settled law in this regard discussed above.
70. The third argument of the defence is that the postmortem report is not in conformity with the statements of eye witnesses or with the MLC prepared by Dr. Khanna to whom Mr. Suri was taken first. Dr. Khanna's MLC mentioned that there were no external injuries. He was the first doctor to examine Mr. Suri and therefore his evidence is of vital importance to conclude that Mr. Suri was not beaten as alleged.
FIR No. 831/2007Police Station : Tilak Nagar Page No. 56/83 The defence then took refuge in the cross examination of PW-10 Dr. Komal Singh, who conducted autopsy. In the cross examination, she has admitted that the injuries at the neck which is the cause of the death cannot be inflicted by fists and kicks blows and if one hold around the neck of a person in standing position, injury of this kind or throttling cannot be caused. She further stated that by putting arm around the neck and shaking it vigorously, throttling is not possible. She further admitted that if a person sits on the chest of another who is fallen on the ground, the first one cannot stretch his knee up to the neck of the person laid on the ground floor. She answered that if one holds a neck of a person with both hands in a standing position throttling is possible if severe pressure is applied on the neck. She also admitted if a person falls over the protruded blade of the stairs it may lead to such type of injury. She denied that the injuries in column three of the report could be caused by the transportation of the corpse. Though, she admitted that the abrasion on the hand could be possible in transportation or due to fall on the hard surface. She denied the suggestion that the story of throttling was concocted and the report was deliberately delayed by her and that it was anti-dated.
71. Throttling has been assigned the cause of death in this case. Two witnesses have said that they saw Mulkh Raj pressing the neck of the deceased though other eye-witness does not say about it. With rest of the manner of the assault, it appears that the situation is clear that FIR No. 831/2007 Police Station : Tilak Nagar Page No. 57/83 the death by asphyxia due to throttling cannot be caused in a fist / kick fight or somebody sitting on the chest of another etc.
72. In Rakesh & Anr. vs State of Madhya Pradesh (2011) 9 SSC 698, it was held by Hon'ble Supreme Court that it is settled legal proposition that the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. More so, the ocular testimony of a witness has a greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence if proved, the ocular evidence may be disbelieved.
73. In State of Haryana v. Bhagirath & Ors., (1999) 5 SCC 96, it was held by Hon'ble Supreme Court that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent with probability, the court has no FIR No. 831/2007 Police Station : Tilak Nagar Page No. 58/83 liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject. Where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
74. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, Hon'ble Supreme Court observed that ordinarily, the value of medical evidence is only corroborative. It proves that the injuries FIR No. 831/2007 Police Station : Tilak Nagar Page No. 59/83 could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
75. In Abdul Syeed vs State of Madhya Pradesh (2010) 10 SCC 259, Hon'ble Supreme Court held that the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. With respect to that case, it was observed by Hon'ble Court that in the instant case as referred to hereinabove, a very large number of assailants attacked one person, thus the witnesses cannot be able to state as how many injuries and in what manner the same had been caused by the accused. In such FIR No. 831/2007 Police Station : Tilak Nagar Page No. 60/83 a fact-situation, discrepancy in medical evidence and ocular evidence is bound to occur. However, it cannot tilt the balance in favour of the appellants.
76. In the present case there is no contradiction between the ocular and medical evidence. Though the assault appears to have been exaggerated by complainant but it stands proved that the deceased was assaulted by all these accused. May be what all said by the complainant is dramatized but then his description is not entirely untrue. Two witnesses said about pressing of the neck of Mr. Suri whereas complainant and his wife has said that Kamal put his arm around the neck of Mr. Suri and shook his neck. So, there have been evidence of neck-pressing and choke-holding which matches with medical evidence. Not only this Mr. Suri was knocked down on the ground in the assault by the accused. It has also been an argument of the defence that when Dr. Khanna examined Mr. Suri and prepared the MLC, he stated that there were no external injuries on Mr. Suri. Therefore, the external injuries written in post mortem report are all cooked up to make a strong case. Ld. Public Prosecutor has replied that Dr. Khanna was not the post mortem doctor. Deceased was taken to him for initial medical attention but he could not reach there alive. So, when, Mr. Suri reached Khanna hospital, he was already dead and therefore there was no occasion for Dr. Khanna to evaluate the entire body. Moreover, it was December and the deceased must be clothed FIR No. 831/2007 Police Station : Tilak Nagar Page No. 61/83 properly so it was not possible nor required of him to take off the clothes and note the injuries. It was for the post mortem doctor who has to evaluate the external or internal injuries and find the probable cause of death.
77. Next argument is that the complainant is a chance witness. He was not present in the shop and was later on managed to be the informant of this case. That is why it took almost 7-8 hours to make a planning that how to create the story of murder in this case. The complainant in the cross examination was given a suggestion that he was working as a clerk in Patiala House Court with some advocates and that is why he was chosen as a fit person to initiate the proceedings. Though, no other evidence has been given by the defence about this fact but defence has asked certain question about the profession of the complainant. The complainant has stated in his cross examination that he was a jeweller by profession. At one point he stated he hold a valid licence to be a jeweller but then at next stage he stated he has no such licence. The complainant could not show any document of his being engaged in that profession. Be that as it may, the profession of the complainant is not of much relevance here. What is important is that there is nothing on record to show that his presence at the spot was not at all possible. He is the son-in-law of the deceased. He was present at the house of the deceased which was near the shop. He came at the shop when Simmi and her family had FIR No. 831/2007 Police Station : Tilak Nagar Page No. 62/83 altercation before the incident. He and other witnesses proved this fact. Defence has not shown anything contrary to it and has not given any evidence to show that he is a chance witness. Therefore, in the absence of any material to falsify his presence at the spot and the positive evidence of prosecution in this regard, complainant cannot be termed as a chance witness.
78. It was then argued that all the witnesses were related to the deceased and have good reasons to implicate the accused falsely in the present case. No doubt that all the four eye witnesses are the relatives of the deceased and the fifth witness Vikram Gupta is also connected to the family of the deceased in some manner. But the answer to this argument lies in the following observation of the Hon'ble Supreme Court of India in S. Sudershan Reddy &Ors vs The State of Andhra Pradesh (2006) 10 SCC 163 wherein it was held that relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has a FIR No. 831/2007 Police Station : Tilak Nagar Page No. 63/83 cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, then there is a tendency to drag an innocent person against whom a witness has a grudge, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. In Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was relied upon, it was observed that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance.
79. In Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) Hon'ble Supreme Court observed that it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
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80. The difference between a related witness and an interested witness has been brought out by Hon'ble Supreme Court in State of Rajasthan v. Kalki, (1981) 2 SCC 752. With respect to wife being the witness in that case, it was observed that true, it is, she is the wife of the deceased; but she cannot be called an interested witness. She is related to the deceased. Related is not equivalent to interested. A witness may be called interested only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be interested.
81. In Darya Singh and others vs State of Punjab, 1965 AIR 328, Hon'ble Supreme Court observed that the rule of caution which requires corroboration to evidence of interested witnesses cannot be treated as an inflexible principle which can be mechanically applied to all cases, because in that event if a murder is committed in the house of the victim, it would be difficult to convict the assailant, for in such a case all the witnesses would be relatives of the victim. The evidence of an eye witness who is a near relative of the victim, should be closely scrutinized but no corroboration is necessary for acceptance of his evidence. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal FIR No. 831/2007 Police Station : Tilak Nagar Page No. 65/83 courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. If the offence has taken place as in the present case, in front of the house of the victim, the fact that on hearing his shouts, his relations rushed out of the house cannot be ruled out as being improbable, and so, the presence of the three eye-witnesses cannot be properly characterised as unlikely. If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.
82. Therefore, it is a settled law that a close relative cannot be characterised as an interested witness. He is a natural witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable FIR No. 831/2007 Police Station : Tilak Nagar Page No. 66/83 and wholly trustworthy, conviction can be based on the sole testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.
83. The eyewitnesses in the present case have been found to be reliable witness. Their presence at the spot was natural as they were the near relatives who reached the spot, on information of quarrel. The defence is unable to show any serious animosity of these witnesses with the accused in order to discard their testimony. Matrimonial discords for showing enmity to such an extent are not sustainable. Though matrimonial discords are on the rise in the society but such incidents are exceptions even today.
84. It has been further argued that despite the availability of large number of independent witnesses including the employees of the shop and the onlookers gathered outside during the incident, none of them was made a witness in this case. It is further argued that there must have been CCTV cameras in the shop which were not seized. It has been argued that the investigation of the case is faulty. The investigating officer has not seized any damaged article nor had he mentioned about the position of the accused or the witnesses in the site plan. Lastly, it was argued by the defence that the incident did not happen in the manner in which it was portrayed by the prosecution.
FIR No. 831/2007Police Station : Tilak Nagar Page No. 67/83 After the initial calls made to the police, all including Mr. Suri went to the police station from where he went to his home when no settlement reached between the parties. Out of stress, he suffered a heart attack probably due to which he died. His family took an opportunity in his death to make this false case and framed the accused due to the matrimonial enmity between them.
85. As far as the issue of independent witnesses is concerned, no doubt that it appears that there were some persons available. Like PW2 Anita Malik in cross examination said that generally there were two to three helpers in the shop. The helpers were asked to move outside the shop. Otherwise, also it is almost not possible to run a traditional cloth shop without servants. She also admitted that due to the fight there was a traffic jam outside the shop. The fight took place for 15 to 20 minutes. It has also come in evidence that there were onlookers who can be made witnesses. This means that apart from the eye witnesses who are cited, there were others not related to the deceased. But it cannot be lost sight of the fact that in world we live today hardly anyone can be found, who would like to spare time for others, particularly to depose in a criminal case. People are afraid of many things, most common among them is the apprehension of their own harm. Making somebody a witness in murder case is not that easy and then there are always apprehensions that he may be won over destroying the case of prosecution that is why police may at times FIR No. 831/2007 Police Station : Tilak Nagar Page No. 68/83 avoid basing their case on such witnesses. Further, there is no rule of law that the case cannot be decided or truth cannot be discovered without independent or unrelated witnesses. The quest is to find the truth and there is no particular path to it. Though it is a very convenient argument for defence that the independent witnesses not examined but is not very convincing. The persons gathered outside the shop at the time of incident were mere onlookers. They may not be aware of the facts and witnesses who were acquainted with the facts are nevertheless made witnesses in this case. I only need to reproduce the observations of Hon'ble Supreme Court in case titled as Appabhai vs. State of Gujarat, AIR 1988 SC 696 to repel this argument which are that it is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation FIR No. 831/2007 Police Station : Tilak Nagar Page No. 69/83 agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused.
86. Further in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. (2001) 6 SCC 145, Hon'ble Supreme Court held that it is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself- whether in the facts and circumstances of the case, it was necessary to examine such FIR No. 831/2007 Police Station : Tilak Nagar Page No. 70/83 other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.
87. As far as CCTV footages are concerned , PW13 Sanjay Suri, in his cross examination has said there were no CCTV cameras at that time in the shop. The cameras were installed in the year 2013. To contradict this, the defence has no evidence. Therefore, there is nothing to infer that the shop had CCTV cameras and that the incident was captured by these cameras and that these footages were deliberately withheld.
88. About the argument that investigation officer did not seize the damaged articles or had not done proper and prompt investigation, admittedly, these are lapses but what is to be seen is that even without these evidences, whether the prosecution case is proved or not. If the case is proved beyond reasonable doubt with the evidences led, the absence of the other evidences which were available but not filed, will hardly make a difference. The case is to be considered by the positive evidences led and should not be handicapped by what has been omitted unless it causes prejudice to the accused and questions fair FIR No. 831/2007 Police Station : Tilak Nagar Page No. 71/83 investigation. A lot could have been done by the investigating officer, but that would have made the case of prosecution stronger and not weak. In Dayal Singh & others vs State of Uttranchal 2012 (8) SCC, it was observed by the Hon'ble Supreme Court that merely because there has been some defect in the investigation, it would not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. In the case of Suresh Chand Jana vs State of West Bengal (2017) 16 SCC 466, it was observed by Hon'ble Supreme Court regarding defective investigation and prosecution that the function of a criminal court is to find out the truth. The whole purpose of the trial is to convict the guilty and at the same time to protect the innocent. In this process, court should always be in search of the truth and should come to the conclusion, based on the facts and circumstances of each case, without defeating the very purpose of justice. It is impossible to come across a single case where the investigation was completely flawless or absolutely fool proof. The function of the criminal court is to find out the truth and it is not the correct approach to simply pick up the minor lapses of the investigation and acquit the accused, particularly when the ring of truth is undisturbed. It may be mentioned that it is not every doubt but only a reasonable doubt of which benefit can be given to the accused. A doubt of a timid mind which is afraid of logical consequences, cannot be said to be reasonable doubt. The experienced, able and FIR No. 831/2007 Police Station : Tilak Nagar Page No. 72/83 astute defence lawyers do raise doubts and uncertainties in respect of evidence adduced against the accused by marshalling the evidence, but what is to be borne in mind is - whether testimony of the witnesses before the court is natural, truthful in substance or not. The accused is entitled to get benefit of only reasonable doubt, i.e., the doubt which rational thinking man would reasonably, honestly and conscientiously entertain and not the doubt of a vacillating mind that has no moral courage and prefers to take shelter itself in a vain and idle scepticism. The administration of justice has to protect the society and it cannot ignore the victim altogether who has died and cannot cry before it. If the benefits of all kinds of doubts raised on behalf of the accused are accepted, it will result in deflecting the course of justice. The cherished principles of golden thread of proof of reasonable doubt which runs through web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
89. The alleged lapses in investigations are not so overwhelming that the accused can take any advantage of it in this case.
90. Therefore, the above discussion shows that all the facts/circumstances and the evidence led to prove the same indicates towards only one conclusion and that is the guilt of the accused. To finally conclude, there is no doubt that on 31.12.2007 at around 1.30 PM in the noon, all the five accused in furtherance of their common intention assaulted Mr. Madan Lal Suri, who died in consequences of FIR No. 831/2007 Police Station : Tilak Nagar Page No. 73/83 that assault. The accused are charged under section 302 of the Indian Penal Code read with section 34 IPC for causing the death of Madan Lal Suri.
91. Section 302 IPC punishes the offence of murder. Murder is defined under section 300 of IPC in the following words :-
Section 300 in The Indian Penal Code
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 offender knows to be likely to cause the death of the person to whom the harm is caused, or (Thirdly)--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or (Fourthly)--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
92. It has been argued on behalf of the prosecution that this case will fall under clause (1) and (3) of section 300 meaning thereby the FIR No. 831/2007 Police Station : Tilak Nagar Page No. 74/83 death of Mr. Madan Lal Suri amounts to murder because the act by which the death was caused, was done with the intention causing death and also with the intention of causing bodily injury, which is sufficient in the ordinary course of nature to cause death. On the contrary, it has been argued on behalf of defence that even if the prosecution case is accepted, an offence of murder is not made out as the accused had no intention to cause the death and it was just a case of scuffle.
93. In view of the allegations of the prosecution as well as the evidence, it is clear that this case will not fall in first clause of Section 300 IPC meaning thereby it cannot be said that the assault was done with the intention of causing the death of the deceased Mr. Suri. Whether the death was actuated by the intention to cause death is a subjective element and has to be deduced from the objective facts, circumstances and behaviour of the accused. In this clause, all those cases will be covered where the direct intention of the accused is to cause the death of a person. Inference of such intention can be drawn from the manner in which the death is caused, the weapon used, the nature of injury given, the seat of injury on the human body, the motive and any other relevant circumstance connected with the death of a person. In the present case, it is clear that the intention of the accused was not to cause the death of the deceased, which is clear from the fact that the accused were not conspicuously armed with any FIR No. 831/2007 Police Station : Tilak Nagar Page No. 75/83 dangerous or lethal weapon, had grudge of minor nature with respect to marriage and therefore it would need a very strong evidence of a definite, explicit, unambiguous and precise intention to kill, which is not reflected in the facts of this case.
94. The third clause of section 300 IPC states that every culpable homicide is murder, 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.
95. To see whether the case of these accused will fall under section 302 clause three or not, I am relying upon the judgment of Hon'ble Supreme Court of India in Virsa Singh vs State 1958 AIR 465. In this case, Hon'ble Supreme Court has set out the four elements test, which the prosecution must prove to bring its case under this section. The following passage in the judgment which has become locus classicus on this issue which is -: "To put it shortly, 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. thirdly, it must be proved that there was an intention to inflict that particular bodily 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 FIR No. 831/2007 Police Station : Tilak Nagar Page No. 76/83 injury of the type just described made up of the three elements set out above is 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. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under section 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a license to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
96. Now in the present case, it is clear that the bodily injuries were present on deceased Mr. Suri. The nature of external injuries were FIR No. 831/2007 Police Station : Tilak Nagar Page No. 77/83 primarily abrasions and the cause of death was asphyxia due to throttling as described in the post-mortem report. The evidence and the circumstances do not suggest that the accused intended to cause the death by directly inflicting the death blow assault on the deceased Madan Lal Suri particularly which caused asphyxia. Though there is evidence of neck pressing and choke holding Mr. Suri but it appears that the intention was not to cause that injury which according to the post-mortem report was the cause of death and sufficient to cause death in the ordinary course of nature. Although the defence has not come clearly that it was accidental or unintentional, or that some other kind of injury was intended. Therefore, first three requirement according to this judgement are not fulfilled. However, it has been proved by the prosecution that the injury was sufficient to cause the death in the ordinary course of nature but the broad probabilities of the case have not proved the initial requirements of the section.
97. This brings to an important issue that if not the offence of murder for which the accused are charged, what offence is committed by them. This is a case of causing death in kick and fist fight. In such cases, the question as to whether the offence comes under section 302 or section 304 admits of no straight answer. Shortly stated if the facts proved by the prosecution brings the case within the ambit of any of the four clauses of the definition of murder contained in section 300 IPC, the offence would be murder. If the case cannot be FIR No. 831/2007 Police Station : Tilak Nagar Page No. 78/83 encompassed by any of the aforesaid four clauses, the offence would be culpable homicide not amounting to murder. The whole thing depends upon the intention to cause death, and the case may be covered by either clause firstly or clause thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.
98. Culpable homicide is defined under section 299 IPC. It states that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
99. In the case of State of HP vs Tejinder Singh 2014 SCC OnLine HP 4429, the case where the deceased was beaten with kicks and fists blows, the Hon'ble Supreme Court reversed the acquittal in an appeal by State and convicted the accused under section 304-part II IPC. In Nandakumar vs State of Maharashtra 2022 SCC Online Bom 204, Hon'ble Bombay High Court in a case where the accused husband beaten his wife with kicks and fists blows, convicted the accused under section 304 Part II IPC. In Raman vs State of Kerela 2015 Cr.LJ 2989 (Ker) DB, the accused had suspicion about the chastity of his wife, inflicted injuries by sticks causing her death. It was not discernible that the injuries were inflicted with an intention to cause FIR No. 831/2007 Police Station : Tilak Nagar Page No. 79/83 death of the victim or to cause such bodily in injury that it was likely to cause the death of the victim. However, it was clear that the acts done by the accused with the knowledge that it was likely to cause to cause death. The conviction of the accused under section 302 IPC was altered to one under section 304 Part II IPC.
100. In the present case, as discussed above, the prosecution is not able to prove that the injury suffered by the deceased was intended by the accused. Therefore, the accused cannot be convicted under section 302 IPC but overall facts and circumstances of the case, clearly brings it within the preview of section 304 Part-II of the IPC, which punishes culpable homicide not amounting to murder. The present case will fall under section 299 IPC as it is proved that the death of Mr. Suri was caused by the accused with the knowledge that they were likely to cause the death by that assault. The deceased Mr. Suri was in the evening of his life. The accused must be presumed to know that the assault of the kind alleged in the evidence of prosecution witnesses was likely to cause his death taking into account his age. Mr. Suri being a septuagenarian was no match to the strength to these five accused and could not be presumed to stand in a fight with them. The allegation of neck pressing is not a very strong one as it was missing in the initial complaint and in the testimony of PW11 and PW12. The complainant said that the accused Mulkh Raj pressed the neck of Madan Lal Suri with both his hands and while shaking him said that FIR No. 831/2007 Police Station : Tilak Nagar Page No. 80/83 "aaj tera humen kaam tamam karna hai". It is more a gesture giving a semblance of strangulation rather than actual strangulation. A simulacrum of throttling or a gesture of intimidation where one grasp the collar or neck of other and shake him. It appears more a part of fight rather than act of killing. The second is Bobby's putting his hand around the neck of Mr. Suri. It is possible that these acts have caused asphyxia to the deceased. However, none of these acts in the overall facts of a case could be presumed to have sufficient gravity to cover within requisite intention. But as said above, the knowledge of the accused that they were likely to cause death can be gathered from the circumstances. So, if two views are appearing from the evidence, the one which favours the accused needs to be adopted in criminal law. To me the view that these accused have committed the offence of culpable homicide not amounting to murder appears more probable in the facts of the case and therefore I have no hesitation in coming to the conclusion that instead of murder, the accused have committed the offence of culpable homicide not amounting to murder.
101. Therefore, on the basis of aforesaid discussion it is clear that all the accused can be safely convicted under section 304 Part-II IPC.
102. All the accused are also charged with section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the common FIR No. 831/2007 Police Station : Tilak Nagar Page No. 81/83 intention to commit the offence. The phrase common intention implies a pre-arranged plan and acting in concert pursuant to the plan. The common intention must be there prior to the commission of the offence in point of time and it can also develop at the spot.
103. In Girija Shankar v. State of U.P, (2004) 3 SCC 793, it is observed that section 34 has been enacted to elucidate the principle of joint liability of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.
104. In the present case it has been proved that that all the five accused shared common intention as required under section 34 of the IPC and were confederates of each other in the commission of this crime. Therefore, each one is liable not only for his own act but for the acts of others also and can be convicted with the aid of this section.
105. Regarding section 427 of the IPC, the investigation officer has not seized any article that was damaged, therefore for want of FIR No. 831/2007 Police Station : Tilak Nagar Page No. 82/83 corroboratory evidence in this regard, the offence of mischief is not said to be proved in this case.
106. Therefore, in the facts and circumstances of the case, I find that the prosecution is able to prove its case beyond reasonable doubts and the accused do not have any plausible defence to justify their acts.
107. On the basis of aforesaid discussion, all the five accused Mulkh Raj, Vinay, Kamal @ Bobby, Vikas @ Bunty and Tarun @ Lucky are accordingly convicted for offence under section 304 Part-II read with section 34 of the Indian Penal Code.
108. List the matter for arguments on sentence.
Digitally signed by SAMAR SAMAR VISHAL
Pronounced in the open VISHAL Date:
2022.04.25
13:49:49 -0400
Court on 25.04.2022 (Samar Vishal)
Additional Sessions Judge -08
(West) Tis Hazari Courts Delhi
FIR No. 831/2007
Police Station : Tilak Nagar
Page No. 83/83