Delhi District Court
State vs . on 3 May, 2014
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE -02, NORTH DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 20/10
FIR No. : 381/09
P.S. : Narela
U/s : 452/304/34 IPC
Date of registration : 18-03-2010
Reserved for Judgment on: 25-04-2014
Judgment Announced on : 03-05-2014
State
Vs.
1. Naresh Kumar S/o Sh. Devi Singh
R/o H. No. 866, Village Bakner,
Narela, Delhi.
2. Satish @ Mangal S/o Sh. Devi Singh
R/o H. No. 866, Village Bakner,
Narela, Delhi.
3. Poonam W/o Sh. Naresh Kumar
R/o H. No. 866, Village Bakner,
Narela, Delhi.
JUDGMENT
1. As per the case of the prosecution, Sheela who is the complainant made her statement contending therein that on 27-11- 2009 at about 1:00 p.m., she had gone to the market alongwith wife of deceased Pradeep. When she was returning home she was informed that accused persons had entered in her house and they were giving beatings to her son Praveen with danda, leg blows and fist blows. On hearing this, she ran towards her house and there she saw that accused Naresh had caught hold of her son from behind and accused Satish and accused Poonam were giving dandas blows to Sessions Case No: 20/10 Page 1 of 32 2 her son. When she tried to save her son, accused Satish gave danda blow on her left hand. She removed her son to the hospital and after medical check up they both were discharged at about 12 midnight. On 28-11-2009, Pradeep (deceased) complained of pain and started vomiting. She alongwith her husband took Pradeep to S.R.H.C. Hospital where her son was declared brought dead.
2. On the basis of the said statement of complainant Sheela the present F.I.R. bearing No. 381/09, was registered at P.S. Narela and investigation went underway. During the course of investigation accused persons were arrested. After completion of investigation final report u/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
3. On 27-04-2011, a charge U/s 304/452/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
4. In order to prove the guilt of the accused persons, the prosecution examined as many as 17 witnesses.
5. PW 1 Sheela (complainant) and PW 11 Mrs. Parveen are the most material witnesses of the case and I will discuss their testimonies in the later part of the judgment.
6. PW 2 Kishan is the father of deceased Pradeep. He is the witness to the identification of the dead body. He proved on record his statement regarding identification of the dead body as Ex. PW 2/A. After the postmortem he took the body of his son vide receipt Ex. PW 2/B. PW 2 also deposed that on 27-11-2009 when he came back home after his office his wife told him about the incident that the accused persons gave beatings to his son Sessions Case No: 20/10 Page 2 of 32 3 Pradeep. He also deposed that during that time his son was complained of pain so he alongwith his wife took his son to SRHC Hospital where he was declared brought dead.
7. PW 3 H.C. Ramesh Kumar is the duty officer. He proved on record the copy of the FIR as Ex. PW 3/A; his endorsement on the rukka as Ex. PW 3/B and DD No. 3 as Ex. PW 3/C.
8. PW 4 Tare deposed that deceased Pradeep Kumar was his nephew. He is also a witness to the identification of the dead body. He proved on record his statement with regard to the identification of the dead body as Ex. PW 4/A.
9. PW 5 H.C. Chand Singh is the first IO of the case and he also remained associated with Inspector Narender (second IO) of the case during the investigation. PW 5 deposed about the sequence of investigation done by him and he also narrated the sequence of investigation done by the second IO in his presence. PW 5 proved on record DD No. 15-A as Ex. PW 5/A. He also proved on record his endorsement made by him on the statement of mother of the deceased Pradeep Kumar as Ex. PW 5/A. He further proved on record site plan as Ex. PW 5/B; arrest memos of the accused persons as Ex. PW 5/C-1 to Ex. PW 5/C- 3; personal search memos of accused Naresh Kumar and Satish @ Mangal as Ex. PW 5/C-4 to Ex. PW 5/C-5; personal search of accused Poonam as Ex. PW 5/C-6; disclosure statement of accused Poonam and Satish as Ex. PW 5/D-1 to Ex. PW 5/D-2; and seizure memos of wooden stick (danda) recovered at the instance of accused Poonam and Satish as Ex. PW 5/E-1 and Ex. PW 5/E-2.
10. PW 6 Dr. Rajender Kumar is the Assistant Director, Biology, FSL Rohini, Delhi. He proved on record his detailed Sessions Case No: 20/10 Page 3 of 32 4 report as Ex. PW 6/A and the serology report as Ex. PW 6/B.
11. PW 7 Amit Rawat is the Sr. Scientific Officer, Chemistry FSL Rohini, Delhi. He also proved on record his report as Ex. PW 7/A.
12. PW 8 H.C. Chaman Prakash is the duty officer. He deposed that on 27-11-2009 at about 2:15 p.m he received a call from wireless operator about a quarrel at Gali No. 3 H.No. 8865 Bakner. He further deposed that the said information was reduced into writing vide DD No. 15-A and the said information was given to H.C Chand Singh . He proved on record DD No. 15-A as Ex. PW 8/A.
13. PW 9 H.C. Suresh Kumar is the MHC(M). He proved on record the relevant entries made by him in register No. 19. He proved on record entry at serial No. 351 in register No. 19 as Ex. PW 9/A. He also proved on record copy of RC No. 22/21 as Ex. PW 9/B and acknowledgment of deposition of the viscera of deceased at FSL Rohini vide said RC as Ex. PW 9/C. He also proved on record copy of RC No. 23/21 as Ex. PW 9/D and the receipt of deposition of one sealed bottle containing heart piece of deceased at Sanjay Gandhi Hospital vide said RC as Ex. PW 9/E.
14. PW 10 Dr. Rajesh Kumar deposed that on 27-11-2009, he was on duty in SRHC Hospital and on that day he attended injured Pradeep and Sheela vide MLC No. 2319 and 2320 . He proved the same as Ex. PW 10/A and Ex. PW 10/B. He deposed that during treatment injured Pradeep absconded at about 4:10 p.m without completion of X-ray while patient Sheela was referred to Ortho SR.
15. He further deposed that on 28-11-2009, at about 12:30 Sessions Case No: 20/10 Page 4 of 32 5 a.m injured Pradeep again brought to his hospital by his father Ram Kishan alongwith H.C Jai Bhagwan in the said hospital and Pradeep was attended by him vide MLC No. 3188. He proved the same as Ex. PW 10/C. He further deposed that when the patient was brought in the hospital on 28-11-2009 he was brought to hospital with alleged history of seizure (convulsion/fits) at home, but when injured was attended by me he was found brought dead at casualty. The body of the injured Pradeep was handed over to IO for postmortem.
16. PW 12 Ct. Gopi Chand deposed that on 3-2-2010, he was posted in PS Narela and on the instruction of the IO he obtained the exhibits of this case from MHC(M). On that day he deposited one exhibit in SGM Hospital vide RC No. 23/21/10 and the other exhibit he deposited with FSL Rohini vide RC No. 22/21/10.
17. PW 13 W/Ct. Rajbala joined the investigation of this case alongwith H.C. Chand and IO Inspector Narender on 28- 11-2009. She is the witness to the arrest of the accused persons. In her presence the accused persons were arrested vide arrest memos Ex. PW 5/C-1 to Ex. PW 5/C-3; their personal search were carried out and she took the personal search of accused Poonam vide memo Ex. PW 5/C-6. Disclosure statements Ex. PW 5/D-1 and Ex. PW 5/D-2 of accused Satish and Poonam were also recorded in the presence of PW 13. She further deposed that accused Satish and Poonam got recovered two dandas from their houses. IO converted both the dandas into pullandas and sealed with the seal of NS and seized vide memo Ex. PW 5/E-1 and Ex. PW 5/E-2. She further deposed that the length of both the dandas were found to be 2.5 and 2.7 ft.
Sessions Case No: 20/10 Page 5 of 32 6respectively. She identified the dandas as Ex. P-1 and Ex. P-2.
18. PW 14 Dr. K. Goyel conducted the postmortem on the body of deceased Pradeep Kumar. He proved on record his postmortem report as Ex. PW 14/A. He further deposed that on 21-2-2011, on the request of IO dated 1-2-11, after going through the MLC, PM report, FSL report Ex. PW 7/A and histopathological report Ex. PW 14/A 1, he observed and gave the subsequent opinion that in view of the 'PM' findings and above mentioned chemical analysis report and histopathological report, cause of death is cardiac failure as a result of coronary insufficiency and cardiac myopathy which is precipitated by beatings, stress, tension and duress. He proved on record his subsequent opinion as Ex. PW 14/B.
19. PW 15 is constable Ramesh who on the intervening night of 27/28-11-2009, was posted at PS Narela and on that he joined the investigation with H.C. Chand Singh who is the first IO of the case. In the presence of PW 15 statement of complainant Sheela (PW 1) was recorded by H.C. Chand Singh who also prepared the rukka on the statement of PW 1 and handed over the same to PW 15 for getting the case registered. PW 15 took the rukka to the police station and got the present case registered.
20. PW 15 further deposed that further investigation was handed over to Inspector Narender Kumar Beniwal and he handed over the copy of FIR and original endorsement to him. PW 15 also deposed that the dead body was shifted to BJRM Hospital Mortuary and was subjected to postmortem and the concerned doctor after postmortem examination handed over to him the exhibits alongwith sample seal which he handed over Sessions Case No: 20/10 Page 6 of 32 7 to the IO which had been taken into possession vide seizure memo Ex. PW 15/A which bears his signature at point A.
21. PW 16 SI Suresh Chand deposed that on 23-12-2009 the investigation of the present case was assigned to him and he took the JC remand of three accused Naresh Kumar, Satish @ Mangal and Smt. Poonam on 24-12-2009. PW 16 is the third IO of the case and he further disclosed about the sequence of investigation don by him.
22. PW 17 Inspector Narender Singh is the second IO of the case. He took the investigation of this case on 28-11-2009. He also narrated the sequence of investigation done by him in this case. He proved on record the application moved by him for conducting the postmortem on the body of deceased Pradeep as Ex. PW 17/A; brief facts prepared by him as Ex. PW 17/B and inquest proceedings as Ex. PW 17/C.
23. After the closing of the prosecution evidence statement of accused persons U/s 313 Cr.P.C was recorded and all the incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been falsely implicated in this case. No evidence in defence was led by the accused persons.
24. I have heard Ld. Addl.PP for the state and counsel for the accused persons and have also gone through the records of the case.
25. It is submitted by the Ld. Addl. PP for the state that the public witnesses namely PW 1 Sheela and PW 11 Praveen have supported the case of the prosecution. It is further submitted by the Ld. Addl. PP for the state that the accused persons in furtherance of their common intention had gone inside the house Sessions Case No: 20/10 Page 7 of 32 8 of deceased Pradeep Kumar and gave beatings to him as a result of which he expired. It is further submitted by him that minor contradictions here and there does not make the case of the prosecution unreliable.
26. On the other hand, it is submitted by the counsel for accused Poonam and Naresh that no criminal act or assault has been committed by the accused persons. It is further urged that PW 11 is not a trustworthy witness. It is further urged that the presence of PW 11 is highly doubtful. It is further urged that the prosecution has not examined any independent witness and all the witnesses examined by the prosecution are interested witnesses. It is further urged by the counsel for the accused persons that the case of the deceased was "LAMA" as he left the hospital without the instructions of the doctor. It is further urged that no injury is shown to be responsible for causing the death of the deceased. It is further urged that accused Poonam and Naresh have been falsely implicated due to personal enmity with PW 11.
27. On behalf of accused Satish @ Mangal it is urged that PW 1 is not a reliable witness as she turned hostile. It is further urged that the police had never met her and police never made inquiry from her. It is further urged that both the star witness of the prosecution i.e. PW 1 and PW 11 are not trustworthy and no reliance can be placed on their testimonies.
28. EYE WITNESS ACCOUNT : PW 1 Sheela and PW 11 Mrs. Praveen are the star witnesses of this case. Let me now discuss their testimonies and see how far they are reliable and whether the conviction can be based on the basis of their testimonies.
Sessions Case No: 20/10 Page 8 of 32 929. PW 1 Sheela is the mother of the deceased. She has deposed that on 27-11-2009, at about 1:00 p.m she alongwith her daughter-in-law Praveen (PW 11) had gone to market to purchase some household articles and her son Pradeep (since deceased) was alone at home. She further deposed that when at about 2 / 2:30 p.m she alongwith her daughter-in-law was returning from the market and when they were at a little distance from their house a boy whose name she could not re- collect told her that "Anti Jaldi Ghar Jao" Healso told her that some persons were giving beatings to her son Pradeep. She further deposed that when she reached home alongwith her daughter-in-law Praveen she noticed accused Naresh had caught hold of her son from the back side and accused Satish and Poonam were giving brutal beatings to Pradeep. She further deposed that accused Satish was giving beatings to her son with danda and accused Poonam was giving beatings to her son Pradeep with brick. She further deposed that she tried to intervene but in the meanwhile accused Naresh also brought a danda and he also started beating her son Pradeep. She further deposed that she also received a danda blow on her left arm but she could not say as to who gave this injury to her because she was involved in rescuing her son. She further deposed that after giving beatings to her son Pradeep accused fled away and she took her son Pradeep Kumar to the police station and from there she was directed by the police officials to remove her son to S.R.H.C. Hospital. So she took here son to SRHC Hospital. She further deposed that at about 12 mid night her son complained of chest and stomach pain and also started vomiting. Pradeep was taken to the hospital where he was Sessions Case No: 20/10 Page 9 of 32 10 declared brought dead. In the end of her examination in chief she remembered and said accused Satish had given her a danda blow on the left hand when she tried to intervene.
30. A leading question was put to her by the Ld. Addl. PP for the state and in answer to that she admitted that police visited the spot and prepared the site plan at her instance.
31. She was cross examined by the Ld. Amicus Curiae for accused Satish and in her cross examination she stated that her statement was recorded on the day of the incident after the death of her son and it was read over to here by the police. She denied the suggestion that Ex. PW 1/A which is her statement was blank when she had signed the same. She admitted that at the time of the incident her elder daughter- in-law was present in the house and she was having a newly born child.
32. She stated in the cross examination that she had told to the police that her son Pradeep was alone in the house when she had gone to the market. She was confronted with her statement Ex. PW 1/A. She also did not remember if she had told to the police that one boy met her on the way and told her that "Anti Jaldi Ghar Jao" She was again confronted with her statement Ex. PW 1/A.
33. To my mind these confrontation as pointed out by the amicus curiae during the course of arguments are irrelevant and does not go to the root of the case. The doctors at drug de- addiction had advised her son to take regular medication and come for regular check up. Meaning thereby, the accused had the knowledge that the accused was under medication.
34. She denied the suggestion that her son Pradeep was taking liquor since morning. She also denied the suggestion Sessions Case No: 20/10 Page 10 of 32 11 that her son had a quarrel with neighbourers as he had molested a lady in the locality. He also denied that when accused Poonam intervened in the matter she was beaten up and her chunni was snatched away by Pradeep since deceased. She also denied the suggestion that accused Naresh and Satish saved her son from the persons who were beating him. She denied the suggestion that Pradeep got violent and hit Satish. She stated in her cross examination that in her statement made to the police she stated that accused Poonam was giving beatings to her son with a brick and when she tried to intervene accused Naresh also started beating her son with danda. This part was confronted with Ex. PW 1/A where it has not been recorded. No doubt this witness has made some improvements on this aspect, but when the fight of such a magnitude is going on, the person witnessing the same cannot be said to have picture perfect memory. It is also seen that the witnesses have tendency to improve the things in order to make themselves more trustworthy. So in my opinion, though the improvements are there but they are not that vital so as to make her unbelievable.
35. This examination in chief and cross examination of the witness was recorded on 20-10-11 and her further cross examination was deferred as the witness was not feeling well. She again came for cross examination on 6-1-2012. On that day she totally turned turtle and admitted in her cross examination on behalf of accused Poonam and Naresh that no quarrel had taken place between the two families. She further admitted that there was no enmity between the accused persons and the deceased. She further admitted that the alleged quarrel Sessions Case No: 20/10 Page 11 of 32 12 did not take place in her presence. She further stated that she could not tell what was written by the police in her statement and her statement was not read over to her by the police.
36. Thereafter this witness was re-examined by the Ld. Addl. PP for the state and in her re-examination she admitted that her statement was recorded in the court on 20-10-11. A court question was put to her and in reply to the court question she stated that whatever she stated on 20-10-11 was tutored to her by the IO. This witness thereafter was not cross examined by the Ld. defence counsel for accused Poonam and Naresh.
37. Another material witness which according to the prosecution is the eye witness of the case is PW 11 Mrs. Praveen who is the wife of Pradeep Kumar (since deceased). She deposed that about 3 years back she was residing at Nai Basti alongwith her husband Pradeep, her mother-in-law Sheela was also residing with them. She further deposed that about 3 years back in winter time she with her mother-in-law Sheela (PW 1) went to the market to purchase some household articles. She further deposed that when she came back to the house she noticed accused Naresh had caught hold of her husband from back side and accused Satish and Poonam were giving beatings to her husband with danda and bricks.
38. She further deposed that when they tried to save Pradeep accused also gave beatings to her mother-in-law Sheela. She further deposed that after giving beatings to her husband and mother-in-law accused went to their house. She took her husband to SRHC Hospital alongwith her mother-in-law. She further deposed that on the said night her husband Pradeep complained of pain in body and he was taken to hospital where Sessions Case No: 20/10 Page 12 of 32 13 he was declared brought dead.
39. This witness was cross examined by the Amicus Curiae for accused Satish and in her cross examination she stated that she never met the police after the incident and police made no inquiry from her and did not record her statement. However, she stated as follows:
"It is incorrect to suggest that everything which I had told in my examination in chief was told by my mother-in-law. Vol. I had narrated what I had seen."
40. She denied that her husband never remained in de- addition centre She admitted that her sister-in-law (Jethani) and her younger sister-in-law Neetu were also present in the house at the time of the incident. She admitted that there used to be quarrel between the family. She denied that there were complaints against her husband Pradeep for molesting ladies of the locality. She denied that her husband suffered heart attack due to excessive drinking. She denied that in the night of 27-11- 2009, after drinking heavily Pradeep fell from the stair case, sustained injury and died.
41. This witness was also cross examined on behalf of accused Naresh and Poonam on 27-11-12 as counsel for accused Naresh and Poonam was not available on 17-05-12.
42. In her cross examination on behalf of accused Naresh and Poonam she stated that she knew the statement which was recorded by the police but she had not read the same. She further stated that police must have recorded whatever was told to them by her. She stated that her statement was recorded by the SHO. She stated that at the time of the incident she was at Sessions Case No: 20/10 Page 13 of 32 14 a distance of 10 minutes walk from her house. She stated that she had not gone to the hospital with Pradeep in the morning and her mother-in-law had only taken him to the hospital. She further stated that her mother-in-law had taken Pradeep to hospital at about 2:30 p.m. and they came back at about 8:00 p.m. and at that time also Pradeep was not well.
43. She denied the suggestion that she was not present at the house on the day of the incident. She has stated that her sister-in-law could not inform to the police because her phone was broken by daughter of Naresh. In her cross examination also she stated that she had tried to make a call at number 100 but the mobile was broken by the daughter of Naresh. She admitted in her cross examination that her husband remained admitted in de-addiction centre in Nareal for about 2 months.
44. It was vehemently argued by the counsel for the accused persons that accused have been falsely implicated and no quarrel had taken place. It has also been argued that PW 1 is not a reliable witness.
45. Now as far as some confrontation in the statement of PW 1 given in the court with her statement Ex. PW 1/A is concerned, to my mind it is of no consequence. PW 1 has categorically stated the role played by each and every accused and how they gave beatings to her son Pradeep Kumar and to her. No doubt in her statement Ex. PW 1/A she had not stated that accused Poonam gave brick blow to her son as stated by her in the court. But this improvement does not belie the presence of PW 1 at the spot and it is not such an improvement so as to reject her testimony outrightly.
46. This witness was not cross examined on the day when Sessions Case No: 20/10 Page 14 of 32 15 her examination in chief was recorded, on behalf of accused Poonam and Naresh and was cross examined subsequently and it was at that time she started supporting the accused persons.
47. In the cross examination by the Ld Addl. PP for the state she again reiterated what was stated by her in her examination in chief and again narrated the role of each and every accused. Though again in a court question she stated that she was tutored by the IO when she gave her examination in chief.
48. It is the duty of the court to separate chaff from the grain. When one sees the over all testimony of this witness it becomes crystal clear that she was an eye witness and had seen the incident. Her presence also gets fortified by the fact that in the incident when she tried to save her son she received injury and her MLC was prepared which is Ex. PW 10/B. As far as his testimony which becomes a little shaky lateron, it is settled that testimony of a hostile witness is not to be totally discarded. Reliance can be placed upon Khujji @ Surendera Tiwari Vs. The state of Madhya Pradesh, 1991 AIR 1853. It is also settled that such portion of the statement of a hostile witness which supports the prosecution version can be accepted. Reliance can be placed upon : Gurpreet Singh Vs. State of Haryana 2002 VII AD (S.C.) 383 = (2002) 8 SCC 18.
49. PW 11 is the other eye witness of the case and she is the wife of the deceased. She has also narrated the incident and corroborated the testimony of PW 1. Though PW 11 stated that she alongwith her mother-in-law had taken Pradeep to hospital but in her cross examination she stated that she had not gone to the hospital with Pradeep and her mother in law PW 1. But this minor Sessions Case No: 20/10 Page 15 of 32 16 contradiction, in my opinion, is not enough to shake the testimony of this witness and does not make her unbelievable. PW 11 has also narrated that PW 1 received injury while saving her son. So I have no reason to disbelieve PW 11. So both PW 1 and PW 11 have supported the case of the prosecution in all material particulars of the case and I have no reason to disbelieve them.
50. MEDICAL OPINION: As per the prosecution Pradeep was admitted to the hospital for the first time on 27-11-2009, at about 3:10 p.m which is evident from his MLC Ex. PW 10/A. As per Ex. PW 10/A Pradeep was having following injuries :
CLW of 2 cm x .5 cm x .5cm on left eye brow Swelling and tenderness in right forearm Tenderness and swelling also + in Left forearm
51. It is also evident from PW 10/A that Pradeep absconded at about 4:10 p.m from the hospital and went home. Thereafter he was again brought to hospital on 28-11-2009 at about 12:30 a.m with the alleged history of seizure. He was unconscious and not oriented. Doctor declared him brought dead. The postmortem was conducted on the body of Pradeep and the PM report is Ex. PW 14/A which has been proved by Dr. K. Goel. PW 14 Dr. K. Goel gave the following opinion :
"All the injuries were antemortem in nature caused by blunt force impact. Rail road patters bruises were caused by heart blunt cylindrical object. Injuries were consistent with assault. However, final opinion regarding the cause of death will be given after the receipt of Sessions Case No: 20/10 Page 16 of 32 17 histopathological report and chemical analysis report of blood and viscera."
52. On 21-02-2011, after going through the MLC, PM report, FSL report Ex. PW 7/A and histopathological report Ex. PW 14/A- 1, Dr. K. Goel gave the subsequent opinion and opined that in view of the PM findings, chemical analysis report and histopathological report, cause of death was cardiac failure as a result of coronary insufficiency and cardiac myopathy which is precipitated by beatings, stress, tension and druess. He further deposed that the rest of the opinion mentioned in his PM report Ex. PW 14/A is relevant. So from the testimony of PW 14, PW 1 and PW 11 who has deposed about the beatings given to Pradeep, their ocular version is supported by the medical evidence on record. The cause of death is cardiac failure precipitated by beatings, stress, tension and duress.
53. It has also come on record and even it has not been disputed by the accused persons rather it was their own case that the accused was drunkard and even admitted in rehabilitation centre. So the accused persons were aware about the physical condition of the deceased and despite that they gave beatings to him. The beatings given by the accused persons and subsequent visit of the deceased to the hospital must have definitely resulted in stress and strain on the injured Pradeep (since deceased) which precipitated the cardiac failure which as per the opinion of the doctor was a cause of death in this case.
54. So in these circumstances, looking into the medical record, and the testimonies of PW 1 and PW 11 which are complementing each other, I have no hesitation to hold that despite having the knowledge that the deceased was a Sessions Case No: 20/10 Page 17 of 32 18 drunkard and was even admitted to rehabilitation centre for months, the accused persons gave beatings to deceased Pradeep Kumar which resulted in his cardiac failure.
55. RECOVERY OF DANDA AT THE INSTANCE OF ACCUSED POONAM AND SATISH : According to the prosecution, accused Poonam and Satish had given danda blows to the injured and the deceased. Both accused persons made disclosure statements and in pursuance to their disclosure statements they got a danda each recovered.
56. PW 5 H.C. Chand Singh deposed that both the accused persons i.e. Poonam and Satish led them to their house and got recovered one danda each. The dandas were converted into pullanda and seized vide memo Ex. PW 5/E-1 and Ex. PW 5/E-
2. This witness identified the danda recovered from accused Satish as Ex. P-1 and the danda got recovered by accused Poonam as Ex. P-2.
57. In the cross examination he denied the suggestion that he has not jointed the investigation or no recovery was effected in his presence. There appears to be no serious challenge to the testimony of this witness on the point of recovery.
58. Another witness of recovery is Lady constable Raj Bala who has been examined as PW 13. She has also deposed that after their arrest accused Poonam and Satish made their disclosure statements which are Ex. PW 5/D 1 and Ex. PW 5/D 2 and in pursuance to these disclosure statements they got recovered two dandas from their house which were seized vide memo Ex. PW 5/E-1 and Ex. PW 5/E-2. She further deposed that memo Ex. PW 5/E-2 which relates to the recovery of danda at the instance of accused Poonam bears her signature at point Sessions Case No: 20/10 Page 18 of 32 19 B. She had also identified the dandas as Ex. P-1 and Ex. P-2.
59. Another witness of recovery is IO of the case Inspector Narender Singh who has been examined as PW 17. He has deposed that both the accused i.e. Satish and Poonam got recovered one danda each from their house which was seized vide memo Ex. PW 5/E-1 and Ex. PW 5/E-2 which were signed by him at point C.
60. In the cross examination only a suggestion was put to him that no recovery of danda was effected at the instance of accused persons. Apart from this suggestion there is no serious challenge to the fact of recovery.
61. All the three witnesses of recovery have corroborated each other and nothing has come out in their cross examination to disbelieve them. It was also suggested to PW 5 and PW 17 that the dandas which were recovered at the instance of the accused Poonam and Satish are easily available in the market. Both these witnesses admitted this suggestion to be as correct. Here I would like to mention that generally the weapon of offences are those which are easily available in the market or lying in the home. It is very seldom that an accused prepares a very special weapon of offence which is a rarity to find in the market. So by simply admitting to this suggestion of the defence counsel regarding the easily availability of the danda in the market in my opinion does not make them unbelievable. So the prosecution has been able to prove successfully the recovery of the danda at the instance of accused Poonam and Satish.
62. Before coming to the conclusion as to under which sections the accused persons are liable to be convicted, I will refer to section 304 IPC which reads as follows :
Sessions Case No: 20/10 Page 19 of 32 20"304: Punishment for culpable homicide not amounting to murder.-
Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death.
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
63. Section 299 of the IPC defines culpable homicide as an act of causing death (i) with the intention of causing death; (ii) with the intention of causing some bodily injury as is likely to cause death;l and (iii) with the knowledge that such act is likely to cause death. The first and second clauses of the section refer to intention apart from knowledge ad the third clause refers to knowledge apart from intention. ''Intention'' and ''Knowledge'' postulate the existence of positive mental attitude. The expression 'knowledge' referred to in section 299 and section Sessions Case No: 20/10 Page 20 of 32 21 300 is the personal knowledge of the person who does the act To make out an offence punishable under Section 304 (II) of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew such act of his is likely to caused death.
64. So keeping in view the facts of this case and the injuries suffered by deceased Pradeep Kumar as per the medical evidence and the manner in which the injuries have been inflicted by the accused persons, it can be said that the accused persons had the knowledge that the injuries inflicted by them are likely to cause death but it cannot be said that they had any intention to cause death and no such intention has been established on record by the prosecution. So in these circumstances the accused persons are liable to be convicted U/s 304 Part II/34 IPC. It has also been established by the cogent and reliable testimonies of PW 1 and PW 11 that all the accused persons in furtherance of their common intention committed criminal trespass having made preparations to hurt Pradeep Kumar and gave beatings to him as a result of which deceased Pradeep Kumar received injuries. Accordingly all the accused persons are held guilty and convicted U/s 304 Part II/34 IPC and U/s 452/34 IPC. Put up for arguments on the point of sentence on 12-05-2014.
(Announced in the open Court on 03-05-2014.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE-02 NORTH DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 20/10 Page 21 of 32 22 IN THE COURT OF SH. RAJNISH BHATNAGAR, ADDL. SESSIONS JUDGE -02, NORTH DISTRICT ROHINI COURTS : DELHI IN RE : Sessions Case No. : 20/10 FIR No. : 381/09 P.S. : Narela U/s : 452/304/34 IPC State Vs.
1. Naresh Kumar S/o Sh. Devi Singh R/o H. No. 866, Village Bakner, Narela, Delhi.
2. Satish @ Mangal S/o Sh. Devi Singh R/o H. No. 866, Village Bakner, Narela, Delhi.
3. Poonam W/o Sh. Naresh Kumar R/o H. No. 866, Village Bakner, Narela, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. Girish Giri, Ld. Addl. PP for the state and Ld. counsel for the convicts on the point of sentence.
2. It is urged by the Ld. counsel for the convicts Naresh Kumar and Satish @ Mangal that the convicts are young man;
poor person; have a family to support; are the only bread earner of their family and both the convicts are first time offender and Sessions Case No: 20/10 Page 22 of 32 23 there is no previous conviction in their name. It is submitted by counsel for convict Poonam that she is a lady and she has also minor children to support and she is not a previous convict. It is prayed by the Ld. counsel for the convicts that keeping in view the above facts, minimum punishment be awarded to convicts.
3. On the other hand, Ld. Addl. PP for the state submits that by their act the accused persons had killed an innocent man who also had a family consisting of his wife and old mother. It is further submitted by the Ld. Addl. PP that the accused Satish is a man of criminal nature at at present he is in custody in case FIR No. 342/12 PS. Narela U/s 392/397/506/34 IPC . It is prayed by the Ld. Addl. PP for the state that maximum punishment be awarded to the convicts.
4. All the convicts have been convicted by me U/s 304 Part II/34 IPC and U/s 452/34 IPC. So I sentence all the convicts to undergo rigorous imprisonment for 7 years and pay a fine of Rs. 10,000/- and in default of payment of fine all the convicts shall undergo simple imprisonment for three month U/s 304 Part II/34 IPC.
5. I further sentence all the convicts to undergo simple imprisonment for three years and to pay a fine of Rs. 3,000/- and in default of payment of fine all the convicts shall undergo simple imprisonment for two month U/s 452/34 IPC.
6. All the sentences to run concurrently. The benefit of section 428 Sessions Case No: 20/10 Page 23 of 32 24 Cr.P.C. be given to all the convicts. Copy of judgment and order on sentence be given to all the convicts free of cost. File be consigned to Record Room.
(Announced in the open Court on 17-05-2014) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE -02 NORTH DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 20/10 Page 24 of 32