Delhi District Court
State vs . Mohan Lal & Others on 28 January, 2014
State Vs. Mohan Lal & others
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 54/11
ID No. : 02401R0538592011
FIR No. : 133/11
Police Station : Prasad Nagar
Under Section : 302/308/324/354/452/
506/34 IPC
State
Versus
Mohan Lal
S/o Kanhiya Lal,
R/o 16/989E, Khalsa Nagar,
Tank Road, Karol Bagh, New Delhi
.........Accused No.1
Bunty @ Rajeev
S/o Mohan Lal
R/o 16/989E, Khalsa Nagar,
Tank Road, Karol Bagh, New Delhi
.........Accused No.2
Manish
S/o Mohan Lal
R/o 16/989E, Khalsa Nagar,
Tank Road, Karol Bagh, New Delhi
.........Accused No.3
Vickey
S/o Mohan Lal
R/o 16/989E, Khalsa Nagar,
Tank Road, Karol Bagh, New Delhi
.........Accused No.4
SC No. 54/2011 Page 1 of 85
State Vs. Mohan Lal & others
Date of Institution : 24.10.2011
Date of Committal : 09.12.2011
Date of judgment reserved on : 19.12.2013
Date of judgment : 20.01.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. R.S. Malik Advocate, counsel for all the accused
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on July 30, 2011 at about 11 PM an intimation was received from wireless operator that someone had stabbed to the brother of caller in a quarrel at House No. 16/989, Bapa Nagar, Tank Road. The said information was received to the police control room from mobile number 9818719308, accordingly, the said information was recorded vide DD No. 38A (Ex.PW8/A) and the same was assigned to SI Jai Nath (PW22) who along with constable Murari left for the place of occurrence.
(i) On reaching the place of occurrence, PW22 found blood in a gali in front of House No. 16/984 E, Khalsa Nagar, Tank Road and also noticed blood inside the said house. Articles in the house were found scattered. It was revealed that the quarrel had taken place between the residents of House No. 16/984 E, Khalsa Nagar, Tank Road, Delhi and House No. 16/989 E, Khalsa Nagar, Tank Road, Delhi. Besides others, Meena had sustained serious injuries and injured persons had already been taken to RML hospital by the PCR van. Accordingly, PW22 made a request to the control room to send crime team. After leaving constable SC No. 54/2011 Page 2 of 85 State Vs. Mohan Lal & others Murari at the spot, PW22 left for RML hospital and collected the MLC of Meena Kumari (since deceased) and also collected the MLC of Balvinder and Bittoo. Doctor had declared Meena brought dead. Injured Bittoo (PW11) got recorded his statement Ex.PW11/A to PW22 SI Jai Nath.
(ii) In his statement Ex.PW11/A, complainant Bittoo alleged that his sister Meena had lodged an FIR No. 119/08, under Section 451/323/354/509/34 IPC at police station Prasad Nagar against accused Mohan Lal and his three sons and the said case was pending in the Court of Ms. Kiran Gupta, learned Metropolitan Magistrate and the matter was listed for July 30, 2011.
(iii) It was alleged that on July 30, 2011, no effective hearing could take place in the said matter as the case file was not received back from the Sessions Court, accordingly, matter was adjourned for October 22, 2011. It was alleged that when complainant along with his sister came out from the Court room, accused Mohan Lal, Vickey, Manish, Bunty and Mohan Dai met them outside and they threatened his sister Meena that they would not leave her alive today.
(iv) It was alleged that at about 10:30 PM, he along with his sister Meena, brother Balvinder and mother Chand Rani was present in the house and watching television. In the meantime, accused Mohan Lal who was carrying an iron pipe in his hand along with his sons namely Vickey and Manish who were armed with knives and Rajeev @ Bunty and Karan who were carrying iron pipe entered their house all of sudden and started assaulting them by their respective weapons. They had also scattered their household articles.SC No. 54/2011 Page 3 of 85
(v) It was alleged that accused Mohan Lal, Rajeev and Karan dragged his sister Meena and took her outside the house in a gali. In the meantime, accused Manish and Vickey assaulted the complainant by their respective knives. However, the complainant along with his brother Balvinder (PW12) rushed outside the house to rescue their sister. At that time, they saw that they (accused persons) had made Meena naked by tearing her clothes.
(vi) It was alleged that at that time, accused Mohan Lal had caught hold Meena by her right arm and Karan caught hold her by her left arm and accused Rajeev @ Bunty had given a blow of iron pipe on her face, consequently, she fell down on ground. It was alleged that Balvinder (PW12) tried to rescue Meena from the accused but accused Rajeev @ Bunty, Karan and Mohan assaulted him by their iron pipes. At that time, he was being caught hold by the accused Manish and Vickey.
(vii) It was alleged that when his sister fell down on the ground, all the assailants ran away from the spot. Thereafter, he made a call to police control room.
(viii) After recording the statement of complainant, PW22 returned to the place of occurrence where crime team met him. Members of the crime team inspected the place of occurrence and they also took the photographs of the spot. Thereafter, PW22 made an endorsement Ex.PW22/A on the statement of complainant and sent constable Murari to the police station to lodge an FIR for the offences punishable under Section 452/302/324/323/506/354/34 IPC.
(ix) After registration of the FIR, investigation was assigned to SC No. 54/2011 Page 4 of 85 State Vs. Mohan Lal & others inspector Joginder Singh (PW30). Accordingly, he along with SI Manish Kumar, head constable Sadhu Ram reached the spot and took the charge of the investigation from PW22. During investigation, he seized exhibits from the spot and prepared site plan. Accused Mohan Lal was arrested and pursuant to his disclosure statement, an iron pipe was recovered at his instance. Similarly, accused Vickey, Rajeev @ Bunty and Manish were also arrested and they were interrogated. At the pointing out of accused Rajeev @ Bunty, one iron pipe was recovered whereas a knife was recovered at the pointing out of accused Vickey. However, knife could not be recovered pursuant to the disclosure statement made by the accused Manish. During investigation, it was revealed that Karan was juvenile, accordingly, SI Manish, who was also designated as a Juvenile Police Officer was directed to conduct separate investigation qua him and juvenile Karan got recovered one iron pipe pursuant to his disclosure statement.
(x) During investigation, post-mortem was got conducted on the dead body of Meena and doctor opined that the death was caused as a result of Cranio Cerebral damage consequent upon blunt force trauma to the head inflicted via injury No. 1 to 3 which were produced by forceful impact with heavy blunt object/weapon and the said injuries individually and collectively were sufficient to cause death in ordinary course of nature and injuries were found ante-mortem in nature and fresh in duration.
(xi) During investigation, result was obtained on the MLC of injured Bittoo and Balvinder and as per medical opinion, they sustained simple injury by the means of sharp edge weapon.
2. After completing investigation, challan was filed against four accused persons before the Court of learned Metropolitan Magistrate for SC No. 54/2011 Page 5 of 85 State Vs. Mohan Lal & others the offence punishable under Section 302/452/324/308/354/506/34 IPC. Separate report was filed qua juvenile Karan before learned Juvenile Justice Board.
3. After complying with the provisions of Section 207 Cr. P.C. case qua present four accused persons was committed to the Court of Sessions on December 05, 2011. Accordingly, matter was assigned to this Court on December 9, 2011. Thereafter, case was registered as Sessions Case No. 54/11.
4. Vide order dated January 2, 2012, a charge for the offence punishable under Sections 148/149 IPC and under Sections 452/354/506 Pt-II/302/308/324 read with Section 149 IPC was framed to which they pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as 30 witnesses. For the purpose of discussion, all the witnesses are classified in the following six categories:-
Eye-witnesses:-
PW11 Bittoo, brother of deceased
PW12 Balvinder Singh, brother of deceased
PW13 Chand Rani, mother of deceased
Medical and Scientific Witnesses:-
PW14 Dr. Monika, proved the MLC of PW11 & PW12
PW15 Dr. Narender Arya, proved the MLC of
deceased
PW16 Dr. Sreenivas M. proved the autopsy report
SC No. 54/2011 Page 6 of 85
State Vs. Mohan Lal & others
PW28 Ms. Imrana, Sr. Scientific Officer proved the
FSL report
Members of Crime Team:-
PW2 Constable Dinesh, photographer
PW3 ASI Pawan Kumar, Finger Print Expert
PW20 SI Dhan Singh, in-charge of crime team
Connecting Evidence:-
PW1 HC Ram Kishan, duty officer, proved the FIR
PW4 Constable Raj Kumar, delivered the copy of
FIR to Illaqua Magistrate and joined
investigation with PW30 on 06.08.2011
PW5 HC Manoj, MHC (M)
PW6 Constable Bharat Singh, deposited exhibits
with FSL Rohini
PW9 ASI Puran Chand, proved the previous FIRs
No. 119/2008 and 121/2008
PW17 Constable Ravinder Hooda, attended the PCR
Call and proved PCR form
PW18 SI Manohar Lal, proved the scale site plan
PW19 Constable Prem Pradhan, delivered the exhibit
to MAMC and collected report
PW21 HC Rajender Singh, PCR official, took the
injured and deceased to the hospital
Formal Witnesses:-
PW7 Constable Vijender Singh, DD writer, proved
DD No. 2B
PW8 HC Dhani Ram, duty officer, proved DD No.
SC No. 54/2011 Page 7 of 85
State Vs. Mohan Lal & others
38A
PW10 Rajneesh Pabbi, relative of deceased,
identified her dead body
PW29 Vinod Kumar Handa, brother of deceased,
identified her dead body
Members of Investigating Team:-
PW22 SI Jai Nath, first investigating officer
PW23 HC Sadhu Ram, joined investigation with
PW30 on 31.07.2011
PW24 SI Mangej, joined investigation with PW30 on
01.08.2011
PW25 SI Manish, joined investigation with PW30 on
31.07.2011
PW26 Constable Murari, joined investigation with
PW22
PW27 Constable Ajit Singh, joined investigation with
PW30 on 04.08.2011
PW30 Inspector Joginder Singh, investigating officer
(i) It is pertinent to state that the deposition of PW23 HC Sadhu
Ram could not be completed due to his sudden death, accordingly, his name was dropped by the leaned Additional Public Prosecutor on July 1, 2013. On the said date, learned defence counsel also made a statement that accused persons shall not dispute the opinion given by Dr. Ritesh Pathak on the MLC of injured Bittoo and Balvinder. In view of his statement, State also dropped the doctor from the list of witnesses.
6. On culmination of prosecution evidence, accused persons SC No. 54/2011 Page 8 of 85 State Vs. Mohan Lal & others were examined under Section 313 Cr. P.C. wherein they denied all incriminating evidence led by the prosecution. Accused Bunty @ Rajeev and Manish took the plea that they were not present at the time of incident. Accused Bunty submitted that he was in his factory at Tank Road whereas accused Manish submitted that he had gone to Kikkarwala Chowk after taking dinner. However, both the accused refused to lead any evidence in their defence.
(i) Accused Mohan Lal and Vickey also claimed that they are innocent and they have been falsely implicated in this case. Accused Mohan Lal submitted that on July 30, 2011, after taking dinner, he was strolling in the gali. All of sudden, PW11 to PW13 came and caught hold him and dragged him inside their house where they started beating to him. But he got rid of himself and ran towards the gali while raising alarm bacho- bacho. All the said persons chased him and caught hold him again in the gali and started to beat him. In the meantime, Meena also joined them and she started tearing her clothes. It was submitted that Bittoo was carrying knife whereas PW13 Chand Rani was having an iron pipe.
(ii) He further submitted that after hearing his hue and cry, his son Vickey came down stairs from first floor to rescue him. But Balvinder caught hold him and Bittoo assaulted multiple blows of knife upon him in order to kill him, consequently, Vickey sustained knife injuries on several parts of his body.
(iii) He further submitted that in the meantime, his grandson Karan also reached there and tried to rescue Vickey. At that time Meena assaulted Karan by the means of knife, accordingly, he sustained injury on his arm and bleeding started from his wound. In order to save himself and all of us, SC No. 54/2011 Page 9 of 85 State Vs. Mohan Lal & others Karan snatched iron pipe from Chand Rani and assaulted Meena several times by the snatched pipe, consequently knife, which she was carrying fell down. Thereafter, Meena rushed to inside her house and Chand Rani followed her. At that time Chand Rani started raising alarm and called Bittoo and Balvinder stating that Meena had fallen from stairs.
(iv) He further submitted that he did not know what happened thereafter. He took his son Vickey to PS Prasad Nagar and tried to lodge a complaint but police did not record FIR and asked him to take the injured to the hospital immediately. Accordingly, he took the injured Vickey to LHMC Hospital where Vickey was got admitted. Since, he and Karan also sustained injuries, they were also admitted by the doctor.
(v) Thereafter, police reached the hospital and interrogated him and his son and recorded their statement. At about 1:00 AM police official took him and Karan to the police station on the pretext that they would record their FIR but police did not record their FIR; rather arrested them in this case. It was submitted that the incident was witnessed by his daughter Pooja and she had made a call to the police. It was further submitted that at the time of incident his sons namely Manish and Bunty @ Rajeev were not present. Accused Vickey also took the same plea.
(vi) Both the accused submitted that they would lead evidence in their defence.
7. In order to prove their version, accused Mohan Lal and Vickey examined following four witnesses:-
DW1 Dr. Harvinder Kaur, proved the MLC of Mohan
SC No. 54/2011 Page 10 of 85
State Vs. Mohan Lal & others
Lal, Vickey and Karan
DW2 Dr. Rakesh, also proved the MLC of Vickey
DW3 Dr. Rahul, also proved the MLC of Karan
DW4 Ms. Pooja, daughter of Mohan Lal
8. Learned counsel appearing for the accused persons argued on the following points:-
(i) That FIR is ante-time and there is inordinate delay in sending its copy to the Illaqua Magistrate.
(ii) That there is inconsistency in the version narrated in FIR and recited in the brief facts prepared at the time of inquest.
(iii) That the relations between the parties were inimical and due to that reason, complainant party implicated all male members of the accused family.
(iv) That conduct of injured persons was not of an ordinary person.
(v) That there is inconsistency between the ocular evidence and medical evidence.
(vi) That prosecution failed to explain the injuries on the persons of accused persons.
(vi) That during the trial eye-witnesses made an abrupt attempt to SC No. 54/2011 Page 11 of 85 State Vs. Mohan Lal & others set up a new case by making substantial improvements in their deposition.
(vii) That the incident had not taken place in the manner as projected by the complainant party.
(viii) That accused Bunty @ Rajeev and Manish were not present at the time of incident.
(ix) That whatever injuries were caused to the complainant party, same were caused in exercise of right of private defence to protect the life of Mohan Lal and Vickey.
(x) That deceased sustained fatal injuries while she fell down from stair-case.
9. I have heard submissions advanced by learned counsel for both the parties in length and perused the record carefully.
Contentions relating to FIR is ante-time and inordinate delay in sending its copy to the Illaqua Magistrate:-
10. Learned counsel appearing for accused persons sagaciously contended that prosecution has set up a case against the accused persons that the rukka was sent from the spot by PW22 SI Jai Nath through constable Murari at 4:30 AM and FIR was registered at 4:50 AM. But surprisingly the copy of FIR was received by the learned Illaqua Magistrate at 6:20 PM, it was thus contended that there was about 14 hours delay in sending the copy to the Illaqua Magistrate and the said delay remained unexplained during trial. It was further contended that prosecution has set SC No. 54/2011 Page 12 of 85 State Vs. Mohan Lal & others up a case that after registration of FIR, further investigation was assigned to PW30 inspector Joginder Singh, consequently he reached the spot and conducted further investigation. It was further contended that as per the testimony of PW22 and PW30, sealed pullandas were handed over to PW30, who deposited the same with the MHC (M) when he returned to the police station. It was urged that the testimony of PW22 and PW30 are contrary to the entry made in register no. 19 (Ex. PW5/A) wherein the said pullandas were deposited by PW22 under DD No. 38A, which proves that till the said pullandas were deposited with the MHC (M), FIR was not lodged otherwise pullandas would have been deposited under FIR No. 133/2011 and not under DD No. 38A.
(i) It was astutely contended that since FIR is not only ante-time but there is also inordinate unexplained delay in sending its copy to the learned Illaqua Magistrate, it shows that FIR was lodged after due consultation and deliberation, which creates a grave suspicion over the prosecution version. In support of his contention, learned defence counsel relied upon the judgment Thulai Kali v. State of Tamil Nadu, (1972) 3 SCC 393.
11. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that there is no delay either in lodging the FIR or sending its copy to the learned Illaqua Magistrate. It was further contended that if there was any delay, same is not fatal to the prosecution case in any manner.
12. Before proceedings further, I deem it appropriate to have a look over the settled proposition of law.
SC No. 54/2011 Page 13 of 8513. Learned defence counsel relied upon Thulai Kali v/s State of Tamil Nadu, (1972) 3 SCC 393, wherein it was held by the Apex Court:-
"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story As a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
(emphasis supplied)
(i). In Bijoy Singh v/s State of Bihar, AIR 2002 SC 1949 it was held:-
Para 7. "Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157, Cr. P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay SC No. 54/2011 Page 14 of 85 State Vs. Mohan Lal & others and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it."
(emphasis supplied)
14. In the light of above settled proposition of law, facts of the case in hand will be analyzed.
15. To adjudicate upon the above controversy, deposition of PW1, PW4, PW5, PW22 and PW30 are relevant.
16. Prosecution has set up a case that the alleged incident had taken place on July 30, 2011 at about 10:30 PM. Rukka was sent from the spot by PW22 at about 4:30 AM and thereafter FIR was registered at about 4:50 AM.
(i) It is admitted case of prosecution that police had received the intimation of this incident first time at about 11:00 PM vide DD No. 38A (PW8/A) and the said DD was assigned to PW22, who along with constable Murari left for the place of occurrence. After reaching the spot, it was revealed that the injured persons had already been taken to hospital by the PCR Van. Accordingly, PW22 also left for RML hospital after leaving constable Murari to guard the place of occurrence. As per MLC of injured Balvinder and Bittoo, they were brought to the hospital at about 11:40 PM. As per the MLC of both the injured, they were referred to Surgery Emergency. Thus, it means that the statement of PW Bittoo must have been recorded thereafter. PW22 also deposed that after recording the statement of PW Bittoo, he returned to the place of occurrence and thereafter he made an endorsement on his statement. As per rukka Ex. PW22/A, it was sent from the place of occurrence at about 4:30 AM. Thus, SC No. 54/2011 Page 15 of 85 State Vs. Mohan Lal & others prosecution version is that rukka was sent at about 4:30 AM. Here it is pertinent to point out that there is overwriting at the words 'A.M.' Perusal of the same reveals that the 'P.M.' has been converted into 'A.M.' It means that time 4:30 PM has been converted into 4:30 AM. This overwriting creates first doubt over the prosecution version that the rukka was sent at 4:30 AM. No doubt, one can plead that it was mere a clerical error, but in subsequent part of the judgment, it will become clear that it was not a clerical or inadvertent error but an deliberate attempt to show that there was no delay in lodging the FIR.
(ii) PW1 HC Ram Kishan was duty officer on that day and he deposed that he had received the rukka at about 4:50 AM. Though he deposed that copy of FIR was sent to Illaqua Magistrate and senior police officers on the same day, but he failed to depose at what time it was sent. No doubt, it is not feasible for an individual to recall each and every minute detail, thus, one can say it was immaterial if PW1 failed to depose the time of dispatch. To rule out such type of probability and considering the importance of time of dispatch of FIR to the Ilaqua Magistrate, specific column is provided in the FIR i.e. column no. 15 wherein duty officer is supposed to mention the date and time of dispatch of FIR to the Court. But in the instant case said column is left blank by PW1 and in his cross- examination he failed to furnish any reasonable explanation why he had left the said column blank. This lapse further casts a doubt over the prosecution version that the copy of FIR was sent to the Illaqua Magistrate immediately.
(iii) PW4 constable Raj Kumar is the person who was posted as motor-cycle rider in the police station and was sent to the residence of Illaqua Magistrate to deliver the copy of FIR. Though he deposed that he had delivered the copy of FIR at the residence of learned Illaqua Magistrate SC No. 54/2011 Page 16 of 85 State Vs. Mohan Lal & others on July 31, 2011 but he also failed to depose at what time he left from the police station and when he returned to the police station. In his cross- examination, he candidly admitted that he had not made any entry in the log book of his motor-cycle that he had delivered the copy of FIR at the residence of senior police officers and concerned Metropolitan Magistrate. Thus, deposition of PW4 is also not helpful to the prosecution to establish that there was no delay in sending the copy of FIR to the learned Illaqua Magistrate.
(iv) Along with the charge-sheet, prosecution has also filed the copy of FIR containing the endorsement of concerned Metropolitan Magistrate and same is placed at Challan Page No. 259. Perusal of the same reveals that the copy was received by learned Metropolitan Magistrate at about 6:20 PM. It means that copy was received by learned Metropolitan Magistrate after 14 hours of its registration. But prosecution failed to furnish any explanation whatsoever to justify the said delay. Now, here the overwriting in the timing of 4:30 AM becomes relevant. It shows that the rukka was prepared at about 4:30 PM and thereafter FIR was sent to the learned Illaqua Magistrate immediately. It means that FIR was registered after more than 17 hours of incident. Needless to say that time of 17 hours is more than enough for the purpose of consultation, fabrication, and manipulation. But it is not the prosecution case. Rather prosecution version is that FIR was registered at 4:50 AM, if it was so, it means there was more than 13 hours delay in sending the copy of FIR to the concerned Metropolitan Magistrate for which no explanation whatsoever has been furnished. Needless to say that time of 13 hours is also more than enough for the purpose of deliberation, consultation, fabrication and manipulation.
(v) PW22 also deposed that when he reached the RML hospital, SC No. 54/2011 Page 17 of 85 State Vs. Mohan Lal & others duty constable handed over two sealed pullandas to him, which he seized vide memo Ex. PW22/B. Ex. PW22/B reveals that both the pullandas were containing blood stained clothes of injured persons namely Balvinder and Bittoo. PW22 further deposed that he had handed over the said pullandas along with other documents to PW30 at the spot, when further investigation was assigned to him. PW30 corroborated his testimony by deposing that after registration of FIR further investigation was assigned to him. Accordingly, he along with SI Manish, HC Sandhu Ram and constable Murari reached the place of occurrence where SI Jai Nath (PW22) met him and he handed over the documents i.e. two DDs, three MLCs, two sealed pullandas and the seizure memo of the said pullandas. In his cross- examination, PW30 deposed that he reached the spot at about 5:40 AM and remained at the spot for about 2-3 hours. Thereafter, he left for Lady Hardings Hospital from where accused Mohan Lal and juvenile Karan were arrested. Thereafter, he along with his team went to RML hospital and recorded the statement of injured Balvinder. From RML hospital, they reached the house of accused Mohan Lal and juvenile Karan to recover the weapon of offence and thereafter he sent SI Manish to produce juvenile before the Juvenile Justice Board and then he returned to the police station along with accused Mohan Lal. After returning to the police station, he deposited the case properties including above two pullandas with the MHC (M). Thus, as per the testimony of PW30, he had deposited the above two pullandas when he returned to the police station after completing investigation qua accused Mohan Lal and juvenile Karan.
(vi) If it was so, MHC(M) would have received the pullandas against the FIR No. 133/2011 because by that time FIR had already been registered and its number was with PW22 as well as PW30. But it is not so. Ex. PW5/A is the extract of register No. 19, which proves that the above-
SC No. 54/2011 Page 18 of 85State Vs. Mohan Lal & others said two pullandas were deposited by SI Jai Nath and not by PW30. It further proves that PW22 had deposited the said pullandas under DD No. 38A. Thus, PW22 and PW30 made a false statement in the Court that the said two pullandas were handed over to the I.O. PW30. Ex. PW5/A further proves that when the said two pullandas were deposited by SI Jai Nath, FIR was not registered. Had it been registered, SI Jai Nath would have deposited the said pullandas against FIR No. 133/2011 and not against DD No.38A. This further falsifies the prosecution version that the FIR was registered at 4:50 AM. It is pertinent to state that it is well settled law that documentary evidence shall prevail over the oral testimony, thus there is no reason for the Court not to rely upon Ex. PW5/A, which is the admitted document of the State.
17. From the foregoing discussion, it becomes explicit that there was not only delay in lodging the FIR but there was also inordinate unexplained delay in sending the copy of FIR to the learned Illaqua Magistrate. Thus, in the light of law laid down in Bijoy Singh's case (supra) prosecution version is required to be scrutinized minutely to ensure as to whether any innocent person (s) has been implicated in the matter or not.
Contentions relating to inquest report:
18. Learned counsel appearing for the accused persons perspicaciously contended that deceased was brought dead in the hospital on July 30, 2011 at 11:40 PM and the dead body was received in the mortuary of LNJP on July 31, 2011 at 12:50 PM. But till then no inquest was conducted; rather it was conducted only on August 1, 2011. It only proves that I.O. was not sure what case was to be set up against the accused SC No. 54/2011 Page 19 of 85 State Vs. Mohan Lal & others persons. It was submitted that though inquest was conducted on August 1, 2011, yet the name of accused Manish and Vickey was not mentioned therein; it only proves that their name was subsequently added in the FIR. In support of his contention, learned counsel placed reliance on the judgments Balwant Singh v. State, 1976 CLR (Delhi) 41 and Balaka Singh & others v. State of Punjab, AIR 1975 SC 1962.
19. On the other hand, learned Additional Public Prosecutor for the State countered the said contentions by arguing that there is no delay in conducting the inquest. Mere fact that application was sent to the autopsy surgeon on August 1, 2011 does not mean that there was any delay in conducting the inquest. However, he fairly conceded that the name of two accused namely Manish and Vickey is missing in the inquest paper, which should not have been. But he swiftly added that their name is mentioned in the FIR, thus there is no reason to disbelieve the prosecution case.
20. In Balwant Singh v. State (supra) it was held:
"There is yet another vital document to verify the truthfulness of the prosecution version. The inquest report has to be prepared promptly because it has to be sent to the doctor along with the dead body when the both is sent for autopsy. It has a column for writing out in brief the facts of the case. If facts about the occurrence are stated in the inquest report. It would show that at least by that time the version of the occurrence has been given. If it does not mention the facts about the occurrence, the arguments that the investigating officer was not sure of the facts when the inquest was drawn out would carry weight."
(i) In Balaka Singh (supra), it was held by the Apex Court:-
"We have perused Ex. P.H. inquest report ourselves and find that in the brief facts of the case which were made to SC No. 54/2011 Page 20 of 85 State Vs. Mohan Lal & others the investigating officer by Banta Singh only the name of Balaka Singh, Joginder Singh, Pritam Singh, Darbara Singh and Jarnail Singh are mentioned. There is no reference at all to Makhan Singh, Sucha Singh, Teja Singh and Inder Singh in the report nor it is mentioned that Teja Singh and Inder Singh incited or exhorted the other accused persons to open the assault on the deceased which appears to be the starting point of the occurrence. The prosecution has not been able to give any reasonable explanation for this important omission in the inquest report. -------------In these circumstances, therefore, the High Court was fully justified in holding that the omission of the names of the four accused acquitted by the High Court in the inquest report was a very important circumstance which went in favour of the four accused. This omission has a two fold reaction. In the first place it throws doubt on the complicity of the four accused acquitted by the High Court and secondly it casts serious doubt on the veracity and authenticity of the FIR itself. It is not understandable as to why the four accused who are alleged to have taken an active part in the assault on the deceased were not at all mentioned in the inquest report."
(emphasis supplied)
21. In the instant case, as per post-mortem report Ex. PW16/B, victim died on July 30, 2011 at about 11:40 PM and the dead body was sent to mortuary of LNJP Hospital on July 31, 2011 at 12:50 PM. It means that the dead body was sent to mortuary after about 12 hours. As per the testimony of PW30 and Ex. PW16/A, inquest was conducted on August 1, 2011. It means that the inquest was conducted after about 24 hours of the death. At the time of conducting inquest, investigating officer (PW30) had recited brief facts as under:-
"Bittoo (brother of deceased) stated in his statement that his neighbour Mohan Lal and his family member attacked on them with iron rod and knife. Deceased Meena Kumari was caught hold by Mohan Lal & Karan and attacked by Rajeev @ Bunty with iron rod. She fell down on the ground. She was brought dead in the hospital"SC No. 54/2011 Page 21 of 85
(i) Thus, it becomes explicit that name of Manish and Vickey did not find any place in the brief facts as mentioned in Ex. PW16/A. Now question arises as to whether during trial, prosecution has furnished any just and reasonable explanation for the said lapse? Though I have gone through the entire deposition of PW30, yet I failed to find any explanation whatsoever from the prosecution side. It means that prosecution has failed to furnish any explanation whatsoever about the omission of the name of accused Manish and Vickey in the inquest report. In view of the above-said case law, a reasonable doubt arises over the prosecution case.
Contentions relating to inimical relations between the parties and conduct of injured persons:-
22. Learned counsel appearing for the accused persons energetically contended that the relations between the parties were inimical and this fact is also admitted by the injured persons. It was submitted that due to the said inimical relations, injured persons have falsely implicated all the male members of the family of Mohan Lal and during trial an attempt was also made to implead female members of the family. It was further contended that the conduct of injured persons was not of an ordinary normal person as they did not inform the police because they were well aware that they had picked up a quarrel with accused Mohan Lal. It was further submitted that though both the injured persons were conscious and oriented but they did not disclose the name of assailants either to the doctors or their relatives who met them in the hospital. Even their mother Chand Rani (PW13) did not accompany the injured to the hospital. Even they did not co-operate in the investigation and refused to give their finger prints to the investigating officer despite direction.
SC No. 54/2011 Page 22 of 8523. On the converse, learned Additional Public Prosecutor refuted the said contentions by arguing sagaciously that the inimical relations between the parties was the motive to commit the offence. However, he fairly admitted that during trial injured persons made an attempt to implead female members of the family of Mohan Lal and in this regard an application under Section 319 Cr. P.C. was moved by the counsel for the complainant but the same was dismissed and even State has not challenged the said order. It was contended that mere fact injured persons attempted to implead some more persons during trial is not sufficient ground to discard the prosecution case. It was further submitted that mere fact injured persons failed to inform the police control room is also not sufficient to discard the prosecution case. It was further submitted that injured persons did not inform the name of assailants to the doctors but they have furnished reasonable explanation for the same that doctors did not ask for the same. However, he fairly conceded that injured refused to give their finger prints without any just and reasonable explanation.
24. Before dealing with the contentions, I prefer to have a look over the settled proposition of law on the evidence of interested or partisan witnesses. In this regard the observations of Apex Court in Hari Obula Reddi v. State of Andhra Pradesh, AIR 1981 SC 82 are relevant and reproduced as under:-
"But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If SC No. 54/2011 Page 23 of 85 State Vs. Mohan Lal & others on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasis that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations. "
(emphasis supplied)
25. Admittedly, the relations between the parties were not cordial. Rather prosecution case is that deceased had lodged an FIR No. 119/08 against Mohan Lal and his three sons namely Manish, Vickey and Rajeev @ Bunty for the offences punishable under Sections 451/354/323/509/34 IPC and on July 30, 2011 deceased along with her brothers attended the proceedings before the Court of learned Metropolitan Magistrate and matter was adjourned to October 22, 2011. While deceased along with her brothers were coming out from the court room, accused Mohan Lal, Vickey, Manish, Bunty and their mother met them and SC No. 54/2011 Page 24 of 85 State Vs. Mohan Lal & others threatened the deceased that they would not leave her alive today. Thus, it is proved that the relations between the parties were inimical and prosecution case is that the said inimical relations was the motive to commit the offence. Indisputably both the brothers of deceased i.e. PW11 and PW12 also sustained injuries in this incident, thus their presence at the spot can not be doubted. Now, question arises as to whether they had exaggerated the incident or impleaded some more persons due to inimical relations will be dealt with later on. In the light of the above settled proposition of law, the testimony of both the witnesses and their mother are required to be examined minutely but their testimonies can not be discarded mere on the ground that they are interested or partisan witnesses.
26. Now coming to the conduct of PW11 and PW12.
27. Admittedly, both the injured persons knew the accused persons previously as accused persons are also residing in the same gali opposite to their house. Despite that neither of them informed the name of assailants either to the PCR officials or to the doctors. Even they did not inform the name of assailants to their brother Vinod Handa (PW29). PW12 in his cross-examination deposed that Bittoo (PW11) had disclosed the name of assailants to the PCR official in his presence. PW11 in his cross- examination deposed that he did not disclose the name of assailants to the PCR officials at the spot but he disclosed that they were assaulted by their neighbours. But further deposed that he had disclosed the name of assailants to the PCR officials on the way to the hospital. Thus, as per the deposition of PW11 and PW12, PW11 had disclosed the name of assailants to the PCR officials on the way to the hospital. But their testimony is not supported by the PCR official HC Rajender Singh (PW21).
SC No. 54/2011 Page 25 of 85State Vs. Mohan Lal & others In his cross-examination, he categorically deposed that injured persons did not disclose the name of assailants to him on the way. To the court question, PW21 deposed that though he asked the name of assailants, but injured told him that they had a quarrel with the persons residing opposite to their house. Even PCR Form Ex. PW17/A did not support the version of PW11 and PW12 as the name of assailants is not mentioned in the reporting made by PCR official to the control room. If PW11 and PW12 had disclosed the name of assailants to the PCR officials on the way to hospital as deposed by PW11, they (PCR official) would have certainly informed the control room but it is not so. Moreover, PW21 categorically deposed that he asked the name of assailants from the injured but they did not disclose the name and only told him that they had a quarrel with their neighbours residing opposite to their house. In these circumstances, the deposition of PW11 and PW12 to the extent that they had disclosed the name of assailants to the PCR officials does not inspire any confidence.
(i) PW11 in his cross-examination further deposed that he did not inform the name of assailants to the police official posted at RML hospital as he did not ask for the same. Similarly, he deposed that though he had disclosed his name, parentage and address to the doctor and since doctor asked him how he had sustained injury, he also narrated the doctor how he sustained injuries but deposed that since doctor did not ask the name of assailants, he did not disclose the name of assailants to the doctor. Similarly, PW12 deposed that since doctor did not ask the name of assailants, he did not disclose the same to the doctor.
(ii) PW14 is the doctor, who examined both the injured in the RML hospital. In her cross-examination, she deposed that whenever any injured is admitted in the hospital, they ask his name, parentage and SC No. 54/2011 Page 26 of 85 State Vs. Mohan Lal & others address and also make inquiry about the alleged history. She candidly admitted that both the injured persons namely Balvinder and Bittoo were fully conscious and oriented when brought to the hospital and they did not disclose the name of assailants, but they disclosed that they were assaulted. PW15 is the doctor who attended the deceased and he deposed that he asked the alleged history from the attendants i.e. HC Rajender (PW21) and Vinod Handa (PW29) and they told him that the injured had been assaulted by some persons but they did not tell him their names. Since, PW11 and PW12 did not disclose the name of assailants to PW21 and PW29, certainly they were not in the position to tell the name of assailants to PW15. But since, PW14 asked from PW11 and PW12 about the circumstances under which they sustained injuries, both the injured persons were supposed to disclose the name of assailants to the doctors, but they failed to disclose the same.
(iii) From the above, it becomes crystal clear that though PW11 and PW12 had an opportunity to disclose the name of assailants to the PCR officials as well as to the doctor, yet they did not disclose the same and the reasons furnished by them does not appear convincing. However, their said default is not sufficient to discard their testimony as happening of occurrence in this case is not in dispute; rather manner of occurrence and involvement of number of accused persons are in dispute, which will be discussed later on.
(iv) PW11 and PW12 in their deposition admitted that investigating officer asked them to give their finger prints and they refused to give their finger prints to the police. To a court question, PW11 stated that he did not give his finger prints as police did not inform him that his finger prints were required for the purpose of comparison with the finger SC No. 54/2011 Page 27 of 85 State Vs. Mohan Lal & others prints found on the weapon of offence. He further stated that his finger prints must be available on the articles lying in his house, thus he refused to give his finger prints. To the court question, PW12 stated that they did not give finger prints as police was supposed to take the finger prints of accused persons and not of complainant/victims. Certainly, reasons furnished by them are not convincing.
(v) It is not clear what action was taken by the investigating officer against the PW11 and PW12 when they refused to give their finger prints to him for the purpose of investigation. Does it mean that investigating agency intend to say that investigating officer can not ask any person to give his finger prints for the purpose of investigation? There is no explanation why the investigating officer did not take any action against them for their unwarranted refusal. This only reflects that matter was not investigated properly.
(vi) As per crime report Ex. PW20/A, finger prints were lifted from the mirror of dressing table, T.V. and refrigerator voltage stabilizer. Since all the above articles were the house hold articles of the complainant party, thus it would be immaterial if the finger prints of PW11 and PW12 would be found on the said items, thus, it looks quite absurd that PW30 would ask the witness to give their finger prints for the purpose of comparison with chance prints found on the said items. Does it mean that any other weapon of offence was also recovered in this on which finger prints were found?
Contentions relating to improvements made by eye witnesses in their deposition:-
28. Learned counsel appearing for the accused persons vigorously contended that no reliance can be placed on the testimony of SC No. 54/2011 Page 28 of 85 State Vs. Mohan Lal & others PW11 to PW13 as they have made substantial improvements in their respective deposition, which have been duly got confronted from their previous statements. It was further submitted that even the witnesses did not hesitate to implead the female members of the accused family by deposing that Mohan Dai w/o of Mohan Lal and Babli w/o Rajeev @ Bunty also participated in the alleged incident knowingly well that they did not utter even a single word against them during investigation. It was contended that law is well settled that where the witnesses make two inconsistent statements in their evidence either at one stage or two different stages, the testimony of such witnesses become unreliable and unworthy of credence. In support of his contention reliance is placed on the judgments Surajmal v. State, AIR 1979 SC 1408 and Anil Kumar v. State of Punjab 2000 (4) Crimes 283.
29. Per contra, learned Additional Public Prosecutor opposed the said contentions by arguing sagaciously that mere witnesses made some improvements in their deposition is not sufficient to discard their testimonies. It was submitted that the eye-witnesses first time introduced Mohan Dai and Babli in their deposition and an application was also moved to summon them, which was dismissed by the Court and even investigating officer in his examination-in-chief deposed that during investigation none of the witnesses had disclosed the involvement of these two ladies. It was submitted that mere fact eye-witnesses introduced some more persons during trial is not sufficient to discard the entire prosecution case.
30. In Surajmal v. State (supra) it was held by the Apex Court:-
"It is well-settled that where witnesses make two inconsistent statements in their evidence either at one state or at two stages, the testimony of such witnesses becomes SC No. 54/2011 Page 29 of 85 State Vs. Mohan Lal & others unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. "
(i) In Anil Kumar v. State of Punjab (supra) Apex Court observed:-
"We have also ourselves scrutinized the evidence of PWs 7 and 13 and from the cross-examination of these witnesses it appears that the most material part of their evidence in Court had not been deposed to while being examined under Section 161, and, therefore, by no stretch of imagination, two witnesses can be held to be reliable witnesses so that the prosecution can rely upon their testimony for a conviction of the accused appellant. In the aforesaid premises, it must be held that the prosecution has utterly failed to establish its case beyond reasonable doubt."
(ii) In State of U.P. v/s M.K. Anthony, (1985) 1 SCC 505 Apex Court has laid down the approach which should be followed by the Court at the time of appreciating evidence of a witness and same is as under:-
"10. 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 formed, 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 as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness 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. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to SC No. 54/2011 Page 30 of 85 State Vs. Mohan Lal & others the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer..................."
(iii) In State v. Saravanan AIR 2009 SC 152, it has been laid down that:
"Even otherwise, it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies."
(emphasis supplied)
31. The testimonies of eye-witnesses shall be analysed in the light of above settled proposition of law. As pointed out by learned defence counsel and fairly conceded by the learned Additional Public Prosecutor for the State that eye-witnesses made an abrupt attempt to set up a new case in their respective deposition by introducing two female members namely Mohan Dai w/o Mohan Lal and Babli w/o Rajeev @ Bunty. Indisputably, all the eye-witnesses knew both the female members since long being their neighbour. Despite the fact that there was not only delay in lodging the FIR SC No. 54/2011 Page 31 of 85 State Vs. Mohan Lal & others but inordinate unexplained delay in sending its copy to the Illaqua Magistrate, name of both the females members is not figured in the FIR. Even their name is also not figured in the brief facts mentioned in the inquest report. None of the eye-witnesses uttered even a single word in their statement recorded under Section 161 Cr. P.C. Besides all, PW30 in his examination-in-chief candidly admitted that none of the eye-witnesses ever disclosed the name of said females in the alleged incident. In these circumstances, the testimony of eye-witnesses to the extent where they introduced the said females and attempted to implead them by deposing that Mohan Dai and Babli also accompanied the accused persons and they along with other accused dragged the deceased and they caught hold the deceased by hair and Mohan Dai had given the blows of kicks on the face of deceased appears to be the result of afterthought, thus, does not inspire any kind of confidence.
Contentions relating to the non-explanation of injuries on the persons of accused persons:-
32. Learned counsel appearing for the accused persons sagaciously contended that in the alleged incident accused Mohan Lal, Vickey and juvenile Karan sustained injuries. Accused Vickey had sustained injuries on his vital parts of body i.e. face, temporal and scapular region, Juvenile had also sustained injuries by sharp edged weapon whereas accused Mohan Lal had sustained simple blunt injuries but prosecution failed to explain the same. It was contended that even investigating officer did not investigate the matter impartially as he withheld the MLC of accused persons. It was argued that the MLCs were brought on record by the accused persons during their defence evidence. It was further contended that though eye-witnesses described the incident vividly yet SC No. 54/2011 Page 32 of 85 State Vs. Mohan Lal & others none of the witnesses uttered even a single word about the injuries sustained by the accused. None of eye-witnesses deposed that they had caused any injury to any of the accused persons, this shows that eye- witnesses are not trustworthy.
33. On the converse, learned Additional Public Prosecutor for the State refuted the said contentions by arguing that no doubt eye-witnesses failed to explain the injuries on the person of accused persons, but since accused persons only sustained simple injuries, thus the possibility that accused inflicted said injuries themselves can not be ruled out. Further, there is every possibility that accused persons might have sustained injuries when they were attacking the deceased party.
34. First question emerges as to whether accused persons sustained any injury, if yes, what is the nature of injury? Second question arises as to whether prosecution has furnished any explanation for the said injuries? Third question is if prosecution fails to furnish any explanation, what will be its effect?
35. In order to prove that accused Mohan Lal, Vickey and juvenile sustained injuries, accused persons examined three doctors of LHMC as DW1 to DW3. DW1 Dr. Harvinder Kaur deposed that accused Vickey came to the hospital on July 30, 2011 at about 11.40 PM and he was examined by Dr. Sabin Sahu vide MLC No. 29990 and as per MLC, he sustained following injuries:-
(i) (i) laceration wound 2cm x 2cm left upper lip; (ii) laceration wound 1 inch x 1cm left temporal region; (iii) laceration wound 1 inch x 1 cm left shoulder; (iv) laceration wound 1 inch x 1 cm left scapular region and (v) laceration wound 1cm posterior region. She further deposed after SC No. 54/2011 Page 33 of 85 State Vs. Mohan Lal & others examination, patient was referred to Surgery and Dental Department. She further deposed that all injuries were fresh and were caused by sharp edged weapon. MLC is exhibited as Ex. DW1/A and opinion is Ex. DW1/B. As per opinion, he sustained simple injuries caused by sharp edged weapon.
(ii) DW1 further deposed that on July 31, 2011 at about 1:35 AM, patient Mohan Lal was brought to the hospital by constable Sadhu Ram and deposed that he had sustained fresh injury i.e. pain in right hand. He sustained simple blunt fresh injury. His MLC is exhibited as DW1/C.
(iii) DW1 further deposed that patient Karan also came to the hospital on July 30, 2011 at 11:50 PM and he was examined by Dr. Sabin Sahu vide MLC No. 40452 (Ex. DW1/D) and he sustained lacerated wound 1 inch x 1 cm on his right forearm. The injury was caused by sharp edged weapon. After examination, patient was referred to Surgery Department.
(iv) DW2 Dr. Rakesh Sharma deposed that patient Vickey was examined by Dr. Richa in Dental Department and as per record, he sustained following injuries:-
(a) clean lacerated wound over the right angle of mouth and cheek region approximately 1 cm each; (b) clean lacerated wound over left back shoulder region 0.5 cm; (iii) clean lacerated wound over left lateral side of temporal region and the report of Dr. Richa is exhibited as Ex. DW2/A.
(v) DW3 Dr. Rahul had examined the patient Karan in the Surgery Department and he deposed that Karan had sustained clean lacerated wound on his right forearm and his report is Ex. DW3/A. SC No. 54/2011 Page 34 of 85 State Vs. Mohan Lal & others
(iv) During cross-examination of said witnesses, an attempt was made by learned Additional Public Prosecutor to show that either the said injuries were self inflicted or they sustained injuries while they were assaulting the complainant party. DW3 in his cross-examination deposed that it is quite possible that if 4-5 assailants were assaulting someone and during the free fight, one of the assailants may sustain such such type of injury i.e. clean lacerated wound on right forearm. But he clarified that it is not possible to sustain such injury, if free fight is not going on between them and the assailants were beating one person indiscriminately. DW2 deposed that if 4-5 assailants assaulted one unarmed person by iron pipe, then there is very less chance that assailants would sustain any such injury as sustained by accused Vickey. He clarified that if a forcible blow is given by water pipe, such injuries as sustained by Vickey are quite possible. DW1 in her cross-examination clarified that it is not possible for the patients i.e. Mohan Lal, Vickey and Karan to inflict injuries on their body by any weapon, thus stated that the injuries were not self-inflicted. She also admitted that such injuries are quite possible by giving the blows of water pipes.
(v) From the deposition of above doctors, it becomes clear that accused Mohan Lal, Vickey and Karan had sustained injuries; all injuries were fresh and they sustained simple injuries. Accused Vickey sustained injuries by sharp edged weapon. It also becomes clear that the injuries were not self inflicted and it is not possible that they might have sustained injuries while indiscriminately assaulting the complainant party. It is also admitted case of prosecution that accused Mohan Lal and Karan were arrested from the hospital itself.
36. Now turning to the second question as to whether there is any explanation from the prosecution side or not?
SC No. 54/2011 Page 35 of 8537. Prosecution case is based on the deposition of three eye- witnesses namely PW11 Bittoo, PW12 Balvinder and PW13 Chand Rani. PW11 and PW12 are real brothers and PW13 is their mother. As per prosecution version PW11 and PW12 also sustained injuries in the incident. Though PW13 deposed that she also sustained injury, yet her MLC is not on record and it is admitted case of prosecution that she was not taken to hospital either on that day or later on.
(i) I have perused the testimony of all the three eye-witnesses, but none of them uttered even a single word about the injuries caused to the accused Mohan Lal, Vickey and Karan. According to their deposition, they had not caused any injury to any of the assailants. Nor they deposed that any of the assailants had sustained injury while they were trying to save themselves from the attack. Even the investigating officer did not mention in the charge-sheet that the above-said accused persons were found sustaining any injury when they were arrested. Though accused Mohan Lal and Karan were apprehended from LHMC, yet investigating officer did not mention in the charge-sheet that they had sustained any injuries. Nor investigating officer had prepared the body inspection memo, which is otherwise mandatory to be prepared at the time of arrest. Had the investigating officer prepared the body inspection memo, it would have come on record that the above-said accused persons had sustained injuries. But he did not prepare the same without any explanation, thus, PW30 also violated the directions of Hon'ble Apex Court given in D. K. Basu v. State of West Bengal's case. This proves that even investigating officer was not fair and impartial towards the accused persons and attempted to conceal the fact that accused persons had sustained any injuries in this incident.
SC No. 54/2011 Page 36 of 85(ii) From the above, it becomes crystal clear that prosecution failed to furnish any reason whatsoever to explain how the accused persons namely Mohan Lal, Vickey and Karan had sustained injuries.
38. Now coming to the third question; what will be the effect of said non-explanation?
39. Learned defence counsel strongly relied upon the judgment Rehmat v. State of Haryana, (1996) 1 SVLR (CR) SC wherein it was held:-
"Both these witnesses have failed to explain 13 injuries on the appellant, out of which 7 were Lacerated wounds. Dr. Gupta (PW 1) has stated that he found these injuries on the person of the appellant when he examined him on 7th April, 1986 at 4.10 p.m. It is not the case of the prosecution that the appellant had sustained these injuries prior to 7th April, 1986. According to the prosecution case, appellant was apprehended on the spot and he was detained until handed over to the Investigating Officer, Nafe Singh (PW
8). It was incumbent upon the prosecution to place before the Court truthful version of the incident and explain how the appellant sustained these injuries. No explanation whatsoever is coming from the prosecution. It is in these circumstances the defence of the appellant that he was assaulted by Padam Singh (PW 4) with a danda appears to us more probable and consistent with the injuries sustained by him. If prosecution has suppressed the true facts from the Court, then it is difficult to sustain the conviction on such doubtful evidence on record. "
(emphasis supplied)
(i) No doubt the proposition laid down in the above case is quite relevant in the present case; but the facts of the said case were different from the facts of the case in hand. In the said case, prosecution case was that complainant had apprehended the accused after chasing him and SC No. 54/2011 Page 37 of 85 State Vs. Mohan Lal & others while grappling with the accused he had sustained some injuries. Though as per complainant, accused had opened a fire at him, but it appears that same was not hit the complainant. Accused was arrested at the spot and he was found sustained as many as 13 injuries, which prosecution failed to explain. But in the instant case, none of the assailants sustained multiple injuries except accused Vickey. Accused Mohan Lal had sustained only injury in his hand and accused Karan sustained one clean lacerated wound in his forearm. Only accused Vickey had sustained as many as five injuries. It is also admitted fact that in the incident two persons sustained injuries whereas one girl succumbed to her injuries. Thus, to my mind the facts of the case in hand are quite different.
40. In Mano Dutt & Another v/s. State of Uttar Pradesh, (2012) 4 Supreme Court Cases 79, Apex Court dealt with the issue i.e. the effect of non-explanation of injuries and the relevant portion is reproduced as under:-
38: The question, raised before this Court for its consideration, is with respect to the effect of non- explanation of injuries sustained by the accused persons. In this regard, this Court has taken a consistent view that the normal rule is that whenever the accused sustains injury in the same occurrence in which the complainant suffered the injury, the prosecution should explain the injury upon the accused. But, it is not a rule without exception that if the prosecution fails to give explanation, the prosecution case must fail.
39. Before the non-explanation of the injuries on the person of the accused by the prosecution witnesses, may be held to affect the prosecution case, the Court has to be satisfied of the existence of two conditions:
(I) that the injuries on the person of the accused were also of a serious nature; and SC No. 54/2011 Page 38 of 85 State Vs. Mohan Lal & others
(ii) that such injuries must have been caused at the time of occurrence in question.
40. Where the evidence is clear, cogent and creditworthy; and where the court can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are not explained by the prosecution cannot, by itself, be the sole basis to reject the testimony of the prosecution witnesses and consequently, the whole case of prosecution. Reference in this regard can be made to Rajender Singh vs. State of Bihar, Ram Sunder Yadav vs. State of Bihar and Vijayee Singh vs. State of U.P. (emphasis supplied)
41. From the above, it becomes clear that before discarding the prosecution case, Court has to see whether the injuries caused to the accused were serious in nature; whether the injuries were caused in the same incident. In the instant case, defence has succeeded to establish that accused Mohan Lal, Karan and Vickey had sustained injuries in the same incident, but defence failed to establish that the injuries caused to them were serious in nature. Admittedly, accused Karan and Mohan Lal had sustained only one simple injury in their hand. Thus, it can not be said that they had sustained any serious injuries. Though accused Vickey had sustained as many as five injuries but again all injuries are simple in nature. Besides that Court has also to examine as to whether there is clear, cogent and creditworthy evidence on record to prove the culpability of the accused persons and whether Court is able to distinguish the truth from falsehood or not? All these aspects will be dealt with while discussing the testimony of eye-witnesses. Mere fact that eye-witnesses failed to furnish any explanation and the fact that investigating officer did not investigate the matter fairly and impartially is not sufficient to discard the entire prosecution SC No. 54/2011 Page 39 of 85 State Vs. Mohan Lal & others case. But certainly prosecution case is required to be examined minutely.
Contentions relating to inconsistency between the ocular evidence and medical evidence:-
42. Learned defence counsel perspicaciously contended that prosecution has set up a case that deceased was assaulted by the means of knife and iron pipes but surprisingly no injury was found on the dead body of deceased, which could be caused by any sharp edged weapon particularly by knife. It was submitted that PW16 who conducted post- mortem on the dead body specifically deposed that all injuries were caused by the impact with blunt objects/weapons/surfaces (blunt force trauma). It was submitted that during the alleged incident deceased all of sudden rushed to her house and she was followed by her mother Chand Rani and thereafter Chand Rani raised hue and cry that deceased Meena had fallen from stair-case. It was thus contended that deceased had sustained all injuries due to fall from stair-case and this fact is corroborated by the post- mortem report Ex. PW16/B as PW16 admitted that the injuries could be caused by the impact of blunt object including surface. It was submitted since the post-mortem report is inconsistent with the ocular evidence, no reliance can be placed on the prosecution version. In support of his contention, he relied upon the judgment Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727.
43. Per contra, learned Additional Public Prosecutor controverted the said contentions by arguing that none of the witnesses deposed that any injury was caused to the deceased by knife; rather prosecution case is that she was assaulted by the repeated blows of iron pipes and this fact is proved by PW16 by deposing that the injuries were caused by the impact SC No. 54/2011 Page 40 of 85 State Vs. Mohan Lal & others with blunt objects/weapons/surfaces. It was submitted that though during trial, accused persons took the plea that deceased had sustained injuries while falling down from stair-case, but no cogent evidence is placed on record to prove the same.
44. In this regard, the testimony of PW11, PW12 and PW16 are relevant. PW11 and PW12 are the eye-witnesses and they corroborated the testimony of each other. Perusal of their depositions reveal that though they deposed that accused Manish and Vickey were carrying knife but they did not depose that they assaulted the deceased by the means of knife. Rather they deposed that accused Rajeev @ Bunty had given a blow of iron pipe on the face of their sister Meena, consequently, she fell down. They further deposed that during the incident, accused Mohan Lal and Karan had again assaulted their sister Meena by giving the blows of iron pipe, which they were carrying. Thus, it becomes clear that eye-witnesses no where deposed that any injury was caused to the deceased by the means of knife. Their testimony is fully corroborated by the post-mortem report Ex. PW16/B as no injury was found on the dead body, which could be caused by any sharp edged weapon.
(i) Perusal of the post-mortem report Ex. PW16/B reveals that deceased had sustained as many as 25 injuries. Out of these 25 injuries, 17 injuries i.e. injury no. 1 to 17 are either on scalp, face or neck. Remaining injuries are on non-vital parts of body. Following injuries were found on the dead body:-
(1). Lacerated wound 4.6 cm x 0.5 cm x aponeurosis-bone deep, present on right side of the top of scalp in the parietal region; oriented in the front to back direction, the front end of the wound is situated 10 cm SC No. 54/2011 Page 41 of 85 State Vs. Mohan Lal & others from the middle of the right eye brow and is directed backwards and slightly to the right. The edges were irregular and frayed and the margins were contused. On reflection of the scalp extravasated blood was present in the underlying scalp layers and splitting of the pericranium measuring 2 cm x 0.5 cm.
(2). Lacerated wound 2.1 cm x 0.3 cm x aponeurosis-bone deep, present on the right side of the top of scalp in the parietal region; oriented in the front to back direction, the front end of the wound is situated 8 cm from the middle of right eye brow and 2 cm inner and 1 cm below the front end of injury No. 1. It is directed backwards and slightly to the right. The edges were irregular and frayed and the margins were contused. On reflection of the scalp extravasated blood was present in the underlying scalp layers and splitting of the pericranium measuring 1.5 cm x 0.7 cm.
(3). Lacerated wound 2.3 cm x 0.7 cm x bone deep, present on the face at the junction of the nose and forehead just below the glabella.
The edges were irregular and frayed and the margins were contused irregular tissue bridges were present in the wound. Fragmented pieces of fractured bone and cartilage were present in the bed of the wound. There is formation of a pocket in the subcutaneous plane with a radius of 1 cm - 1.5 cm.
(4). Contusion, reddish brown in colour, 3 cm x 2 cm present over the right side of the forehead just above the outer half of the right eyebrow.
(5). Contusion, reddish in colour, 4.0 cm x 3.0 cm present on the bridge of nose with fracture of underlying nasal bone.
SC No. 54/2011 Page 42 of 85State Vs. Mohan Lal & others (6). Swelling in an area of 10 cm x 9 cm with Contusion, reddish in colour, 6 cm x 7 cm present, on the right cheek. Extravasated blood was present in the underlying soft tissues.
(7). Contusion, reddish in colour, 2.5 cm x 2.0 cm present over the right cheek prominence 1.5 cm below the right eye. Extravasated blood was present in the underlying soft tissues.
(8). Contusion, reddish in colour, 2.5 cm x 2.0 cm present over the right cheek prominence 1.5 cm outer to the right eye. Extravasated blood present in the underlying soft tissues.
(9). Split lacerated wound, 0.5 cm x 0.5 cm of the upper lip, just to the left of the mid line with corresponding mucosal laceration 1.5 cm x 0.5 cm x 0.3 cm, with the intervening soft tissues pulverized.
(10). Split lacerated wound, 1.0 cm x 0.6 cm x 0.3 cm, of the upper lip, 1 cm to the right of mid line with corresponding mucosal laceration 1.5 cm x 0.5 cm x 0.3 cm, with the intervening soft tissues pulverized.
(11). Contusion, reddish in colour, 1.5 cm x 1.0 cm present on the mucosal surface of the middle of upper lip.
(12). Contusion, reddish in colour, 3.0 cm x 2.0 cm present on the mucosal surface of the middle of lower lip, with linear mucosal laceration 2.5 cm long corresponding to the incisal edges of the lower jaw incisors.
SC No. 54/2011 Page 43 of 85State Vs. Mohan Lal & others (13). Contusion, reddish in colour, 2.5 cm x 2.0 cm present over the left cheek 5 cm below the left eye, and 1 cm outer to the left angle of the mouth.
(14). Contusion, reddish brown in colour, 3 cm x 2 cm present on the middle and left side of chin. Extravasated blood was present in the underlying soft tissues.
(15). Contusion, reddish brown in colour 1.5 cm x 1.0 cm present on the right side of the chin, overlying the middle of right jaw bone. Extravasated blood was present in the underlying soft tissues.
(16). Contused abrasion, reddish brown in colour, 0.8 cm x 1.0 cm, elliptical in shape present over the left side of neck 2 cm below and 1 cm outer to the angle of the left law. Extravasated blood present in the underlying soft tissues.
(17). Abrasion, reddish in colour, 4.0 cm x 2.0 cm, present over the right side of the neck 4.5 cm below the angle of the right jaw, going obliquely downward.
(18). Contusion, reddish in colour, 6 cm x 4 cm, present over the top of right shoulder on the external aspect, lying in the front to back direction. Extravasated blood was present in the underlying muscles.
(19). Contusion, reddish in colour 5 cm x 3 cm present on the back of right arm at the junction of arm and axilla.
(20). Contusion, reddish blue in colour, 11 cm x 9 cm present on SC No. 54/2011 Page 44 of 85 State Vs. Mohan Lal & others the front of middle 1/3rd of left arm, 12 cm below the acromion. Extravasated blood was present in the underlying muscles.
(21). Abrasion, reddish in colour 0.5cm x 0.5 cm present on the back of left hand 2 cm above the knuckle of middle finger.
(22). Contusion, reddish in colour 12 cm x 5 cm present on the back of middle 1/3rd right arm. Extravasated blood was present in the underlying soft tissues.
(23). Abrasion two in number, reddish in colour, 0.5 cm x 0.3 cm present over the outer aspect of back right elbow, just below the lateral epicondyle, with a gap of 0.7 cm between them.
(24). Abrasion, reddish in colour 1.5 cm x 1.0 cm present on the outer aspect of the left hip overlying the iliac bone.
(25). Contusion reddish in colour 9 cm x 9 cm present on the front of upper 1/3rd of right thigh. Extravasated blood was present in the underlying muscles.
(ii) During the cross-examination of eye-witnesses, a suggestion was put to the witnesses that Meena rushed to her house and Chand Rani followed her and thereafter Chand Rani screamed that Meena had fallen down from stair-case and became unconscious. But the said suggestion was denied by the eye-witnesses. On the basis of said suggestion, general questions were put to the PW16 Dr. Sreenivas M. as to whether contusion, bruises and lacerated wounds are possible by just simple fall on a hard SC No. 54/2011 Page 45 of 85 State Vs. Mohan Lal & others surface and the same was admitted by the witness. But no question was asked whether in the instant case deceased could have sustained injuries by simple fall on hard surface or by falling from stair-case. Even no question was asked as to whether 25 injuries are possible by just simple fall from stairs. During the cross-examination of PW16, a specific question was put on what basis you opined that injuries were consistent being produced in assault. To this, PW16 deposed that since there was number of wounds present on the head and face of the deceased; there were lacerated wounds on the scalp, which could be produced by the impact of heavy blunt object/weapon. This proves that the injuries found on the dead body were caused by the impact of heavy blunt object/weapon and not by simple fall as contended by learned defence counsel.
(iii) During trial, accused persons failed to adduce any other cogent evidence to prove even prima-facie that any person could sustain as many as 25 injuries by just simple fall from stairs. Further, it is just unbelievable that any person would sustain as many as 17 injuries on his/her front portion of face including scalp. It is also highly improbable that such person would sustain injury on his/her neck as sustained by deceased. Further, it is highly improbable that if a person sustains as many as 25 injuries by simple fall from stairs, he would not sustain any injury on his/her back, on the back portion of head, knee, shin etc.
(iv) In view of the foregoing discussion, I do not find any substance in the contention that deceased had sustained injuries while falling down from stairs.
45. Now coming to the judgment Ram Narain v. State of Punjab (supra) relied upon by the learned defence counsel wherein it was held:-
SC No. 54/2011 Page 46 of 85State Vs. Mohan Lal & others "It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses, the High Court does not appear to have considered this important aspect but readily accepted the prosecution case without noticing that the evidence of the eye-witnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the Doctor's evidence with a view to support an incorrect case."
(i) I have perused the said judgment carefully. Perusal of judgment reveals that the facts of the said case were totally different from the facts of the case in hand. Moreover, as already discussed that there is no inconsistency between the version of eye-witnesses and the post-
mortem report, thus, there is no reason to disbelieve the prosecution version.
Whether defence version is probable:
46. Learned defence counsel vigorously contended that though incident had taken place, but the same had not taken place in the manner as projected by prosecution. It was contended that accused Mohan Lal was strolling in the gali after taking dinner. At that time, complainant party i.e. PW11 to PW13 dragged him inside their house and gave beating to him but somehow he could get rid of himself and rushed towards his house while crying but he was chased by the complainant party. It was submitted that in the meantime, deceased Meena also came there and torn her clothes. It was further submitted that PW11 was carrying knife while PW13 was having an iron pipe. It was further urged that complainant party apprehended the accused Mohan Lal in the gali and thereafter Mohan Lal SC No. 54/2011 Page 47 of 85 State Vs. Mohan Lal & others was assaulted by the means of iron pipe. In the meantime, PW11 assaulted the accused Mohan Lal by the means of a knife and in order to save himself he bent down and the said blow hit to PW12 Balvinder. In the meantime after hearing noise, accused Vickey came out from his house and tried to save his father Mohan Lal, but Balvinder caught hold him and PW11 assaulted him by the means of knife and stabbed him. It was further submitted that in the meantime juvenile Karan also reached there. After seeing him, Meena picked up a knife and handed over to PW11 to assault Karan and when Karan tried to stop Meena from handing over the knife to PW11, Meena had given a blow of knife to Karan. It was further submitted that after seeing the life of his grandfather Mohan Lal and uncle Vickey in danger, Karan snatched the iron pipe from Chand Rani and assaulted Meena, due to which knife fell down from the hands of Meena. It was submitted that at that time Meena rushed to her house and she was followed by her mother Chand Rani and thereafter Chand Rani screamed that Meena had fallen down from stair-case and became unconscious. It was submitted that when Meena succumbed to her injuries, which she sustained by falling from stair-case, complainant party concocted a false story by twisting the facts due to previous enmity between the parties and due to that reason they implicated all male members of the family knowingly well accused Rajeev @ Bunty and Manish were not present there and even during trial they made an abrupt attempt to implicate female members i.e. Mohan Dai and Babli. It was submitted whatever injuries were caused by juvenile Karan, same were caused in order to save the life of his grandfather and uncle. It was submitted that in order to exercise right of private defence only apprehension of danger is sufficient. In support of his contention, he relied upon the judgement Darshan Singh v. State of Punjab, AIR 2010 SC 1212. Learned counsel further contended that defence witnesses are as reliable as prosecution witnesses and their SC No. 54/2011 Page 48 of 85 State Vs. Mohan Lal & others testimony can not be discarded mere fact they were produced by the accused. In support of his contention, reliance was placed on the judgement Dudh Nath Pandey v. State of U.P., AIR 1981 SC 911.
47. On the converse, learned Additional Public Prosecutor refuted the said contentions by arguing that during trial accused persons only examined one witness regarding the incident i.e. DW4 Pooja daughter of accused Mohan Lal and she in her cross-examination admitted that the distance between her matrimonial house and parents' house can be covered on foot within 15-20 minutes. It was submitted that in order to show her presence at the spot, she deposed that she made a call to police control room from their tenant Anita. But during trial, defence did not deem it appropriate to bring Anita in the witness box. It was further submitted that during the cross-examination of eye-witnesses, learned defence counsel put the defence in form of suggestions but all the suggestions were categorically denied by the eye-witnesses. It was, thus contended that no reliance can be placed on the defence version.
48. Pivotal question emerges for adjudication as to whether defence version is probable?
(i) As per the defence put forth by the accused during the cross- examination of eye-witnesses, accused Mohan Lal was dragged by the complainant party into their house while he was strolling in the gali after taking dinner and thereafter he was beaten. But somehow accused Mohan Lal got rid of himself and ran towards his house but he was chased by the complainant party and he was again apprehended by the complainant party in the gali. At that time, he was also beaten by an iron pipe. Thus, as per defence version, accused firstly dragged by the complainant party from SC No. 54/2011 Page 49 of 85 State Vs. Mohan Lal & others gali to their house; then he was beaten and again he was assaulted by iron pipe in the gali. If there is any truth in the substance of defence version, accused Mohan Lal would have certainly sustained multiple injuries on his body. But it is not so and this fact is established from his MLC.
(ii) MLC of accused Mohan Lal is exhibited as Ex. DW1/C and same is proved by DW1 Dr. Harvinder Kaur. She in her examination-in- chief deposed that accused Mohan Lal had sustained fresh injury i.e. pain on his right hand. He did not sustain any lacerated wound or contusion or scratch. If he was beaten firstly inside the house and thereafter he was beaten in the gali by the means of an iron pipe, he should have sustained some more injuries than he sustained. This itself creates a serious doubt over the defence version.
(iii) Further, as per defence version, PW12 Balvinder sustained knife injury when PW11 was assaulting accused Mohan Lal and in order to save himself, he bent down and the said blow hit to PW12. According to defence no other injury was caused to PW12.
(iv) MLC of PW12 is Ex. PW4/A and he had sustained as many as four injuries (i) lacerated wound on forehead right side 5cm x 0.5cm; (ii) lacerated wound on left eyebrow 2cm x 1cm; (iii) lacerated wound on left eye-lid 1cm x 0.5cm and sharp cut wound on left fore-arm exterior aspect 4 x 1cm and 2 x 1cm. This proves that PW12 had not sustained only one injury as stated by defence but he sustained more than that and for which no explanation has been furnished. This again casts doubt over the defence version.
(v) According to the defence, PW11 Bittoo assaulted accused SC No. 54/2011 Page 50 of 85 State Vs. Mohan Lal & others Vickey by the means of a knife when he came to rescue accused Mohan Lal. As per defence version, none of the accused caused injury to PW11, but as per his MLC Ex. PW14/B, Bittoo sustained as many as four injuries i.e. (i) sharp cut wound 10 x 0.5cm on right parietal region; (ii) sharp cut wound 4 x 0.5 cm on right parietal region; (iii) sharp cut wound 5 x 0.5 cm on left parietal region; and (iv) sharp cut wound 0.5cm x 0.2 cm on left parietal region. Since no explanation furnished to the injuries caused to PW11 Bittoo, it further raises suspicion over the defence version.
(vi) As per defence version, in order to prevent deceased Meena from passing knife to PW11, Karan snatched iron pipe from Chand Rani and gave blow to Meena, consequently, knife fell down from her hand. Thereafter, Meena rushed back to her house and thereafter she fell down from stairs. But this version is not corroborated by the medical evidence. As per post-mortem report Meena had sustained as many as 25 injuries. Out of these 25 injuries, 17 injuries were sustained on the front portion of face, scalp and neck. As already discussed, it is highly unbelievable that such injuries could be caused by just falling from stair-case. This further indicates that defence version is improbable.
49. No doubt, accused persons are not supposed to prove their version beyond doubt as prosecution is supposed to prove. But once accused persons took a plea that the alleged incident had taken place in a particular manner, onus is upon the accused to prove though prima-facie that the alleged incident might have taken place in that particular manner. But in the instant case, defence version is improbable and accused persons failed to adduce any cogent evidence to prove their version. Admittedly, accused persons did not examine any person other than DW4, who is the daughter of accused Mohan Lal, thus she had every interest in SC No. 54/2011 Page 51 of 85 State Vs. Mohan Lal & others the accused person. Despite the fact that the alleged incident had taken place in the gali, accused persons did not deem it appropriate to examine any resident of the gali. In these circumstances and coupled with the fact that defence version is not corroborated by medical evidence, I am of the view no reliance can be placed on the uncorroborated deposition of DW4.
50. I have gone through the judgement Darshan Singh v. State of Punjab (supra) cited by learned defence counsel wherein it was held;_ "It is a settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait-jacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not?"
51. No body can dispute about the above settled proposition of law. But in the instant case, version put forth by the accused persons does not appear probable, reliable or trustworthy as the same is contrary to the medical evidence and documentary evidence available on record.
52. No doubt the defence version is improbable, unreliable and does not appears to be trustworthy but prosecution case is also replete of drawbacks, which have already been discussed and summarized as under:-
(i) There is not only delay in lodging the FIR, but there is also SC No. 54/2011 Page 52 of 85 State Vs. Mohan Lal & others inordinate unexplained delay in sending its copy to the Illaqua Magistrate.
(ii) Despite the delay in FIR and delay in sending its copy to the Illaqua Magistrate, there is inconsistency in the FIR and brief facts mentioned in the inquest report.
(iii) Name of two accused namely Vickey and Manish are missing from the list of assailants in the said brief facts.
(iv) Though accused persons known to the complainant since long, yet injured persons did not disclose the name of assailants either to the PCR official or to the doctor despite the fact that they were fully conscious and oriented.
(v) There is no explanation whatsoever either from the eye-
witnesses or prosecution to explain the circumstances under which accused persons sustained injuries.
(v) Investigation was unfair as investigating officer failed to prepare the body inspection memo to conceal the injuries sustained by the accused persons. No investigation was conducted about the injuries of accused despite the fact that accused Mohan Lal and Karan were apprehended from the hospital itself.
(vi) Eye-witnesses made an attempt to implead female members of the accused family namely Mohan Dai and Babli despite the fact they did not utter even a single word against them during investigation.
(vii) Both parties have had inimical relations with each other.
SC No. 54/2011 Page 53 of 8553. Despite all these odds, Court has to perform its duty. Court is also not oblivious that the principle of falus in uno falus in omnibus is not applicable in the criminal matters, thus court has to separate grain from chaff; truth from falsehood. Considering all above drawbacks in prosecution case and the fact that defence version is also improbable, Court is proceeding to analysis the evidence led by the prosecution.
Contentions relating to role of accused Rajeev @ Bunty & Manish:-
54. Learned counsel appearing for accused vigorously contended that accused Rajeev @ Bunty and Manish were not present at the spot; they have been falsely implicated being the son of Mohan Lal. It was submitted that due to that reason, neither of them had sustained any injury. Had they been present at the spot, they would have also sustained some injuries as sustained by other accused persons. It was submitted that since three accused namely, Mohan Lal, Vickey and Karan had sustained injury and eye-witnesses did not utter even a single word about their injuries, it clearly shows that eye-witnesses have not narrated true facts before the court and they have concealed material facts from the Court. It was submitted that since complainant party had inimical relations with the accused persons, they impleaded all the male members of the family in a belated FIR. Though they had an opportunity to disclose the name of assailants to the PCR officials as well as doctors, but they did not divulge the same with a motive as they intended to implead entire family. It was further submitted that even the facts narrated in the FIR do not co-relate with the autopsy report as according to the FIR only one blow was given whereas as per autopsy report she had sustained as many as 25 injuries. It was further submitted that both the accused surrendered before the Court SC No. 54/2011 Page 54 of 85 State Vs. Mohan Lal & others and at the time of arrest they disclosed that they were not present at the spot but when accused were taken on police remand investigating officer manipulated their disclosure statements and showed that an iron pipe was recovered at the instance of accused Rajeev @ Bunty. Though as per prosecution version said iron pipe had blood stained marks, yet prosecution failed to connect the blood stains with any of the victims. It was argued that since in the incident accused persons also sustained injury, thus it can not be ruled out that the blood may be of any of the accused. It was further contended that the alleged recovery was shown to be affected from the house, it is highly unbelievable that accused would keep the blood stained pipe in his house knowingly well that police was searching him. It was further contended that it is also unreliable that police would not have searched the house of accused during the said period. It was further argued that even no independent witness was asked to join the proceedings; even injured persons were not called at the time of alleged recovery despite the fact that they were residing just opposite to the house of accused persons.
55. On the converse, learned Additional Public Prosecutor for the State refuted the said contentions by arguing that since all the eye- witnesses categorically deposed against both the accused also, thus there is no reason to disbelieve their testimony. It was further contended that no doubt eye-witnesses did not disclose the name of accused persons at the earliest, but this can not be a ground to disbelieve the testimony of witnesses. It was further submitted that accused persons did not divulge true facts in their first disclosure statements as they were tutored by their counsel but when they were examined in detail in the police station, they disclosed true facts and admitted their involvement in the incident. It was further contended that pursuant to the disclosure statement made by SC No. 54/2011 Page 55 of 85 State Vs. Mohan Lal & others accused Rajeev @ Bunty an iron-pipe used in the commission of offence was recovered at his pointing out. It was further contended that the deficiencies pointed out by learned defence counsel in the prosecution case are not sufficient to discard the prosecution case.
56. To prove the culpability of accused Rajeev @ Bunty and Manish, prosecution has relied upon the testimony of PW11 to PW13 and the fact that blood stained iron-pipe was recovered at the pointing out of accused Rajeev @ Bunty. Though accused Manish disclosed before the police that he could get recovered the knife, but no knife was found at the place disclosed by him.
57. Before adverting to the testimony of eye-witnesses, I prefer to refer to the circumstances under which the accused persons made the disclosure statements.
(i) Indisputably, the alleged incident had taken place on July 30, 2011. Both the accused surrendered before the Court of learned Metropolitan Magistrate on August 4, 2011. Admittedly, house of accused persons is located just opposite to the house of complainant. Though one can say that since both the accused were absconding after the incident, it reflects their guilt intention, but it is not always true. In the instant case, police had arrested the accused Mohan Lal and Karan from LHMC and accused Vickey was arrested from his house. This shows that neither accused Mohan Lal & Karan nor Vickey attempted to abscond. Does it mean that they are innocent? Admittedly, the name of both the accused persons surfaced first time in the FIR, which is quite belated as there is inordinate unexplained delay in sending its copy to the learned Illaqua Magistrate. As per record, copy of FIR was received to the learned Illaqua SC No. 54/2011 Page 56 of 85 State Vs. Mohan Lal & others Magistrate at about 6:20 PM on July 31, 2011. There is no evidence on record to show that both the accused were not at their home prior to registration of FIR. In these circumstances, the possibility that after knowing that they have also been falsely implicated in the incident and police had already apprehended other male members, they might have decided to go underground can not be ruled out. In the given circumstances, mere fact that they avoided their arrest is not sufficient to prove their culpability.
(ii) Admittedly, at the time of their arrest accused Rajeev @ Bunty and Manish did not disclose anything in their respective disclosure statements, which are exhibited as Ex. PW30/A and Ex. PW30/B. Accordingly, they were taken on police remand and brought to the police station. PW30 in his cross-examination deposed that he made an effort to join public persons at the time of interrogation of both the accused persons but none came forward. It is not clear what does he want to convey? Does he want to say that he sent someone from the police station to call public person at the time of interrogating the accused persons? Is it believable? As already discussed that the house of complainant party was located in front of the house of accused persons. Despite that even no effort was made to call anyone from the house of complainant side either at the time of interrogating the accused persons or recovery? Since, accused persons in their first statement, which was made in the court premises, did not divulge any incriminating fact to the police in their respective statement, investigating officer was supposed to take extra precaution at the time of recording their second disclosure statement. Even he did not deem it appropriate to record their statement in question and answer form. Nor he deemed it appropriate to audio-graph or video-graph their statements. In these circumstances, it will not be safe to place any reliance on any SC No. 54/2011 Page 57 of 85 State Vs. Mohan Lal & others incriminating information divulged in their subsequent disclosure statements Ex. PW27/E and Ex. PW27/F.
58. Now coming to the issue as to whether prosecution has succeeded to connect the recovered pipe with the accused Rajeev @ Bunty and with the incident in question?
(i) It is admitted case of prosecution that accused Rajeev @ Bunty got recovered an iron-pipe from the roof of his house, which was lying near the water tank and it was found having blood stains. Admittedly, police went to the house of accused Rajeev @ Bunty to recover the iron- pipe pursuant to his disclosure statement. But surprisingly no effort was made either to call crime team or any independent witness at the time of recovery. Since, the alleged pipe was used in the commission of a heinous crime and the pipe was to be connected with the accused as well as to the offence, it was the duty of investigating officer to call the crime team to make effort to lift chance prints from the pipe, if any, or to take steps to preserve blood stains. But no such step was taken. As already stated that the house of complainant was located just opposite to the house of accused Rajeev @ Bunty, but no effort was made even to call anyone from the house of complainant. Further, it is admitted case of prosecution that the alleged incident had taken place on July 30, 2011 and both the above accused were arrested on August 4, 2011. It is also admitted case of prosecution that even prior to August 4, 2011, police party had visited the house of accused persons at the time of recovery at the pointing out of accused Vickey, Karan and Mohan Lal. Is it believable that police would not have searched the house thoroughly at that time? Further it is also admitted case of prosecution that accused Rajeev @ Bunty was wanted by the police. If it was so, it is highly improbable that accused person would SC No. 54/2011 Page 58 of 85 State Vs. Mohan Lal & others keep the weapon of offence in his house knowingly well that same could be used by the police against him.
(ii) PW11 in his examination-in-chief deposed that an iron-pipe which was used by the accused persons in the commission of offence was still lying in his house and he asked the investigating officer to seize the same, but investigating officer did not seize the same. If there is any substance in his deposition, it means that there was every possibility to plant such iron pipe upon anyone.
(iii) Indisputably, the alleged recovered pipe is an ordinarily pipe, which can be easily found in any house. It is also admitted case of prosecution that more than one iron pipe were used in the commission of alleged crime. No doubt PW16 in his report Ex. PW16/D opined that the injuries found on the dead body of deceased were possible by the means of said pipe (Ex. P-3) but it is also pertinent to state that he also opined that said injuries could also be caused by any other weapon similar to Ex. P-3. It proves that on the basis of opinion of PW16, it can not be said conclusively that the injuries found on the dead body of deceased were caused only by Ex. P-3. His report only proves that said injuries could be caused by Ex. P-3 or any other iron-pipe similar to it, thus, the possibility that the injuries were caused by any other pipe, which was used in the commission of crime can not be ruled out.
(iv) Admittedly, during the examination of pipe Ex. P-3 in FSL, human blood was detected on the said pipe. FSL reports are exhibited Ex. PW28/A and Ex. PW28/B and in the said reports, iron pipe is referred to exhibit 12. But FSL failed to give any opinion about the group of the blood as no reaction was found in the blood detected on the said pipe. It is SC No. 54/2011 Page 59 of 85 State Vs. Mohan Lal & others admitted case of prosecution that in the incident, three persons from the complainant's side sustained injuries i.e. PW11, PW12 and deceased. During trial, accused persons also proved that in the incident three accused persons also sustained injuries i.e. Mohan Lal, Vickey and Karan. Thus, the possibility that the blood detected on the said pipe may belong to any of the said accused persons can not be ruled out. In these circumstances, the presence of blood on the said pipe is not helpful to the prosecution either to connect the pipe with the incident or with the accused Rajeev @ Bunty.
(v) In the light of above discussion, I am of the opinion that to prove the culpability of accused Rajeev @ Bunty, the alleged recovery is not helpful to the prosecution in any manner.
59. Now coming to the next question as to whether any reliance can be placed on the alleged disclosure statement of accused Manish?
(i) Admittedly, pursuant to the alleged disclosure statement Ex. 27/E, no recovery was effected. By virtue of said disclosure statement, investigating officer intended to prove the recovery of knife, if it could have been recovered, under Section 27 of the Evidence Act. Since, no recovery was effected pursuant to the distinct information divulged in the said disclosure statement, the said alleged information is not helpful to the prosecution to prove the culpability of the accused.
(ii) Admittedly, the remaining portion of Ex. PW27/E is hit by section 25 of Evidence Act, thus not admissible in the eyes of law.
60. From the above, it becomes clear that there is no SC No. 54/2011 Page 60 of 85 State Vs. Mohan Lal & others corroborative evidence on record against accused Rajeev @ Bunty and Manish except the bald deposition of PW11 to PW13. Now, question arises as to whether it will be safe to rely upon their uncorroborated testimonies?
(i) As already discussed that all the eye-witnesses knew the accused persons previously as the house of complainant is located just in front of house of accused persons. It has also been discussed that PW11 and PW12 were fully conscious after the incident and their MLC prove that they sustained only simple injuries by sharp weapon. Despite that none of the eye-witnesses disclosed the name of accused persons either at the time of giving information to the police control room; to the PCR officials; to the doctors. Though they furnished an explanation for not disclosing the name of assailants by stating that since none of them asked to disclose the name of assailants, they did not disclose the same, but said explanation is seldom to digest. How the police official sitting in the control room would know that complainant knew the name of assailants? He is supposed to record the information whatever is conveyed to him? Even prosecution failed to produce any document on record to prove that any of the eye- witnesses had informed the police control room. No doubt, PW11 in his testimony deposed that he made three calls; two calls from land-line phone and one call from his mobile phone. But prosecution failed to produce any such call on record. Admittedly, he did not inform the name of assailants to the police control room. Similarly, PCR official (PW21) categorically deposed that though he asked the name of assailants from the injured persons, but they did not disclose their name, they only informed that they had a quarrel with their neighbour residing opposite to their house. Similarly, they also did not disclose the name of assailants to doctors. Indisputably, PW29 is the brother of PW11 and PW12 and as per their MLC, PW29 was in the hospital when they were brought to the hospital.
SC No. 54/2011 Page 61 of 85State Vs. Mohan Lal & others Rather in their MLC it is recited that PW29 also accompanied the injured and HC Rajender. Since prosecution denied that PW29 accompanied them from the spot to the hospital. It is quite probable that PW29 might be reached the hospital on receipt of information as he was residing at Rajender Nagar whereas complainant party was residing at Khalsa Nagar, Karol Bagh and both places are not too far. This proposition appears more plausible as PW29 in his cross-examination admitted that he received the information of the incident on July 30, 2011 at about between 11:00 PM to 11:30 PM when PW11 informed him on phone. But surprisingly, he also deposed that PW11 did not even inform the name of assailants to him also. Whether PW11 was expecting that PW29 would ask him to disclose the name of assailants? In these circumstances, the possibility that eye- witnesses did not inform the name of assailants as they wanted to buy time to make out a story to frame as many persons as they wanted can not be ruled out.
(ii) Besides their above conduct, there is unexplained inordinate delay in lodging the FIR, which shows that complainant party had more than sufficient time to make out a story as they wanted. In addition to that, complainant party had inimical relations with the accused persons, this further proves that eye-witnesses had ample motive to implead even those family members of accused who were not present there at the time of incident. This fact further gets strength from the fact that during deposition all the eye-witnesses made an abrupt attempt to implead even female members of the accused family knowingly well that they did not utter even a single word against them during investigation and this fact is candidly admitted by PW30 in his deposition.
(iii) Even the name of accused Manish is also not recited in the SC No. 54/2011 Page 62 of 85 State Vs. Mohan Lal & others brief facts (Ex. PW16/A) mentioned in the inquest report, which was prepared on August 1, 2011. This further strengthen the defence version that complainant party had implicated the accused Manish just to implead all male members of the accused Mohan Lal.
(iv) From the autopsy report of deceased and MLC of PW11 & PW12 along with the MLC of accused persons, it can safely be culled out that a big fight had taken place in which both parties had used weapon of offence particularly iron-pipes and sharp edged weapon. In the incident, all persons except Rajeev @ Bunty and Manish sustained injuries. It is improbable that when all persons sustained injuries, these two accused would not have sustained any injury. Absence of injuries on their body prima-facie indicate that either they were not present at the spot or they did not participate in the alleged incident. The possibility that they might have been impleaded in the incident being the family members of accused Mohan Lal and the fact that they had inimical relations with complainant party can not be ruled out.
(v) Though in the incident as many as three accused sustained injuries, yet none of the eye-witnesses uttered even a single word how they sustained the injuries. Even none of the eye-witnesses attempted to say that they caused injuries in order to defend themselves or to protect their sister (since deceased). This itself shows that the eye-witnesses are not so truthful as they should have been.
(vi) Admittedly, one single circumstance will not be sufficient to discard the deposition of eye-witnesses, but the cumulative effect of above lapses are sufficient enough to raise a reasonable doubt over the deposition of eye-witnesses wherein they attributed the role to accused SC No. 54/2011 Page 63 of 85 State Vs. Mohan Lal & others Rajeev @ Bunty and Manish.
61. Mulling over the ongoing discussion, I am of the considered opinion that it will not be safe to hold the accused Rajeev @ Bunty and Manish guilty on the bald statement of PW11 to PW13, thus, in my opinion both the accused are entitled for benefit of doubt.
About the culpability of other accused:-
62. At the outset, it is pertinent to state that since accused Karan being juvenile is facing trial before the learned Juvenile Justice Board, this Court is not supposed to give any finding on the culpability of juvenile Karan.
63. As already discussed, the incident is not disputed by the accused persons in their defence. Rather they took the plea that the incident had not taken place in the manner in which the same has been projected by the prosecution. Their contention is that complainant party was aggressor as they dragged the accused Mohan Lal in their house while he was strolling in the gali after taking dinner where he was beaten. And when accused Mohan Lal got rid of himself from the clutches of complainant party, they chased him and again caught hold him in the gali where he was beaten with iron pipe. It was also submitted that when his son Vickey came there to rescue him from complainant party, he was assaulted by the means of knife. It was further submitted that thereafter juvenile Karan came there and after seeing the life of his grandfather and uncle in danger, he snatched an iron-pipe from Chand Rani and assaulted the deceased to prevent her from handing over a knife to her brother Bittoo (PW11); and thereafter deceased rushed to her house, who was SC No. 54/2011 Page 64 of 85 State Vs. Mohan Lal & others followed by her mother and after sometime, her mother raised alarm that deceased had fallen from stair-case. It has already been held that the defence version is not probable, thus does not inspire any confidence.
64. Since, neither the incident is disputed by the accused persons nor presence of three accused namely Mohan Lal, Vickey and Karan is disputed, thus it can safely be culled out beyond reasonable doubt that at least these three accused persons were present at the time of incident and they participated in the quarrel. Now question arises as to whether there is any corroborative piece of evidence to prove that accused persons were aggressors as alleged by the prosecution or not?
65. PW30 in his examination-in-chief deposed that he had inspected the place of occurrence and seized certain items from the spot. He further deposed that he had also noticed blood stains in the house of complainant and seized a piece of blood stained ply of table, piece of blood stained bed sheet, blood stained shirt and blood stained sofa cover. All these items were seized from inside the house of complainant. His testimony to that extent is not controverted during cross-examination. It means that it is not disputed by the accused persons that the above blood stained exhibits were not lifted by the investigating officer from the house of complainant.
(i) It is also undisputed fact that place of occurrence was got photographed during investigation and positive photographs are exhibited as Ex. PW2/1 to Ex. PW2/6. PW2 is the photographer and he corroborated the testimony of PW30 that blood stains were also found in the house of complainant. Even perusal of photographs reveals that blood stains were found in the house of complainant. It is pertinent to state that there is no SC No. 54/2011 Page 65 of 85 State Vs. Mohan Lal & others evidence to disprove the fact that the photographs do not belong to the house of complainant.
(ii) During investigation, above said exhibits were also sent to the FSL. During examination, piece of table ply having blood stains and piece of bed sheet having blood stains were given exhibit number Ex.4 and Ex.7 respectively whereas blood stained shirt and sofa cover were given Ex. 8 and Ex. 9 respectively. During examination, vide report Ex. PW28/A, blood was detected on the said items. During serological examination, it was found that blood detected on the said items was of human. On the exhibit 9 blood detected thereon was of group 'B'. Except on exhibit 9, grouping of blood could not be ascertained due to non-reaction. The serological report is exhibited as Ex. PW28/B. It is also undisputed fact blood stained shirt of injured Balvinder was seized vide memo Ex. PW22/B and same was also sent to FSL for examination. During examination, said shirt was exhibited as Ex. 1. As per serological report Ex. PW28/B, blood found on his shirt was of human and is belonged to group 'B'. It is also undisputed fact that in the incident, Balvinder had sustained injury. It means that blood found on his shirt was of injured Balvinder. It further proves that blood group of Balvinder is 'B'. It further proves that blood found on the sofa cover belonged to Balvinder.
(iii) No doubt grouping of blood on exhibit 4, 7 and 8 could not be ascertained. But it was ascertained that the blood found thereupon was of human. As per defence version, accused Mohan Lal was dragged into the house and he was beaten. But from his MLC Ex. DW1/C it is proved that he had not sustained any such injury from he had any bleeding because as per MLC he had only pain in his right forearm. Thus, blood found in the house of complainant could not be of accused Mohan Lal.
SC No. 54/2011 Page 66 of 85(iv) Presence of human blood on the above said items in the house of complainant clearly proves that the part of incident had taken place in the house of complainant party and in the said incident, complainant party had sustained injury.
(v) During investigation, crime team inspected the place of occurrence and crime team lifted four chance prints from the mirror of dressing table from the house of complainant and this fact is recited in the crime team report, which is Ex. PW20/A. This fact is also proved by PW3 ASI Pawan Kumar, Finger Print Experts by deposing that he found chance prints on the mirror of dressing table. PW20 also corroborated the testimony of PW3. Thus, it is proved beyond doubt that four chance prints were found on the mirror of dressing table of complainant.
(vi) After the arrest of accused persons, their finger prints including the finger prints of accused Mohan Lal were taken. PW30 further deposed that the finger prints of accused Mohan Lal are exhibited as Ex. PW30/G. He further deposed that crime team had sent the chance prints lifted from the place of occurrence to Finger Prints Bureau; similarly he had also sent finger prints of all the accused to the Bureau. Accordingly, Bureau examined the chance prints with the finger prints of accused and found that the chances prints tallied with the finger prints of accused Mohan Lal and report in this regard is exhibited as Ex. PW30/J. This further proves that accused Mohan Lal had entered the house of complainant.
(v) Admittedly, it is not the defence version that accused persons entered the house of complainant party to rescue accused Mohan Lal. Further, from the photographs, it is evident that the house hold belongings SC No. 54/2011 Page 67 of 85 State Vs. Mohan Lal & others were scattered, which further corroborates the prosecution version that part of incident had taken place in the house itself. Thus, it is proved beyond doubt that accused persons were aggressors. Had the incident been taken place in the manner depicted by defence, no such blood would have been found in the house of complainant. This corroborates the prosecution version that accused persons entered the house of complainant and assaulted the complainant party.
66. Now, once it is established that the accused persons were aggressors, question arises as to whether accused persons can claim right to private defence?
67. The rule as to the right of private defence has been stated by Russell on Crime (11th Ed., Vol.1, p.491) thus:
"......a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable."
68. Section 100 of Indian Penal Code reads as under:-
"100. When the right of private defence of the body extends to causing death:-
The right of private defence of the body extends under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:SC No. 54/2011 Page 68 of 85
State Vs. Mohan Lal & others First.- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly- ----------------------------------------- Fourthly- --------------------------------------- Fifthly- ------------------------------------------
Sixthly- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."
(i) Section 100 of penal code is defined in Darshan Singh v. State of Punjab (supra) as under:-
"22. Section 100 of the Indian Penal Code justifies the killing of an assailant when apprehension of atrocious crime enumerated in several clauses of the section is shown to exist. First clause of Section 100 applies to cases where there is reasonable apprehension of death while second clause is attracted where a person has a genuine apprehension that his adversary is going to attack him and he reasonably believes that the attack will result in a grievous hurt. In that event he can go the extent of causing the latter's death in the exercise of the right of private defence even though the latter may not have inflicted any blow or injury on him.
23. It is settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused to reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait-jacket formula can be prescribed in this regard. The weapon used the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not?"SC No. 54/2011 Page 69 of 85
State Vs. Mohan Lal & others (emphasis supplied)
(ii) In order to take the plea of right of private defence, accused has to establish that the complainant party was an assailant and they assaulted the accused which causes reasonable apprehension to the accused that any one of the consequence is likely to be followed as recited under Section 100 of Penal Code. But in the instant case, it has already been proved that complainant party was not assailant as the accused persons assaulted the complainant party by committing house trespass. Once, it is established that accused were assailants, they can not claim the right of private defence. On the contrary, complainant party had a right to claim right of private defence to protect their lives and property.
69. In view of the above discussion, I am of the considered opinion that there is no substance in the contention raised by learned defence counsel.
70. As already discussed and admitted by the accused persons that in the said incident, three accused persons namely Mohan Lal, Vickey and Karan had sustained injuries. It has also been established that PWs Bittoo and Balvinder also sustained injuries in the incident. Since the above persons sustained injuries in the incident and there is nothing on record which may suggest that injuries found on any of the above-said persons could be self-inflicted, thus it can safely be culled out that the above-said persons were involved in the incident.
71. From the testimony of PW11 to PW13 it is clear that when accused persons namely Mohan Lal and Vickey along with their co- accused entered their house, accused Mohan Lal was armed with an iron SC No. 54/2011 Page 70 of 85 State Vs. Mohan Lal & others pipe whereas Vickey was armed with a knife and their co-accused was armed with an iron pipe. It is also clear from their testimony that the above- said accused persons entered their house on July 30, 2011 at about 10:30 PM while they were watching T.V. in their house. Since, the accused persons entered their house in night duly armed, it proves that the above- said accused persons entered their house with due preparation and they had common intention i.e. to assault complainant party and to cause the murder of Meena. Once, it is established that they had common intention, the above-said accused shall be liable not only for their individual acts but shall also be liable for the acts of their companions with the aid of Section 34 of Penal Code.
72. Learned counsel appearing for accused vigorously contended that though as per prosecution version accused Vickey was armed with a knife and deceased sustained as many as 25 injuries on her body, yet no injury with sharp edged weapon was found on her dead body during the post-mortem, which proves that accused persons had no intention to kill her. It was submitted that if accused persons had any intention to kill the deceased, accused who was armed with knife would have inflicted at least some injury on the person of deceased, but it is not so.
73. Apparently, the contention appears quite forceful, but it is not so. It is not the prosecution case that deceased had sustained only one or two injuries, but prosecution case is that deceased had sustained as many as 25 injuries. From the post-mortem report it is clear that she had sustained as many as 17 injuries on her face i.e. from scalp to neck portion. It only proves the deadly intention of assailants. Had their intention be only to cause some injuries to the deceased, assailants would not cause SC No. 54/2011 Page 71 of 85 State Vs. Mohan Lal & others as many as 17 injuries on the said vital parts of deceased. Mere fact that no injury was inflicted by the means of knife is not sufficient to hold that assailants had no intention to cause the murder of deceased. Rather, number of injuries found on her face and scalp clearly proves that sole intention of the assailants was to cause her death.
(i) Further, it is also clear from the testimony of eye-witnesses that when assailants entered their house, PW11 to PW13 including deceased were in the house. Since, two male members i.e. PW11 and PW12 were also found in the house, the assailant i.e. Vickey who was armed with knife might be remained busy with them and caused injuries to them by his knife. This fact is proved from the deposition of PW11 and PW12 who categorically deposed that Vickey had also assaulted them by his knife. Their deposition is corroborated by their MLC (Ex. PW14/A and Ex. PW14/B) wherein it is recited that they sustained injuries by sharp edged weapon. Their MLCs are proved by PW14 Dr. Monika. In her cross- examination, she clarified that it is not possible that injured Bittoo could sustain injury due to pelting stones; nor it is feasible that such injuries could be caused by simple fall.
(ii) As accused Vickey also sustained simple injuries on his person by the means of some sharp object, thus it appears that PW11 and PW12 might have also assaulted the accused Vickey. Since, Vickey along with his co-accused was assailant, thus PW11 and PW12 were justified to cause injury on their assailants in the exercise of their right of private defence. No doubt none of the eye-witnesses uttered even a single word about the injuries inflicted to assailants, but this can be inferred from the facts and circumstances of the case. It is pertinent to state that in India it is unfortunate that generally neither prosecution witnesses come forward to SC No. 54/2011 Page 72 of 85 State Vs. Mohan Lal & others say that they cause any injury to the accused persons nor investigating officers make any attempt to seek any explanation from the witnesses about the injuries on the body of accused persons. And in the instant case also, no such attempt was made by the investigating officer despite the fact that accused Vickey had sustained as many as five injuries and other two assailants were apprehended from hospital itself. Considering the fact that prosecution witnesses and investigating officers may not be fully truthful and they might be in the habit of concealing some true facts from the Court, it has been held in catena of decisions that the principle of falus in uno falus in omnibus is not applicable in criminal matters and onus is upon the Court to separate grain from chaff; truth from falsehood as far as possible. In the instant case, from the facts and in the manner incident had taken place, there is every possibility that eye-witnesses did not come forward about the injuries caused to assailants under the impression that it may cause damage to their case. Due to their said conduct and other lapses found in the prosecution case, their testimony is scrutinised minutely and benefit of doubt is given to two of the accused persons. But their lapse about the non-explanation of injury to the assailants is not sufficient to discard their entire deposition. In the facts and circumstances of the case, I am of the opinion that there is every likelihood that assailants had sustained injuries by the hands of eye-witnesses while defending themselves from the deadly assault of assailants.
(iii) As already held that it is impossible to sustain as many as 17 injuries on the face by just simple fall from the stair-case as contended by learned defence counsel, thus, the prosecution version that the deceased was assaulted by the above-said assailants appears more trustworthy and reliable and it is also fully corroborated by the autopsy report.
SC No. 54/2011 Page 73 of 85(iv) From the autopsy report Ex.PW16/B it is established that death was caused due to injuries no. 1 to 3 which were individually and collectively sufficient to cause death in the ordinarily course of nature. Injury no. 1 & 2 were inflicted on the top of scalp in the parietal region whereas injury no. 3 was found on the junction of the nose and forehead just below the glabella. Thus, it is proved that injury no. 1 to 3 were caused on the vital parts of the body. Since, injury no. 1 to 3 were individually and collectively sufficient to cause the death of a person in the ordinarily course of nature, thus it is established that the persons who are liable for the said injuries are liable to be held guilty for the murder as defined under clause 3 of Section 300 of Penal Code.
(v) From the deposition of PW11 and PW12 it is established that two of the assailants i.e. Mohan Lal and Karan were armed with iron pipe. It is also clear from their testimony that the deceased was assaulted repeatedly by the iron pipes. From their deposition, it is also clear that initially deceased was assaulted in the house, thereafter she was dragged out from the house and beaten in the gali. It is further clear from their deposition that while deceased was dragged from the house, PW11 and PW12 were prevented by accused Vickey and he assaulted them by knife so that they could not rescue the deceased, thus there is every possibility that PW11 and PW12 might have not be able to see each and every blow given on the person of deceased, thus mere fact that eye-witnesses failed to state about the approximate number of blows is not sufficient to disbelieve their version particularly when the incident between the parties is not disputed.
(vi) Since, all the assailants had common intention while entering the house of complainant party, thus, the assailants who assaulted the SC No. 54/2011 Page 74 of 85 State Vs. Mohan Lal & others deceased by the means of iron pipe shall also be liable for the acts of assailant who assaulted PW11 and PW12 by knife and similarly the assailant who assaulted both the injured by knife shall also be liable for the acts of his companions who assaulted the deceased by iron pipes. In the present facts and circumstances of the case, prosecution is not supposed to prove which assault was given by which accused. It is sufficient to prove that two of the assailants including Mohan Lal were armed with iron pipe and another assailant i.e. Vickey was armed with knife while they committed house trespass and assaulted the complainant party and thereafter they caused injuries to the deceased and both the eye- witnesses.
(vii) Admittedly, the iron pipe allegedly got recovered by accused Mohan Lal was neither sent to FSL nor to the doctor who conducted post-mortem to seek clarification as to whether injuries found on the dead body could be caused by the recovered iron pipe or not. But to my mind, in the facts and circumstances of the case, said lapse is not fatal to the prosecution case in any manner because in the instant case there is overwhelming evidence that accused Mohan Lal had participated in the incident and from the testimony of eye-witnesses it is also proved that Mohan Lal was one of the assailants and he was armed with an iron pipe. Mere fact that prosecution failed to connect the recovered pipe with the incident is not sufficient to discard the prosecution case.
(viii) Though as per prosecution version, one knife having blood stains was recovered at the pointing out of accused Vickey, yet during examination, FSL failed to ascertain the grouping of blood detected on the said knife. Since, accused Vickey had also sustained multiple injuries in the incident, it was argued that there is every possibility that blood found on SC No. 54/2011 Page 75 of 85 State Vs. Mohan Lal & others the said knife was of accused Vickey. Besides Vickey, PW11 and PW12 also sustained injuries by sharp edged weapon, thus, the blood found on the said knife could either be of Vickey or of either of injured persons. In the absence of any cogent evidence, it is difficult to hold that the blood found on the knife was any of the injured persons. But the said defect is not sufficient to disbelieve the prosecution version because in the instant case participation of accused Vickey is not in dispute and from the deposition of eye-witnesses it is established that he was armed with a knife and it is also established that PW11 and PW12 sustained injuries by sharp edged weapon and it is also established that Vickey was one of the aggressors. Thus, the testimony of both the eye-witnesses is fully corroborated by the medical evidence available on record.
74. In the light of the above discussion, I am of the considered opinion that prosecution has succeeded to bring home the guilt of accused Mohan Lal and Vickey beyond reasonable doubt for the offence punishable under Section 302 read with 34 IPC, thus, I hereby hold them guilty thereunder.
75. Now coming to the issue as to whether there is sufficient evidence to prove the guilt of accused for the offence punishable under Section 354 IPC or not?
76. PW11 and PW12 in their examination-in-chief categorically deposed that accused persons dragged the deceased from the house and brought her in the gali. They further deposed that when they rushed to save her, they saw that accused persons had made her naked by tearing her clothes. It is admitted case of prosecution that deceased along with both the injured was taken to the RML Hospital by PW21 Rajender Singh, but in SC No. 54/2011 Page 76 of 85 State Vs. Mohan Lal & others his deposition, he did not utter even a single word that either the deceased was found naked, semi naked or her clothes were found torn. It is also admitted case of prosecution that deceased was examined in the RML hospital vide MLC Ex. PW15/A. But nothing is mentioned therein that deceased was either naked or her clothes were found torn. Similarly, even PW15 did not depose that deceased was either found naked/semi naked or her clothes were found torn. It is also admitted case of prosecution that inquest was conducted by PW30 and he filled up form no. 25.35 and same is exhibited as Ex. PW30/K. In column no. 7 of the said form, investigating officer is duty bound to mention the condition of the clothes of deceased but in the said column nothing is mentioned. In fact there is nothing in the Ex. PW30/K that the clothes of deceased were found torn. No doubt, PW16 in his report Ex. PW16/B recited that multiple longitudinal tears were found in the pajamas and her panties and brassiere were torn and tattered at places. But this fact is missing in earlier documents i.e. Ex. PW15/A and Ex. PW30/K and there is no explanation from the prosecution side about the missing of said important fact in the said documents particularly in Ex. PW30/K. In these circumstances, it is seldom to hold that the assailants had made her naked by tearing her clothes. However, it is proved from the testimony of eye-witnesses and circumstances that deceased was dragged from her house in the gali and thereafter she was assaulted. Dragging a woman in the public street amounts outraging her modesty, thus, in my opinion accused Mohan Lal and Vickey are also liable for the offence punishable under Section 354 IPC read with 34 IPC.
77. From the testimony of eye-witnesses it is also established that accused Mohan Lal and Vickey had also threatened the deceased when they met them outside the court room after attending the hearing in case FIR No. 119/08 that they would not leave alive the deceased today.
SC No. 54/2011 Page 77 of 85State Vs. Mohan Lal & others No doubt that the complainant party did not lodge any complaint about the said threat, but this itself is not sufficient to disbelieve their version particularly when it is established that complainant party was attacked by the assailants in the night itself, thus, I am of the view that both the accused are also liable for the offence punishable under Section 506 Part II of IPC read with Section 34 IPC.
78. Since prosecution failed to prove the involvement of accused Rajeev @ Bunty and Manish in the incident beyond the shadow of reasonable doubt, thus prosecution has failed to fulfil the requirement of Section148 and 149 IPC.
79. Perusal of the testimony of PW11 and PW12 it is established that they were also assaulted by the means of knife. Their MLC corroborated their version that they were assaulted by sharp edged weapon. No doubt, neither PW11 nor PW12 deposed that assailants had any intention to kill them. As per their deposition, even the threat that was given in the court was given to the deceased. No threat was given to the injured. From their deposition, it is established that assailants committed house trespass with an intention to kill Meena and not any other person and in order to achieve their common intention they inflicted as many as 25 injuries on her body and out of these 25 injuries, 17 injuries were inflicted on her face i.e. from scalp to neck portion. From the testimony of PW11 and PW12 it is clear that whatever injuries were caused to them, same were caused to prevent them from rendering any assistance to the deceased. However, it is proved that they also assaulted PW11 and PW12 by the means of knife when they prevented them or made an attempt to rescue their sister from their attack, thus it is proved that they had caused injury to PW11 and PW12 with an intention or knowledge or under such SC No. 54/2011 Page 78 of 85 State Vs. Mohan Lal & others circumstances that if either of them would be died by their act, they would have been held guilty for culpable homicide not amounting to murder, thus, both the accused persons are also liable for the offence punishable under Section 308 IPC read with 34 IPC.
Conclusion:
80. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused Bunty @ Rajeev and Manish beyond the shadow of all reasonable doubts, thus, both the accused persons are entitled for the benefit of doubt. Accordingly, I hereby acquit both the accused namely Bunty @ Rajeev and Manish from all the charges.
81. However, prosecution has succeeded to bring home the guilt of accused Mohan Lal and Vickey beyond the shadow of all reasonable doubts for the offences punishable under Section 452/302/308/354/506 Pt-II IPC read with Section 34 IPC, thus, I hereby hold both of them guilty thereunder.
82. Before parting with, I deem it appropriate to reiterate inherent defects in the investigation with a hope and trust that courts will not encounter such type of defects in future. Same are as under:-
(i) Manipulation was made in the rukka by converting the time 4:30 PM into 4:30 AM to show that the rukka was sent at 4:30 AM and not at 4:30 PM. This is nothing but amounts to fabricating false evidence as defined under Section 192 IPC.SC No. 54/2011 Page 79 of 85
(ii) PW22 and PW30 made a false deposition in the Court that the sealed pullandas containing the blood stained clothes were given by PW22 to PW30 at the spot whereas same had already been deposited with MHC (M) vide Ex. PW5/A under DD No. 38A. Their deposition prima-facie attracts the provision of Section 190 IPC.
(iii) That no attempt was made to seek clarification from the eye- witnesses to ascertain the circumstances under which accused persons sustained injury; rather efforts were made to conceal their injury as investigating officer even did not prepare body inspection memo.
(iv) That blood sample of PW11 and PW12 was putrefied. This shows that our investigating agency is not even able to prove the blood group of an alive person. If their blood sample was required only to find out the blood group; request should have been made to the hospital itself. In that situation, there was hardly any occasion to send their blood sample to the FSL. If their blood sample was required for DNA, request should have be made to take blood sample on FTA card. It is pertinent to state that samples such as blood, saliva, semen etc. taken on FTA care can be preserved for much longer period without any danger of degradation. Though FTA card was invented as back as in 1980 but till date our investigators are not using the same. It is pertinent to state that frequent use of FTA cards may help investigators in a big way.
(v) That no effort was made to take the blood sample of accused. Had their blood sample been taken, it would not have only helped the investigating officer to investigate the matter more efficiently but also helped this Court to analyse the evidence in a better way.
SC No. 54/2011 Page 80 of 85(vi) No step was taken even to call crime team at the time of going to recover the weapon of offence pursuant to the disclosure statements of accused. It shows that investigating officer believed that no finger prints would be found on the recovered weapon of offence. If crime team is summoned at the time of recovery of weapon of offence and recovery is photographed/video-graphed, it minimizes the manipulation or fabrication, thus will create a lot of confidence and help the prosecution to prove the case more efficiently.
83. In order to bring transparency and effectiveness in the investigation, copy of judgement be sent to Commissioner of Police to enable him to take remedial steps as he deems fit under intimation to this Court.
Announced in the open court
On 20th January, 2014 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI.
SC No. 54/2011 Page 81 of 85
State Vs. Mohan Lal & others
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 54/11
ID No. : 02401R0538592011
FIR No. : 133/11
Police Station : Prasad Nagar
Under Section : 302/308/324/354/452/
506/34 IPC
State
Versus
Mohan Lal
S/o Kanhiya Lal,
R/o 16/989E, Khalsa Nagar,
Tank Road, Karol Bagh, New Delhi
.........Convict No.1
Vickey
S/o Mohan Lal
R/o 16/989E, Khalsa Nagar,
Tank Road, Karol Bagh, New Delhi
.........Convict No.2
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. R.S. Malik Advocate, counsel for both the convicts SC No. 54/2011 Page 82 of 85 State Vs. Mohan Lal & others ORDER ON THE POINT OF SENTENCE :-
1. Vide separate judgment dated January 20, 2014, accused Mohan Lal and Vickey have been held guilty for the offences punishable under Section 452/302/308/354/506 Part-II of Indian Panel Code read with Section 34 of Indian Panel Code.
2. Learned counsel appearing for both the convicts sagaciously submits that minimum sentence for the offence punishable under Section 302 Indian Panel Code is imprisonment for life and to award capital punishment, Court has to give special reasons under Section 354 (3) of Code of Criminal Procedure. It is submitted that neither State has made any request for capital punishment nor the present case falls within the category of the rarest or rare case, thus requests to award minimum sentence as prescribed under law.
3. Learned Additional Public Prosecutor fairly concedes that case does not fall within the category of the rarest or rare case.
4. I have heard submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. In view of the submissions advanced by counsel for both the parties, I hereby sentence both the convicts as under:-
(i) Rigorous imprisonment for life and a fine of ` 1 SC No. 54/2011 Page 83 of 85 State Vs. Mohan Lal & others lac each in default further simple imprisonment for a period of two years for the offence punishable under Section 302/34 IPC.
(ii) Rigorous imprisonment for five years and a fine of ` 10,000/- each in default further simple imprisonment for a period of two months for the offence punishable under Section 308/34 IPC.
(iii) Rigorous imprisonment for two years and a fine of ` 2,000/- each in default further simple imprisonment for a period of fifteen days for the offence punishable under Section 354/34 IPC.
(iv) Rigorous imprisonment for five years and a fine of ` 10,000/- each in default further simple imprisonment for a period of two months for the offence punishable under Section 452/34 IPC.
(v) Rigorous imprisonment for five years and a fine of ` 10,000/- each in default further simple imprisonment for a period of two months for the offence punishable under Section 506 Part-II/34 IPC.
6. Fine amount, if paid, shall be deposited with the Victims Compensations Fund.
SC No. 54/2011 Page 84 of 857. All sentences shall run concurrently. Benefit of Section 428 Cr.P.C be given to both the convicts.
8. Since, due the act of convicts not only PW11 Bittoo and PW12 Balvinder Singh had sustained injuries but they also suffered the loss of their sister i.e deceased Meena who succumbed to her injuries, thus, I am of the view that family of deceased as well as both the injured persons are entitled for suitable compensation under Section 357 A Cr.P.C. Accordingly, I hereby recommend a compensation under Section 357A Cr.P.C. District Legal Service Authority (Central) shall award suitable compensation to the family of deceased as well as both the injured persons i.e PW11 Bittoo and PW12 Balvinder Singh under intimation to this Court. SHO police station Prasad Nagar shall render all assistance to the Secretary District Legal Service Authority, Central District in assessing the suitable compensation as well as in the identification of victims/family members of deceased.
9. Copy of order be sent to Secretary, District Legal Service Authority (Central) for taking necessary steps.
10. Copy of judgment along with order on the point of sentence be given to the convicts/their counsel free of cost.
11. File be consigned to record room.
Announced in the open Court on this 28th day of January, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 54/2011 Page 85 of 85