-1- INTHECOURTOFSH.SANJEEVAGGARWAL ADDL.SESSIONSJUDGE02,NORTH ROHINICOURTS,DELHI STATECASENo 59274/2016 FIRNo.865/15 P.S.AdarshNagar U/s.302/34[ACT] [ENTITY] Versus 1.
[ENTITY] S/o.BhawarSingh R/o.JhuggiNo.A76,BaraBagh KaushalPuri,Delhi
2. [ENTITY]@Kale S/o.Rakesh R/o.A82,KaushalPuri BaraBagh,Azadpur,Delhi
3. [ENTITY] S/o.RamKishore R/o.JhuggiNo.A76,BaraBagh KaushalPuri,Azadpur,Delhi Dateofinstitution :12.04.2016 Judgmentreservedon:25.07.2018 Judgmentdeliveredon:18.08.2018 ORDER/JUDGMENT: Allthethreeaccusedpersonsare convictedoftheoffence(s)under [SECTION].
SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.1 of 27 JUDGMENT
1. Brieffacts,asstatedinthechargesheetarethaton28.12.2015 on receipt of DD No. 29A SI [ENTITY] along with Ct. [ENTITY] reached the spot i.e. Bada Bagh, Kaushal Puri, near Kali Mata Mandir,wheretheycametoknowthattheinjuryhadbeenshitedto BJRMHospitalbythePCRvan.Uponthis,theywenttotheBJRM HospitalandcollectedtheMLCofinjured[ENTITY],uponwhichthe doctor had opined "A/H/O Physical assault smell of alcohol positive"andpatientwasdeclareddeadat10:30pmon27.12.2015. Thedeadbodyofthesaid[ENTITY]wasgotpreservedbytheIOinthe MortuaryoftheBJRMHospital.Therehemettwocompanionsofthe deceasednamely[ENTITY]and[ENTITY],whostatedthemselvesto be the eye witnesses of the incident. ASI [ENTITY] recorded statementof[ENTITY],whichreadsasunder:
On27.12.2015atabout8:45pm,hecameback to his home from his duty and after giving vegetables at home,hewenttothehouseofhis friend [ENTITY], where he met with [ENTITY] and [ENTITY],whoweretakingliquorandthereafterthey allwentnearBadaParktoattendcallofnature.He and[ENTITY]wentinsidetoattendthenaturescall, whereas[ENTITY]stoppednearparkedcars.When they came back after attending the natures call, SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.2 of 27 they did not find [ENTITY] near the cars and they started searching for him nearby and when he came near the Outer Road Urinal, he saw that [ENTITY]wasbeingbeatenbyKalia,[ENTITY], all residents of Kaushal Puri Jhuggies, by legs,fistsanddandablowsandassoonashewent toget[ENTITY]releasedfromthem,then[ENTITY]@ Kalia was saying that "[ENTITY] Tu Bahut Bada DadabantaHai,AajHumTeraKaamTamamKar Denge"inthemeantime,[ENTITY]hitadandaonthe head of [ENTITY] due to which [ENTITY] fell on the ground.Thereafter,allthosethreeboysfledaway fromthespot.[ENTITY] who appeared to be breathless and was not speaking anything. Then he made a call at 100 numberandtheybroughthimtoBJRMHospitalin the PCR van, where the doctors declared him broughtdead.
2. Onthebasisofthestatement,ASITejpalpreparedarukkaandsent Ct.[ENTITY]tothePSforregistrationofcaseFIR.Afterregistrationof theFIR,furtherinvestigationswerehandedovertoInspector[ENTITY],whohadalsoreachedthespot. Crimeteamwascalledto SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.3 of 27 the spot, who inspected the spot and took photographs and also preparedsiteplan. Searchforaccusedpersonswasmade,butin vain. IOwenttoBJRMHospitalandpreparedtheinquestpapers. Thepostmortemofthedeceasedwasgotconductedandthereafter the dead body was handed over to the relatives. During investigations,onreceiptofsecretinformationbytheIO,alongwith otherpoliceofficialsreachedBadaBaghParkingandfrominsidea tempo, all the three accused persons were apprehended whose namerevealedas[ENTITY]@Kale,[ENTITY]The weaponofoffencei.e.dandausedinthecommissionofcrimewas gotrecoveredbyaccused[ENTITY]pursuanttohisdisclosurestatement andsamewasseizedbytheIO.
3. After completion of investigation(s), a charge sheet u/[SECTION] [ACT]wasfiledinthecourtofLd.MM.
4. On committal of the casetotheCourt ofSessions,videorder dated17.10.2016,acharge(s)u/s302/34[ACT]wasframedagainstall theaccusedpersons,towhichtheypleadednotguiltyandclaimedtrial.
5. Thereafter,prosecutioninsupportofitscasehasexamined20 witnesses:
a) [ENTITY],DutyOfficeratPSAdarshNagar, whohasprovedthecopyofFIREx.PW1/Aandendorsement SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.4 of 27 madebyhimontherukkaasEx.PW1/B.Hehasprovedthe certificateu/S.65BIndianEvidenceActasEx.PW1/C.
b) PW2isCt.[ENTITY],Photographer,MobileCrimeTeam, NW District, who had visited the spot on the night of 27 28.12.2015andprovedthephotographstakenbyhimasEx.
PW2/A1toPW2/A8andCDofthesameasEx.PW2/B.
c) PW3isDR.MukeshMandal,CMO,BJRMHospital,who hasprovedtheMLCofdeceasedSanjeevasEx.PW3/A.
d) PW4 is Ms. [ENTITY], Primary Teacher, NDML Primary School, who had produced the admission related records of accused [ENTITY] and proved the same as Ex. PW4/AandEx.PW4/B.
e) PW5isInspectorManoharLal,Draftsman,NWDistrict, who had visited the spot on 15.03.2016 along with IO InspectorRakeshKumarandprovedthesiteplanpreparedby himasEx.PW5/A.
f) PW6isSh.[ENTITY],Sr.ScientificOfficer,FSL,who hasprovedtheFSLreportpreparedbyhimasEx.PW6/A.
g) PW7isASISatenderKumar,MHC(M),whohadmade relevant entries in Register No. 19 Ex. PW7/A regarding depositoffoursealedpullandasbyIOandsendingofviscera boxalongwithsamplesealtoFSLofficethroughCt.Anilvide entryinRegisterno.19asEx.PW7/B.
h) PW8 is ASI [ENTITY], Incharge PCR Van SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.5 of 27 Commander16,whoonthenightof2728.12.2015onreceipt ofcallfromControlRoomreachedatthespotfromwherethey shiftedoneboyinunconsciousconditiontoBJRMhosital.
i) [ENTITY],whoon18.03.2016tookthesealed pulandasealedwiththesealofRKanddepositedthesameat [CASE NUMBER].
j) PW10isCt.[ENTITY],whowenttothespotalongwithASI [ENTITY] on 27.12.2015 and deposed about the investigationsaswerecarriedoutbytheIOinhispresence.
k) PW11 is Ct. [ENTITY], to whom the doctor had handed oversealedviscerabox,pulanda(s),bloodsampleandsample seal,whichweretakenintopossessionbytheIOvideseizure memoEx.PW11/A.
l) PW12 is [ENTITY], who had identified the dead body of his son [ENTITY] vide identification statement Ex. PW12/AandalsoreceivedthesamevidereceiptEx.PW12/B.
m) [ENTITY],aneyewitnessoftheincident,who hasdeposedaboutthemodeandmanneroftheincidentas wellastheidentityoftheaccusedpersons.
n) [ENTITY],Incharge,MobileCrimeTeam,NW District, who visited the spot on the intervening night of 27/28.12.2015andprovedthereportpreparedbyhimasEx. PW14/A.
o) PW15 is SI [ENTITY], who was posted at PS SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.6 of 27 [ENTITY]/JWO.Hehasprovedthesocialreportof [ENTITY]asEx.PW15/Aandhisapprehensioninthiscase vidememoEx.PW15/B. Hehasalsoprovedtheversionof thesaidaccusedasEx.PW15/C.
p) PW16is[ENTITY](complainant),anothereyewitnessin thiscase,whohasdeposedaboutthemodeandmannerof theincidentaswellastheidentityoftheaccusedpersons.
q) [ENTITY],whoon27.12.2015waspostedat PHQandhasprovedthemessagereceivedbyhimregarding quarrelatBaraBagh,whichhehadrecordedinPCRForm No.1asEx.PW17/A.
r) PW17isCt.AnilKumar(wronglymentionedasPW17 again),whoon24.02.2016ontheinstructionsofIOtookthe sealedexhibitsfromMHC(M)withFSLformanddepositedthe sameinFSLoffice,Rohini.
s) PW18 is Dr. [ENTITY], Assistant Professor, MGM MedicalCollege,whohadconductedthepostmortemonthe deadbodyofdeceased[ENTITY]on28.12.2015andprovedthe PMreportpreparedbyhimasEx.PW18/A,andsubsequent opinionquaweaponofoffenceasEx.PW18/C.
t) [ENTITY],initialIOinthiscase,whoon receiptofDDNo.29Aon27.12.2015reachedthespotalong withCt.[ENTITY].HehasprovedtherukkapreparedbyhimEx. PW16/A on the basis of which, the present FIR was got SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.7 of 27 registeredatPSAdarshNagar.
u) PW20 is Inspector [ENTITY], IO of this case, Inspector [ENTITY], IO of the case, who has deposed regardingtheinvestigationsaswerecarriedoutbyhimduring thecourseofthepresentcase.
6. Thereafter, statements of all the accused persons u/[SECTION] [ACT] were recorded, in which the entire incriminating evidence appearingagainsttheaccusedpersonswasputtothem,inwhichthe defence of all the accused persons was that they had been falsely implicatedinthepresentcase.Theyfurtherstatedthattheyhadnothing todowiththepresentcase.Theywerecalledtopolicestationwhere they were forced to sign certain blank papers, which were later on convertedagainstthem.However,theychosenottoleadevidencein theirdefence.
7. IhaveheardSh.[ENTITY],Ld.DefenceCounselforaccused persons namely [ENTITY] and [ENTITY], Sh. [ENTITY], Ld. DefenceCounselforaccusedSone,Sh.[ENTITY]Ld.Addl.PP forthe[ENTITY]andperusedtherecord.
8. Ld. Defence counsels have argued that the prosecution has plantedPW13[ENTITY]as eyewitnessestothe incidentdated27.12.2015. Theyfurthersubmitthatthosewitnesses SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.8 of 27 werenotpresentatthespotatthetimeoftheallegedincident,whichis alsoevidentfromtheperusaloftheDDNo.29A,dated27.12.2015, whichshowsthatthesaidDDwasrecordedontheinformationthatone injuredwaslyinginunconsciousconditionandthesaidDDnowhere revealsthepresenceofeitherPW13[ENTITY]orPW16[ENTITY]atthe spot.
TheyfurtherarguedthatthetestimonyofPW13isofwavering nature,asheinhisexaminationinchiefhassupportedtheprosecution story. Thereafter, in his crossexamination qua defence, he turned hostileanddidnotsupporttheprosecutionstoryregardingthemanner oftheincidentortheidentityoftheaccusedpersons.Lateroninhisre examinationbytheLd.Addl.PPforthe[ENTITY],heagaintookadifferent stand and supported his examinationinchief. Therefore, they have arguedthatnoreliancecanbeplacedonsuchawaveringwitness.
Regarding the testimony of PW16 [ENTITY], they have argued thattestimonyofthiswitnessasawholeisalsonottrustworthyashe wasalsolateronintroducedasawitnessinthepresentcasetolend assurancetothetestimonyoftheprosecutionandfromthereadingof his testimony as a whole, there are number of contradictions in his testimony, which shows that he is not a trustworthy witness and no reliancecanbeplaceduponsuchawitness.
They further argued that the testimony of PW8 ASI [ENTITY],whohadtakentheinjured[ENTITY]tothehospital also shows that none of the witness i.e. PW13 [ENTITY] and PW16 SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.9 of 27 [ENTITY]werepresentatthespotwhenthePCRofficialsreachedthere and in his crossexamination, he has stated that, though, 12 public personswerepresentatthespot,whenhereachedthere,buthedoes notknowwhethertheywereknowntotheinjuredornot. Thisshows thatneitherPW13norPW16werepresentatthespotatthetimeofthe incident. They also submit that recovery of danda half burnt in pursuancetothedisclosurestatementoftheaccuseddoesnotconnect theaccused[ENTITY]withthesame.Theyfurtherarguedthatnocommon intentionoftheaccusedpersonscanbemadeoutfromthetestimonyof the prosecution witnesses, and therefore, all the accused persons cannot be vicariously held liable for the act of the other accused persons. Even if for the sake of argument, it is presumed that the prosecution has been abletoproveitscasebeyondanyshadowof doubt,eventhencaseoftheaccusedpersonsfallsu/S.299(c)ofthe [ACT]andatthemost,theaccusedpersonscanonlybeconvictedu/[SECTION].
9. Ontheotherhand,theLd.Addl.PPforthe[ENTITY]hasstrongly controverted the above arguments of the defence counsels and has arguedthatfromthetestimoniesofPW13andpW16,theprosecution hasbeenabletoprovethetime,placeaswellasthepresenceofthe accusedpersonsatthespotasalsoidentityoftheaccusedpersons and there are no major contradictions in the testimonies of PW13 [ENTITY],whowerethenaturalwitness,whowere SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.10 of 27 presentatthespot,astheyhadgonewiththedeceased[ENTITY]to answerthecallofnatureandhefurthersubmitsthatasperDDNo. 29A, thePCRcallhadbeenmadebyPW16fromhismobilephone 9582430933andfurtherthePCRFormEx.PW17/Aalsorevealsthat whenthePCRvanreachedthespotandtheinjuredwastakentothe hospital,eventhenPW[ENTITY]wasverymuchpresentthere. He further argued that the recovery of wooden danda, pursuant to the disclosure statement has been duly proved to be recovered, and therefore,thesaidevidenceisadmissibleu/S.27oftheEvidenceAct andaspertheopinionoftheautopsysurgeon,theinjuriesfoundonthe bodyofthedeceasedwerepossiblebytherecovereddandaandasper the post mortem report, the head injuries suffered by the deceased weresufficienttocausedeathinordinarycourseofnature,therefore, theprosecutionhasbeenabletomakeoutacaseu/S.300[ACT]andthe casedoesnotfallunderanyoftheexceptionofSection300[ACT]and neitheritfallsinanyoftheprovisionsu/[SECTION],asarguedbyLd. DefenceCounsels.
10. Ihavegonethroughtherivalcontentions.
11. PW16 [ENTITY] in his testimonial deposition in the Court has deposedasunder:
SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.11 of 27 "I am residing at the aforesaid address alongwith my family. I am a permanent resident of Village Gamti, PS Daulishakra, District Mujjafarpur, Bihar. I am working as a driver at Ashok Vihar, A-100, Phase-II, Delhi.
On 27.12.2015, at about 8:45 pm, I came to my house after my duty hours and I brought vegetables. Thereafter, I went to the house of my friend [ENTITY] who was also working as driver with me. When I reached in the house of [ENTITY], he alongwith [ENTITY] (deceased) were taking liquor.
After some time, all of us went for latrine in the park. I alongwith [ENTITY] went inside the park for latrine while [ENTITY] was standing near the vehicles just inside the road. After easing us, when I alongwith [ENTITY] came there we did not find [ENTITY] there. We searched [ENTITY] here and there. When we reached near shauchalya on the road we saw [ENTITY] was gave beatings by three boys namely [ENTITY], [ENTITY] and [ENTITY] with dandas, legs and fist blows. I knew all the three persons as they are the residents of Kaushal Puri.
Accused [ENTITY] hit the danda on the head of [ENTITY]. All the three accused namely [ENTITY], [ENTITY] and [ENTITY] are present in the court today (correctly identified by the witness while pointing out towards them one by one). Due to danda blow [ENTITY] fell down on the ground and thereafter all the three accused left the spot.
I alongwith [ENTITY] tried to lift [ENTITY] but he was not responding and was unconscious. Thereafter, I made a call from my mobile phone bearing no. 9582430933 at 100 number. PCR reached at the spot and [ENTITY] was taken to BJRM Hospital where doctors declared him dead.
Police came there and made inquiries from me and recorded my statement in this regard. Same was read over and explained to me and after finding it to be the correct, I signed the same at point A on Ex. PW16/A. SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.12 of 27 On the basis of my statement, case was registered. At mortuary, BJRM Hospital, I identified the dead body of deceased [ENTITY] vide my identification statement Ex. PW16/B. Thereafter, we came back at the spot and on my pointing out, IO prepared the site plan. Accused [ENTITY] and [ENTITY] were arrested on my identification vide arrest memos Ex. PW16/C and Ex. PW16/D which bears my signatures at point A and their personal search were also conducted vide memos Ex. PW16/E and Ex. PW16/F both these memos also bears my signatures at point A respectively.
The disclosure statements of accused [ENTITY] and [ENTITY] were also recorded which are Ex. PW16/G and Ex. PW16/H which also bears my signatures at point A. Both the accused pointed the place of occurrence vide memo Ex. PW16/J and Ex. PW16/K which also bears my signatures at point A respectively.
Accused [ENTITY] was also apprehended vide apprehension memo already Ex. PW15/B and his personal search was conducted vide memo Ex. PW16/L bears my signatures at point A. Accused [ENTITY] also got recovered weapon of offence i.e. danda which was burnt from one end under the vehicle near the spot and same was converted into a pulanda and taken into possession vide seizure memo Ex. PW16/M which also bears my signatures at point A and thereafter IO recorded my statement in this regard. I can identify the case property if shown to me. At this stage, MHC (M) has produced one pulanda sealed with the seal of NKG. Same is opened found to contain one wooden danda burnt with one end. Same is shown to the witness who correctly identifies it to be the same by which accused [ENTITY] hit on the head of deceased and got recovered the same. The said wooden danda is Ex. P1."
12. PW16hassupportedtheprosecutionversionregardingthetime, SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.13 of 27 placeaswellasthemanneroftheincident.Regardingtheidentity,he deposedthatheknewallofthemastheywereresidentsofKaushal Puri. Hehasalsodeposedregardingthespecificroleofeachofthe accused persons. In his crossexamination qua accused [ENTITY] and [ENTITY]hehasreiteratedandreaffirmedthestorystatedbyhim inhisexaminationinchief.Regardingtheidentitypart,hehasdenied that there was no electricity at the spot, rather he had stated that electricpolewasatadistanceof45metersfromthespot.Infactthe followingsuggestionwasgiveninthecrossexaminationofthewitness, whichisreproducedasunder:
"It is correct that he knew all the accused personspriortotheincident"
Bygivingsuchsuggestion,eventhedefenceadmitsthatheknew alltheaccusedpersonspriortotheincident,whichshowsthatidentity oftheaccusedpersonswasneverindoubtinthepresentcase.Further regardingtheidentityoftheaccused[ENTITY],hestatedthatwhenhe usedtovisitthehouseof[ENTITY],heusedtosee[ENTITY]ingaliand he also stated that beforerunning,accusedpersonshadtheirfaces towardshim. Hefurtherdeposedthattheaccused[ENTITY]@Kaliwas residing adjacent to the house of PW16, which has remained un demolished. After his crossexamination, the prosecution has been abletoprovethetime,placeaswellasthemanneroftheincident,as also the identity of the accused persons beyond any doubt. The prosecution has also been able to prove that there was sufficient SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.14 of 27 illumination available at the spot to see the faces of the accused persons. Therefore, overall the testimony of PW16 after the examination and crossexamination is over, remains in the realm of beinghighlyreliableinnature.
13. PW13[ENTITY]isanothereyewitnesscitedbytheprosecution whohasalsodeposedregardingthetime,placeaswellasthemanner oftheincident. Hehasalsoidentifiedalltheaccusedpersonsinhis testimonialdepositionintheCourt.However,on05.08.2017,hiscross examination was deferred. Thereafter, in his crossexamination on behalfofaccused[ENTITY]and[ENTITY]hestatedasunder:
"It is correct that when I reached on the spot [ENTITY] was unconscious stage. It was correct that when we reached on the spot the quarrel had already ended.
Itiscorrectthathehadnotseenthefaceofanyof theaccusedonthespot."
Inhiscrossexaminationquaaccused[ENTITY]and[ENTITY]he alsostatedthatwhenhereachedthespot,[ENTITY]wasinunconscious stageandwhenhereachedthespot,thequarrelhadalreadyended. He further admitted that he had not seen the face(s) of any of the accusedatthespot.Thereafter,hewasreexaminedbytheLd.APP forthe[ENTITY],whereinhereaffirmedhisexaminationinchiefandeven a Courtobservation wasmadethatthewitnessfurtherconfirmsthat allthreeaccusedpersonsweretherewhen[ENTITY]hitthedeceasedwith SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.15 of 27 dandaandafterhittingdanda,threepersonsoutofmany,fledaway fromthespot.
14. Thereafter, he also stated that it is correct that the assailants couldbeidentifiedevenindimlightfromshortdistanceandhealso stated that many persons, which he stated in his answer were not involvedintheincidentofgivingbeatingstodeceased[ENTITY]apart from the three accused persons present in the Court today i.e. the accused persons in question. Thereafter, no further material cross examination of this witness has been done by the Ld. Defence Counselstherebydiminishingtheassertionsmadebythesaidwitness inhisreexaminationbytheLd.Addl.PPforthe[ENTITY]. Though,the probativeforceofthetestimonialdepositionofPW13hasbeendented due to his wavering stand taken in his examinationinchief, cross examination,reexamination,buteventhenhisprobativeforcecanbe assessedtobeintherangeof60%ontheprobativescale(s)of1to10, therebytheCourtcanlookforcorroborationfromhistestimonytothe testimony of PW16 [ENTITY] and thereby the testimony of PW13 strongly reaffirms and supports the testimonial deposition of PW16 [ENTITY].
Inanycase,thepurposeofcorroborationinanycriminaltrialisto ruleouttheerrorswhichmayoccurinthetestimonyofasinglewitness onaccountofobservationalsensitivity,objectivityandveracity,asiftwo witnessesaredeposingaboutthesameincidentinsamewayandtheir SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.16 of 27 depositions are also supported by other evidence(s) and same are foundtobetrustworthy,thenthechancesoferrorsinthetestimonyof singlewitnessaretherebyruledout.
15. RegardingthetestimonyofPW8ASIGajenderSinghofthePCR, whohadgonetothespotonthedateoftheincidentonreceiptofcallat 9:30pm,regardingquarrelatthespot,hestatedthathereachedthe spotalongwithdriverandgunman. Hefoundthereaboywaslying unconsciousinfrontofaKabarioraTeashopoppositetoFactoryNo. 44,Kaushalpuri,Delhi.ThesaidboywasshiftedtoBJRMHospitalin PCR van. Thereafter, the doctor within 10 minutes declared him broughtdead. Inhiscrossexamination,hehasstatedthatonly12 persons were present at the spot, when he reached there, but he cannottellwhethertheywereknowntotheinjuredornot.Thereby,the saidwitnesshasnotstatedanything,whichsupportsthedefencethat nobodywaspresentatthespotatthetimewhenthePCRvanreached thespot. Sincehispriorityatthattimewastoshifttheinjuredtothe nearesthospitalattheearliest,therefore,hewasnotboundtoconfirm theidentitiesofthepublicpersonspresentatthespotatsaidcritical time,whichwasthedutyofthelocalpolice,hisutmostprioritywasto savethelifeofanunconsciousperson.
Evenotherwise,theperusalofPCRFormEx.PW17/Aandthe factsmentionedthereini.e.thetranscriptbetweenthePCRofficialsand thepolicecontrolroomrevealsthatPW[ENTITY]waspresentwiththe SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.17 of 27 PCRofficialsandwasalsopresentatthehospital.Therefore,thisalso lends assurance to the testimony of PW16 [ENTITY] that he was presentatthespotatthetimeoftheincident.
16. Asalreadydiscussedabove,thePCRcallEx.PW19/Awhichwas recordedvideDDNO.29AwasalsomadebyPW16[ENTITY]fromhis mobileno.9582430933regardingthequarrelandunconsciousnessof thedeceased.Thisalsoshowsthathewaspresentatthespotatthe time of incident. Therefore, any cloud in this reard is hereby done away.
17. Further,PW20IOInspectorRakeshKumar,whohadinvestigated thecasewasaskedthefollowingsuggestion:
"ThatitwascorrectthatPW[ENTITY]metmeat thespot."
This also affirms the prosecution case that PW [ENTITY] was presentthroughoutthathewaspresentwiththePCRofficials,atthe spotandalsoatthehospital.Inpursuancetothearrestanddisclosure statementofaccused[ENTITY],hegotrecoveredoneburntwoodendanda, whichwassealedandtakenintopossessionvideseizurememoEx. PW16/M. Nothinghascomeoutinhiscrossexamination,therefore, thesaidrecoveryisarecoveryu/[CASE NUMBER].Therewasno bloodstainedonthewoodenhalfburntdanda,butjudicialnoticecan betakenofthisfactthatthetimespanduringwhichthedandamust SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.18 of 27 have hit the head of the deceased[ENTITY]andoozingoutofblood musthavebeenlittlelater,andtherefore,therewaschanceofdanda beingsoiledwiththebloodforsmallspanofmicrosecondscannotbe there.
18. ThepostmortemreporthasbeenprovedbytheDr.[ENTITY] asEx.PW18/A,asperwhichoninternalexamination,followinginjuries werefound:
"INTERNALEXAMINATION A)Head Scalp:Onreflection,reddishcontusionofsize01cm x 01cm was present on right frontal region, 05cm abovethesupraorbitalridges.
Skull:Linearfracturemeasuring09cminlengthwas presentoverrightfrontalboneandextendedtothe baseofskullinvolvingrightethmoidalbone.
Brain: Subdural hemorrhage was present on right frontal lobes. Diffuse subarachnoid haemorrhage was present. Inraventricular haemorrhage was present. Brain was soft, oedematous and congested."
AspersubsequentopinionoftheconcernedautopsysurgeonEx.
SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.19 of 27 PW18/C, it was opined that the injuries caused on the body of deceasedwerepossiblebytherecoveredwoodenstick(danda)andas perthepostmortemreport,theheadinjuriessufferedbythedeceased weresufficienttocausedeathinordinarycourseofnature.Therefore, themedicalevidenceinthiscasealsodulysupportsthedirectevidence leadbytheprosecutionandstronglysupportstheprosecutionversion regardingthemanneroftheincident.
19. NowcomingtothenextargumentoftheLd.DefenceCounsels thattheactoftheaccuseddoesnotfallinSection300[ACT]anditonly fallsu/[SECTION] Section299and300[ACT]arereproducedas under:
299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300 Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.- If it is done with the intention of causing bodily injury to any person and the SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.20 of 27 bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly.-If the person committing the act knows tat it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
20. Theactoftheaccusedpersonsinthepresentcasewillnotfall eitherinSection299(a)orSection300(1)ofthe[ACT]asfromthefacts established above, no intentiontocausedeathofdeceased[ENTITY] canbefoundout,astheactoftheaccusedwasnotpremeditatedand quarrelhadtakenplacesuddenlyatthespotoveratrivialmatter.The accusedpersonswerenotarmedpriortotheincidentandhadattacked the deceased with a dandapickedupfromthespot. Therefore,no intention to cause death can be fastened upon any of the accused person. NowcomingtoClause299(b)[ACT]andSection300(2)&(3) [ACT],thepresentactoftheaccusedpersonsalsodoesnotfallinanyof theseclauses.Asdiscussedabove,neithertheaccusedpersonswere armed prior to the incident nor they had premeditated or had prior concert to cause such injuries, as were found on the body of the deceased,asshowninthepostmortemreportEx.PW18/A.Nodoubt, theautopsysurgeoninhissubsequentopinionEx.PW18/Chasopined thattheheadinjuriessufferedbythedeceasedweresufficienttocause SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.21 of 27 deathinordinarycourseofnatureandtheinjurieswerepossiblebythe dandaEx.PW18/B,sentforforensicanalysis.However,theintention to cause such injuries, as were ultimately found on the body of the deceased,cannotbefastenedquatheaccusedpersonsasitcannotbe saidthattheaccusedpersonsatallmaterialtimerecognizedthatthe death or serious harm would be virtually certain (barring some unforeseenintervention)toresultfromtheirvoluntaryacti.e.tosaythat theaccusedpersonshadtheforesightoftheconsequence(s)thatby giving such single blow with danda, the same would result into the deathofthedeceased.Moreso,thesaidhalfburntdandawaspicked up from the spot, as the accused persons were enjoying bonfire in winters. They had not come prepared at the spot armed with said danda, therefore, they cannot said to have foresight of the consequence(s)oftheiractnortheycanbeattributedwiththeintention of causing bodily injuries that were sufficient to cause death of the deceased in the ordinary course of nature. The following example wouldbeapttodescribeintention:
AmanboardingaplanewhichisdestinedforMumbai,whichhe knows to be bound for Mumbai, once he boards such a plane, he conclusivelydemonstrateshisintentiontogothere.
21. In this scenario, the present case, the accused persons, as discussedabove,cannotbeattributedwiththenecessaryintentionthat bycausingasingleblowwiththehalfburntdanda,whichtheypicked SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.22 of 27 upfromthespot,intheheatofmomentandhadnotbroughtbeforethe incidentorwellarmedwithsamepriortotheincidenti.e.tosaythat theywerenothavingtheintentiontocausesuchbodilyinjuryaswas likelytocausedeathnoritcanbesaidthattheyhaddonetheactin question,soastocausebodilyinjurytothedeceased[ENTITY],which wassufficienttocausedeathintheordinarycourseofnature.
22. NowadvertingtotheSection299(c)[ACT]andSection304PartII [ACT],theact(s)oftheaccusedpersonswoulddefinitelyfallu/S.299
(c),asifsomeonehitswithadandablowontheheadofaperson,due towhichthereisalinearfracturepresentovertherightfrontalbone extendedtotheboneoftheskullandwhichalsoresultsintosevere subduralhemorrhageandotherhemorrhageintothebrain,onecanbe saidtohavethenecessaryknowledgethattheheadbeingthemost vitalpartofthehumanbody,andanysuchinjuryonheadcouldbe lethalorfatal.
23. Inthepresentcase,sinceonlyonedandablowwasgivenonthe head,whichturnedouttobefatal,therefore,atthesametime,actof theaccusedpersonswouldnotfallu/S.300(4)[ACT].Asforconviction under [SECTION] [ACT], higher degree of probability would be requiredtocausedeaththanwouldberequiredunderSection299(c) [ACT].Inthepresentcase,aspertheprosecutioncaseonlyonedanda blowwasgivenbytheaccused[ENTITY],whichturnedouttobefataland SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.23 of 27 thesaiddandablowhadbeengivenonthehead,whichisthemost vitalpartofthehumanbody.Therefore,whentheaccusedpersonsdid thesaidact,theycandefinitelybeattributedwiththeknowledgethat theyarelikelytocausedeathbysuchactofdeceased[ENTITY],which ultimately resulted into his death. Therefore, the case of the prosecutionfallsu/[SECTION]
24. Nowadvertingtocommonintention,thelaw regardingthesame hasbeenlaiddowninthejudgmenttitledasGirijaShankarVs.[ENTITY]
"Section34hasbeenenactedontheprincipleof joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participationinaction.Theliabilityofoneperson foranoffencecommittedbyanotherinthecourse of criminal act perpetrated by several persons arises under [SECTION] if such criminal act is doneinfurtheranceofacommonintentionofthe personswhojoinincommittingthecrime.Direct proof of common intention is seldom available and,therefore,suchintentioncanonlybeinferred from the circumstances appearing from the proved facts of the case and the proved circumstances.Inordertobringhomethecharge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial,thattherewasplanormeetingof SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.24 of 27 mind of all the accused persons to commit the offenceforwhichtheyarechargedwiththeaidof [SECTION], be it prearranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Sectionisthatiftwoormorepersonsintentionally do an act jointly, the position in law is just the sameasifeachofthemhasdoneitindividuallyby himself.AsobservedinAshokKumarv.[ENTITY]of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of thisSection.Itisnotnecessarythattheactsofthe several persons charged with commission of an offence jointly must be the same or identically similar.Theactsmaybedifferentincharacter,but must have been actuated by one and the same commonintentioninordertoattracttheprovision. The Section does not say "the common intention of all", nor does it say" and intention commontoall".Undertheprovisionsof[SECTION]theessenceoftheliabilityistobefoundinthe existence of a common intention animating the accusedleadingtothedoingofacriminalactin furtherance of such intention. As a result of the applicationofprinciplesenunciatedinSection34, whenanaccusedisconvictedunderSection302 read with [SECTION], in law it means that the accusedisliablefortheactwhichcauseddeathof thedeceasedinthesamemannerasifitwasdone byhimalone.Theprovisionisintendedtomeeta case in which it may be difficult to distinguish between acts of individual members of a party whoactinfurtheranceofthecommonintentionof allortoproveexactlywhatpartwastakenbyeach SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.25 of 27 ofthem.AswasobservedinCh.PullaReddyand Ors. v. [ENTITY] of Andhra Pradesh (AIR 1993 SC 1899), [SECTION] is applicable even if no injury has been caused by the particular accused himself. For applying [SECTION] it is not necessarytoshowsomeovertactonthepartof theaccused."
25. PW13[ENTITY]hasstatedinhisexaminationinchiefthatallthe accused persons were giving beatings to [ENTITY] with legs and fist blowswhenhewithPW16[ENTITY]triedtorescue[ENTITY]then[ENTITY] [ENTITY],aajterakaam tamam kar denge" and during this process, accused [ENTITY] hit the danda on the head of [ENTITY] with the intention to kill him. PW16 [ENTITY].
26. Fromtheaforesaidutterancesmadebytheaccusedpersonsand thefactthatalltheaccusedpersonsgavelegsandfistblowsandone ofthemhit[ENTITY]withdanda,itisclearthattheaccusedpersonsdid theactorseriesofactinfurtheranceoftheircommonintentionandall of them actually participated in the commission of the offence(s), in furtheranceofthesame.Accordingly,allofthemarevicariouslyliable fortheactsofeachother.
27. Tosumup:
Fromtheaforesaidanalysisofevidence,theprobativeforceof SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.26 of 27 theprosecutionevidenceasawholeistouchingthepointofcertainty onthescales,whereprobabilityofhappeningofanyeventisassessed ormeasured,whereasthedefenceversionishavingverylowprobative force, which is almost touching the point of disbelief. As a consequence,alltheaccusedpersonsstandconvictedu/[SECTION] [SECTION]
AnnouncedintheopenCourt ([ENTITY]) th onthis18 dayofAugust2018.Addl.SessionsJudge02,North RohiniCourts,Delhi/18.08.2018 SCNo.59274/16FIRNo.865/15PSAdarshNagar[ENTITY]Vs.[ENTITY]&Ors.PageNo.27 of 27