Delhi High Court
Naval Kishore vs The State (Govt. Of Nct Of Delhi) on 17 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. No.1747/2014
Judgment reserved on : 22nd March, 2017.
Date of decision : 17th April, 2017.
NAVAL KISHORE ..... Appellant
Through: Ms. Inderjit Sidhu, Amicus Curiae for the
appellant.
Versus
THE STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through: Ms. Aashaa Tiwari, Addl.P.P. for the
State.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. This appeal has been instituted by the appellant Naval Kishore son of Shri
Bhagwati Prasad assailing the impugned judgment dated 26.07.2014 and
impugned order on sentence dated 30.07.2014 of the learned Additional
Sessions Judge-05 (North), Rohini Courts, New Delhi in Sessions Case No.
43/2014 in relation to FIR No. 13/11, P.S. S.P. Badli. Vide the impugned
judgment dated 26.07.2014, the accused/the appellant herein Naval Kishore was
convicted for the commission of the offence punishable under Section 302 of
the Indian Penal Code (IPC), 1860 and vide the impugned order on sentence
dated 30.07.2014, he was sentenced to imprisonment for life and to pay a fine of
Rs.2,000/- and in default of the payment of fine, to further undergo simple
imprisonment for two months. The accused/the appellant herein Naval Kishore
was also granted benefit of the period of detention already undergone in terms
of Section 428 Cr.P.C, 1973. The impugned order on sentence dated 30.07.2014
indicates that the fine has not been paid.
2. The delay of 82 days in institution of the Criminal Appeal no. 1747/2014
was condoned vide order dated 22.12.2014 whereafter the appeal was admitted
and the trial court record has been requisitioned, received and perused.
3. Vide order dated 01.02.2017 in Crl. M. (Bail) No. 1662/2017, the
appellant was granted interim suspension of sentence for a period of four weeks.
The interim suspension of sentence was further extended vide order dated
06.03.2017 for a further period of three weeks on the same terms and conditions
as imposed vide order dated 01.02.2017 and has since surrendered as informed
by the learned Amicus Curiae for the appellant.
4. Arguments were addressed on the appeal on behalf of the accused/the
appellant herein Naval Kishore by Ms. Inderjeet Sidhu, learned Amicus Curiae
for the appellant and on behalf of the State by the learned Additional Public
Prosecutor Ms.Aashaa Tiwari.
PROSECUTION VERSION
5. As per the prosecution version set forth in the police report under Section
173 of the Cr.P.C, 1973 on 11.01.2011 at about 9.30 p.m., the accused/the
appellant herein Naval Kishore along with the co-accused juvenile Nitin (JCL)
visited a grocery shop of one Somnath Shukla (PW-10) situated at A-2/19,
Rana Park, Siraspur, Delhi for purchasing curd and when the shopkeeper i.e.
Somnath Shukla (PW-10) asked the accused/the appellant herein Naval
Kishore as to what quantity of curd he required, the accused/the appellant herein
Naval Kishore asked him to give the entire curd. The shopkeeper i.e. Somnath
Shukla (PW-10) is stated to have asked the accused/the appellant herein Naval
Kishore as to what he would do with the entire curd to which the accused/the
appellant herein Naval Kishore replied "Nale mai fekunga ya kuch bhi
karunga tumse matlab". One Rahul Singh (PW-6) and his maternal uncle
Mukesh (since deceased) were present at the spot at the time of the altercation
Mukesh tried to intervene in the matter and asked the accused/the appellant
herein Naval Kishore as to why he was harassing the shopkeeper Somnath
Shukla (PW-10) due to which there was an exchange of hot talks between
Mukesh and the accused/the appellant herein Naval Kishore and his
associate/the co-accused Nitin Juvenile in Conflict with the law (hereinafater
referred to as "JCL").
6. The prosecution version further indicates that the accused/the appellant
herein Naval Kishore and his associate Nitin (JCL) began quarrelling with
Mukesh and abused him. Whereas Nitin (JCL) was alleged to have caught hold
of Mukesh, the accused/the appellant herein Naval Kishore went inside his
house and came with a "Chheni" like weapon (which is used to make hole in
wood) and attacked Mukesh with the weapon due to which Mukesh fell down
on the ground. In the meantime, two police officials i.e. Ct. Rajiv (PW-17)
and Ct. Sandeep (PW-20) reached there and apprehended the accused/the
appellant herein Naval Kishore and his associate Nitin (JCL) at the spot along
with the said weapon. Information of this incident was recorded at the Police
Station S.P. Badli vide DD No. 42A dated 11.01.2011 (Ex.PW1/D) whereafter
SI Alok Bajpai (PW-21) along with HC Om Prakash (PW-4) reached at the
spot where Ct. Rajiv (PW-17) and Ct. Sandeep (PW-20) produced the
accused persons along with the weapon of offence i.e. "chenni" like weapon to
SI Alok Bajpai (PW-21) and informed that the injured Mukesh had already
been shifted to the BSA Hospital by the public persons.
7. At the BSA Hospital, the injured Mukesh was examined by Dr. Kuldeep
Singh (PW-7) and Dr. Ashish Rathore. The MLC is indicated to have been
prepared by Dr. Ashish Rathore under the supervision of Dr. Kuldeep Singh
(PW-7), CMO BSA Hospital as Ex.PW7/A, bearing the signatures of Dr.
Kuldeep Singh (PW-7) at point-A and of Dr. Ashish Rathore at point-B. The
MLC (Ex.PW7/A). The testimony of Dr. Kuldeep Singh (PW-7) observes to
the effect that the injured Mukesh son of Sh. Ratan Singh was brought on the
date of the incident dated 11.01.2011 at about 11.00 p.m. by his sister Smt.
Narangi (PW-15) with an alleged history of physical assault/stab injury. The
MLC (Ex.PW7/A) indicates that the patient Mukesh was brought in a gasping
condition with pulse not palpable and BP not recordable and the patient was
gasping. On examination the following injuries were found : -
(1) Incised wound of size 1x0.5 cms on left side of chest
(2) Incised wound of around 1x0.5 cms over left elbow.
(3) Lacerated wound of size 10x0.5 cms over left shoulder.
(4) Lacerated wound of size 8x0.5 cms over Anterior wall
just below left subcostal region.
(5) Lacerated wound of size 0.5x0.5 cms over upper lip.
(6) Lacerated wound of size 1x0.5 cms over lower lip.
As per the testimony of Dr. Kuldeep Singh (PW-7), he gave the required
treatment to the injured Mukesh whereafter he was referred to SR Surgery and
SR Anesthesia for further management. Dr. Kuldeep Singh (PW-7) further
opined on the same day as testified by him that the patient Mukesh was unfit
for statement at 11.10 p.m. The black shawl and light blue coloured blanket in
which the injured patient Mukesh had been brought to the BSA Hospital were
sealed and handed over to the Investigating Officer by Dr. Kuldeep Singh
(PW-7).
Dr. Kuldeep Singh (PW-7) in his testimony in cross examination has
testified to the effect that "injury no. 3 & 4 i.e. (3) Lacerated wound of size
10x0.5 cms over left shoulder (4) Lacerated wound of size 8x0.5 cms over
Anterior, wall just below left subcostal region", are not possible due to fall on
concrete road.
8. The prosecution version further indicates that the statement of Rahul
Singh (PW-6), nephew of Mukesh and the eye witness was recorded at the
hospital as Ex.PW6/A on the basis of which the FIR was registered under
Section 307/34 of Indian Penal Code (IPC), 1860; the accused/the appellant
herein Naval Kishore and his associate Nitin (JCL) were arrested; the weapon of
offence "chenni" like weapon Ex.P3 was handed over by Ct. Rajiv (PW-17)
to SI Alok Bajpai (PW-21) at the police station. Ex.P3 was seized of which SI
Alok Bajpai (PW-21) prepared a sketch (Ex.PW-6/J) and was put into a
pullanda and seized vide seizure memo Ex.PW-6/H. Ex.P3 seized vide seizure
memo Ex.PW-6/H is indicated to have the dimensions of a total length of 24.5
cms.; with a sharp blade with the length of an iron blade of 12.5 cm. the length
of the handle being of 12.cms.
9. At 9.37 a.m. on 12.01.2011 DD no. 27B (Ex.PW21/C) was registered
and the information of death of Mukesh s/o Ratan Singh was given by Ct.
Ravinder, No. 2998/OD from the BSA Hospital and the same was registered at
Police Station S.P. Badli and thereafter Section 302 IPC, 1860 was added. Dr.
Bhim Singh (PW-16) conducted the postmortem on the body of Mukesh, the
postmortem report being Ex.PW16/A and handed over the clothes of Mukesh
and blood taken in a gauze piece to the Investigating Officer Inspector
Dharamvir Singh (PW-23), which were seized vide seizure memo
Ex.PW21/D. The Investigating Officer Inspector Dharamvir Singh (PW-23)
along with SI Alok Bajpai (PW-21) returned from the mortuary to the spot
where the Investigating Officer Inspector Dharamvir Singh (PW-23)
recorded the statements of Somnath Shukla (PW-10), Mahesh, Surender and
Brijesh and of SI Alok Bajpai (PW-21).
10. As per the postmortem report (Ex.PW16/A), the external injuries on the
body of Mukesh (since deceased) were as under : -
(1) Stitched wound, 2 cms in length over left side of chest
in mid clavicular line at the level of 6th rib, situated 6
cm below left nipple, on opening the stitches margins
contuse measuring 2 cm x 1 cm x chest cavity deep.
(2) Stitched wound, 2.5 cm in length over left side of chest
at Anterior axillary line at 3rd Inter-costal space, eight
(8 cm) outer to left nipple, on opening the stitches
margins contused 2.5 cm. x 1 cm x chest cavity deep.
(3) Incised wound, 12 cm x 1.5 cm x 0.5 cm back of left
shoulder.
(4) Incised wound 1 cm x 0.5 cm x 0.2 cm back of left
forearm.
(5) Incised wound, 7 cm x 0.2 cm, present 5 cm below
injury no. 4.
(6) Reddish contusion 6 cm x 0.5 cm over upper part of left
abdomen.
(7) Incised wound, 2 cm x 0.2 cm x 0.1 cm present left side
of face.
(8) Lacerated wound 2 cm x 0.2 cm x 0.5 cm present inner
side of lip.
The internal examination of the body of Mukesh (since deceased) as per
Ex.PW16/A indicated as follows "extra vasation of blood in chest wall below
injury no. 1 and two (2). Injury no. 1 enters the chest cavity by cutting skin,
tissues, muscles, sixth rib, cutting pericardium enters into right ventricle
heart. Cut is approx. 2 cms in length. Pericardium full of blood about 1 ltr.
Injury no. 2 enters into inter-coastal enters into lung from cutting skin,
muscles, pleura, approximate length of wound is about 12 cm. Approx. length
of wound no. 1 is about 7 cms. Pleural cavity full of blood about 1.5 ltrs. All
organs - Pale. Stomach having about 100 ml coffee coloured fluid.". Dr.
Bhim Singh as per Ex.PW16/A opined on the postmortem report that "Death
was due to haemorrhagic shock consequent upon visceral injuries via injury
no. 1 and 2. Injury no. 1 and 2 caused by sharp pointed weapon and the
injuries were sufficient to cause death in ordinary course of nature. All the
injuries were antemortem in nature and caused by sharp pointed weapon
except injuries no. (6) and (8) which were caused by blunt object. Time since
death being (13) hours". The postmortem was conducted on 12.01.2011 at 2.40
p.m. and as per the postmortem report Ex.PW16/A Mukesh expired on
12.01.2011 at 1.35 a.m.
11. The exhibits received pursuant to the postmortem deposited at the
Malkhana were subsequently sent for forensic examination to the FSL, Rohini
vide RC No. 21/21/11 (Ex.PW18/B) on 13.02.2011 through HC Om Prakash
(PW-4), No. 1672/OD, were deposited at the FSL vide receipt Ex.PW-18/C,
which indicates that seven sealed parcels were deposited (five sealed cloth
parcels, one sealed cardboard box and one sealed envelope containing the
exhibits which were examined). The description of the articles contained in the
seven parcels were duly detailed in the FSL report Ex.PW23/C which is as
under : -
Parcel „1‟ : One sealed cloth parcel sealed with the seal of "AB" containing
exhibits „1a‟ and „1b‟ described as clothes of deceased Mukesh.
Exhibit „1a‟ : One cut/torn baniyan having brown stains.
Exhibit „1b‟ : One pants having brown stains.
Parcel „2‟ : One sealed cloths parcel sealed with the seal of "AB"
containing exhibits „2‟.
Exhibit „2‟ : one tool normally used by carpenter.
Parcel „3‟ : One sealed cloth parcel sealed with the seal of "AB" containing
exhibits „3a‟ and „3b‟ described as clothes of accused Naval.
Exhibit „3a‟ : One jeans pants.
Exhibit „3b‟ : One shirt.
Parcel „4‟ : One sealed cloth parcel sealed with the seal of "AB" containing
exhibits „4a‟ and „4b‟ described as clothes of accused Nitin.
Exhibit „4a‟ : One jeans pants.
Exhibit „4b‟ : One shirt.
Parcel „5‟ : One sealed cardboard box parcel sealed with the seal of "SD"
containing exhibits „5a‟ and „5b‟ described as clothes of deceased Mukesh.
Exhibit „5a‟ : One sky blue Shawl.
Exhibit „5b‟ : One dark navy blue shawl.
Parcel „6‟ : One sealed cloth parcel sealed with the seal of "FMT BJRM
HOSPITAL DELHI" containing exhibits „6a‟ and „6b‟ described as clothes of
deceased Mukesh after P.M.
Exhibit „6a‟ : One long underwear.
Exhibit „6b‟ : One lower inner (Pyjami).
Parcel „7‟ : One sealed paper envelope sealed with the seal of "FMT BJRM
HOSPITAL DELHI" containing exhibits „7‟.
Exhibit „7‟ : Brownish gauze cloth piece described as „Blood sample of
deceased Mukesh‟.
12. The forensic analysis conducted by the Biology Division of the FSL,
Rohini indicates that blood was detected on Ex.1a, Ex.1b, Ex.2, Ex.3a, Ex.3b,
Ex.4b, Ex.5a, Ex.5b, Ex.6a, Ex.6b, and Ex.7, though no blood was detected on
Ex.4a and clothes of the co-accused Nitin (JCL). The report FSL Report No.
FSL-2011-0570/B BIO No. 119/11 dated 26.07.2011 of the Biology Division of
the FSL, Rohini (Ex.PW23/D) shows analysis of the blood grouping as under :-
Exhibits Species of Origin ABO Grouping/Remarks
„1a‟ Baniyan Human „O‟ Group
„1b‟ Pants Human „O‟ Group
„2‟ Carpenter‟s Tool Human No reaction
„3a‟ Jeans pants Human „O‟ Group
„3b‟ Shirt Human No reaction
„4b‟ Shirt Human No reaction
„5a‟ Shawl Human No reaction
„5b‟ Shawl Human No reaction
„6a‟ Long underwear Human „O‟ Group
„6b‟ Pyjami Human „O‟ Group
„7‟ Blood stained Human „O‟ Group
gauze
13. The clothes of Mukesh (since deceased) i.e. Ex.1a, Ex.1b, Ex.6a, Ex.6b
and Ex.7 the blood gauze i.e. blood sample of Mukesh (since deceased) all
indicate his blood group to be of the „O‟ group and the jeans pants Ex.3a of the
accused/the appellant herein Naval Kishore also as per Ex.PW23/D bore blood
of human group „O‟ thereon.
14. Though the record of learned Trial Court indicates that the police report
under Section 173 of the Cr.P.C, 1973 was filed with the allegation against both
the accused/the appellant herein Naval Kishore and the co-accused Nitin (JCL)
qua alleged commission of the offence punishable under Section 302/34 of the
IPC, 1860 in relation to which the charge of allegations was framed against both
the accused/the appellant herein Naval Kishore and the co-accused Nitin (JCL)
on 03.06.2011 to which both the accused/the appellant herein Naval Kishore
and the co-accused Nitin (JCL) pleaded not guilty to the charge of allegations
and claimed trial, the records of the learned Trial Court indicate that vide order
dated 26.06.2013 of the Metropolitan Magistrate (North) in view of the order
dated 15.02.2013 of the ASJ-03, Outer Rohini, Delhi directing the conducting of
the inquiry into the age of the accused Nitin (JCL), the co-accused Nitin (JCL)
was declared a juvenile and proceedings in relation to the co-accused Nitin
(JCL) were thus separated.
PROSECUTION EVIDENCE
15. The State examined in the witness box 23 witnesses.
PUBLIC WITNESSES
16. Rahul Singh (PW-6) examined by the State was an eye witness and
nephew of Mukesh (since deceased). This witness, aged 17 years, testified to the
effect that on 11.01.2011 at about 9.30 p.m., he along with his maternal uncle
Mukesh had gone to parchoon shop (grocery shop/dairy shop) of Somnath
Shukla (PW-10) for taking curd where the accused/the appellant herein Naval
Kishore and the co-accused Nitin (JCL) were already present as they had also
come to take curd and when the shopkeeper asked as to what quantity of curd is
required, the accused/the appellant herein Naval Kishore had told the
shopkeeper to give the entire and the altercations commenced to which Mukesh
(since deceased) told them why they were harassing the shopkeeper, on which
the accused/the appellant herein Naval Kishore and the co-accused Nitin (JCL)
started quarreling and abusing with Mukesh/the maternal uncle of Rahul Singh
(PW-6) and that both the accused/the appellant herein Naval Kishore and the
co-accused Nitin (JCL) caught hold of Mukesh and the accused/the appellant
herein Naval Kishore went inside his house and came with one "Chheni" like
weapon (which is used to make hole in wood) and attacked Mukesh with the
said weapon, as a consequence of which Mukesh fell down on the ground due to
the injuries. Rahul Singh (PW-6) testified to the effect that he made a noise
and so did other persons and in the meantime, two policemen reached the spot
and apprehended the accused/the appellant herein Naval Kishore with the
"Chheni" like weapon. Rahul Singh (PW-6) testified to having made the
statement Ex.PW6/A bearing the signatures at point-A thereon and testified to
Ex.PW6/B, the site plan signed by him being prepared by the IO at his instance.
This witness also testified to the seizure of the blood stained clothes of his uncle
Mukesh which had been removed from his person before he was taken to the
hospital as having been seized vide seizure memo Ex.PW6/C. The testimony
of this witness Rahul Singh (PW-6) brings forth that the accused/the appellant
herein Naval Kishore and the co-accused Nitin (JCL) were known to Rahul
Singh (PW-6) from before as they lived in his neighbourhood. Rahul Singh
(PW-6) also testified to the arrest of the two accused by the IO vide arrest
memos Ex.PW6/D and Ex.PW6/E and their personal search having been
conducted.
17. Somnath Shukla (PW-10) the grocer at whose shop the accused/the
appellant herein Naval Kishore and the co-accused Nitin (JCL) (whom
Somnath Shukla (PW-10) recognized as they lived near his house) had gone to
purchase the curd corroborates the prosecution version. Somnath Shukla (PW-
10) further stated that a person Mukesh (since deceased) along with a boy
Rahul Singh (PW-6) were also present at that time of the altercation and
Mukesh (since deceased) told the accused/the appellant herein Naval Kishore
and the co-accused Nitin (JCL) that "Dukaandar Ko Kyo Pareshan Kar Rahe
Ho". Thereafter, Somnath Shukla (PW-10) went inside the shop to bring the
curd and when he came from inside the shop after bringing the curd, he heard a
noise of commotion, just outside his shop and he immediately rushed there and
saw that the accused/the appellant herein Naval Kishore and the co-accused
Nitin (JCL) were grappling with Mukesh and when he asked the accused/the
appellant herein Naval Kishore and the co-accused Nitin (JCL) not to quarrel
and to go away, the accused persons left the said spot and he came back to his
shop. Later on in the morning, he learnt that Mukesh had died but that he did
not know as to how Mukesh had died.
18. Smt. Meena (PW-12) the wife of deceased Mukesh testified to the effect
that on 11.01.2011 at about 9.30 p.m. she was present at her house at A-16,
Rana Park, Siraspur, Delhi and she heard a noise of some quarrel from the gali
and came out of the house and saw that her husband was lying in injured
condition and two boys were held by the police. She recognized the accused/the
appellant herein Naval Kishore and the co-accused Nitin (JCL) as being present
at the spot. Smt. Meena (PW-12) also testified to the effect that her siser-in-law
namely Narangi and many other persons were already present and immediately,
they took Mukesh (since deceased) to Janta Clinic to the doctor and the doctor
asked them to take Mukesh (since deceased) to take to the hospital and
thereafter, Mukesh was then taken to BSA Hospital in the vehicle of Chiku i.e.
their neighbour.
19. Manjeet Rana @ Chiku (PW-9) put forth in the witness box by the
State testified to the effect that he drives a Toyota Qualis bearing registration
no. DL-1CH-3701 and in the year 2011, he had returned from Haridwar at about
10.00 p.m. and had just parked his vehicle, then some persons came along with
the injured and requested him to take the injured in the hospital whereupon he
took the injured to the BSA Hospital in his vehicle along with the sister of the
wife of injured and one boy namely Rahul Singh and that he learnt the name of
the injured as being Mukesh. Manjeet Rana @ Chiku (PW-9) further testified
to the effect that the injured Mukesh was bleeding at that time and cloth was
wrapped around him. He further stated that it took only 10-12 minutes to reach
at the BSA Hospital as he drove his vehicle fast so that the injured Mukesh was
admitted to the hospital immediately.
20. Sh. Brijesh (PW-14) examined by the State testified to having given
information to the police at 100 number by his telephone no. 9278697612 on
11.01.2011 at about 9.30 p.m. when he had found a gathering of public persons
at 4-5 meters from his house.
21. Smt. Narangi (PW-14) wife of Sh. Rattan Singh examined by the State
and sister of Mukesh testified to the effect that on 11.01.2011 at about 9.30 p.m.
when she was present at her house, a girl child came to her and informed her
about the quarrel with her brother Mukesh. She further stated that Rahul Singh
(PW-6) her son had gone along with Mukesh to purchase curd and she then
immediately reached the place where the quarrel was going on at a distance of
20-25 houses away from her house. She further testified to the effect that she
had seen the grand mother and grand father of the co-accused Nitin (JCL)
beating her brother Mukesh and the accused/the appellant herein Naval Kishore
and the co-accused Nitin (JCL) were beating her brother Mukesh. Both of them
were identified by the witness Smt. Narangi (PW-14) as having given beatings
to her brother Mukesh. She further testified to the effect that when she tried to
intervene in the matter, then grand mother and grand father of the accused Nitin
(JCL) pushed her and the co-accused Nitin (JCL) had caught hold of her
brother Mukesh and the accused/the appellant herein Naval Kishore had also
brought „NIHANI‟ (tool of carpenter) from the house of co-accused Nitin (JCL)
and inflicted blow with the said tool in the chest of Mukesh and various other
parts of his body due to which Mukesh fell down on the ground and in the
meantime, police officials reached the spot and they apprehended both the
accused/the appellant herein Naval Kishore and the co-accused Nitin (JCL). She
further testified to the effect that she along with other persons took her brother
Mukesh to the nearby doctor, who advised them to take him to the hospital and
thereafter she shifted her brother Mukesh to DR. BSA Hospital in the vehicle of
Chiku (PW-9) where her brother Mukesh (since deceased) was admitted. She
further stated that due to the injuries, blood oozed from the wounds of her
brother Mukesh (since deceased) and his clothes were stained with blood and
they had removed his clothes and then they wrapped him in a shawl and blanket.
She identified blood stained vest Ex.P1 having a cut mark/torn mark and Ex.P2
pant as being torn of belonging to her brother Mukesh (since deceased).
This witness stated in reply to a Court Query that it took three minutes to
reach the shop of Somnath Shukla (PW-10) from her house by foot. She
testified to having stayed at the hospital till 2.30 - 3.00 a.m. and stated that
Mukesh had expired in her presence at the hospital.
22. Interalia, Smt. Narangi (PW-15) testified to two accused having been
apprehended just near the spot and testified that the accused/the appellant herein
Naval Kishore had given "chenni" blow in the middle of the chest of Mukesh
and whereas Mukesh was caught hold by the co-accused Nitin (JCL) and during
that time the accused/the appellant herein Naval Kishore had gone to bring
"chenni". She further testified that the accused Nitin (JCL) had caught hold of
Mukesh (since deceased) from behind by the hand. She further stated that the
"chenni" had got blood stained but she could not say whether it was soiled with
blood or not. Interalia, she stated that the blood had fallen on the earth as well
as on her clothes but the police did not seize her clothes. She testified that the
"chenni" had an edge on one side. She categorically denied that she was a
planted witness and denied that the accused Nitin (JCL) had not caught hold of
Mukesh (since deceased) and denied that the accused/the appellant herein Naval
Kishore had not inflicted "chenni" injuries to Mukesh (since deceased).
ACCOMPANYING CIRCUMSTANCES OF INVESTIGATION
CONDUCTED
23. The accompanying circumstances of investigation put forth through the
testimony of the police personnel examined as prosecution witnesses are as
under : -
24. PW-1 HC Chander Mohan, No. 122/OD working as Duty Officer on
the intervening night of 11/12.01.2011 at PS S.P. Badli and who was on duty
from 5.00 p.m. to 1.00 a.m., testified to having registered the FIR No. 13/11
under Section 307/34 of Indian Penal Code (IPC), 1860 on the basis of the
rukka endorsed by SI Alok Bajpai (PW-21) brought by HC Om Prakash
(PW-4). Ex.PW1/A was testified by this witness to be the computer generated
copy of FIR and further testified as Ex.PW1/B the endorsement made on the
rukka by him vide DD No. 2A, copy of which DD No. 2A is Ex.PW1/C.
Ex.PW1/D was testified by this witness to be the copy of DD No. 42A dated
11.01.2011 recorded qua information received at 10.13 p.m. through wireless
from Lady Ct. Urmila (PW-3), No. 8192/PCR in relation to a quarrel at H. No.
A2, Rana Park, Siraspur, Veer Bazar, Delhi about which the information was
given to SI Alok Bajpai (PW-21) telephonically for further investigation.
25. PW-2 SI Mahesh Kumar, No. D-460, testified to being posted as a
Draughtsman of the Crime Branch, PHQ, New Delhi and stated that on
23.02.2011 on the request of Inspector Dharamvir Singh (PW-23), SHO PS
SP Badli, he visited the place of occurrence i.e. in front of Shukla General
Store, House No. 2/19, Block A-2, Rana Park, Siraspur, Delhi along with the IO
and at the instance of Ct. Rajiv (PW-17), he took rough notes and
measurements of the spot and on the basis of those documents, he had prepared
the scaled site plan on 17.03.2011 (Ex.PW2/A) and stated that rough notes were
destroyed after preparation of the scaled site plan.
26. PW-3 examined was W/Ct. Urmila, No. 8192/PCR, who testified to
having been posted at the CPCR, PHQ on 11.01.2011 when she was on duty on
channel No. 136 and around 22.10 hours, one information was received by her
from the informant Rakesh Kumar who was calling from the mobile no.
9278697612 in relation to information that at H. No. A2, Rana Park, Siraspur,
Veer Bazar, a quarrel had taken place and she filled up the PCR form, original
of which was testified as Ex.PW3/A. The witness further stated that after filling
up the PCR form, the same was forwarded to the communication cell for
information and action.
27. PW-4 examined was HC Om Prakash, No. 1672/OD, who testified to
having taken six sealed parcels along with two sample seal from the MHC(M)
for depositing the same at the FSL, Rohini, Delhi and vide Road Certificate
deposited the same at FSL Rohini, Delhi and thereafter he returned back to the
PS and handed over the receipted copy of the RC along with acknowledgment
to the MHC(M). The witness further testified that no tampering was done or
was allowed to be done during the time the pullandas remained in his possession
and the same remained intact.
28. PW-8 examined was Dr. Nitin Kumar Bansal, Senior Resident (General
Surgery), Dr. BSA Hospital, Rohini, Delhi, who testified to the effect that one
injured Mukesh was referred to the Surgery Department and he had examined
the said injured Mukesh on the same day and the patient Mukesh (since
deceased) was brought to the casualty with alleged history of Stab Injury and on
examination he found that the patient was gasping and unconscious and his BP
and Pulse were not recordable at that time. On examination, Dr. Nitin Kumar
Bansal (PW-8) found the injured Mukesh (since deceased) having sustained the
following injuries : -
1. Incised wound of size 1 cm x .5 cms with approximately 5
cm depth on left side of the chest
2. Incised wound of size 1 cm x 5 cms over left elbow.
3. Lacerated wound of size 10 cm x .5 cm over left shoulder.
4. Lacerated wound of size 8 cm x .5 cms over anterior
abdominal, wall just below the left subcostal area.
5. Lacerated wound of size .5 cm x .5 cms over upper lip.
PW-8 Dr. Nitin Kumar Bansal also testified as under : -
On chest examination no bony crepitating was found. Bilateral air
entry was equal.
On per-abdominal examination, abdomen was soft. There was no
guarding, rigidity or tenderness found.
Thereafter, the patient was shifted to ICU and the detailed report of Dr.
Nitin Kumar Bansal (PW-8) i.e. Ex.PW-8/A is on the back side of the MLC
Ex.PW7/A.
This witness on being cross examined denied that he had not treated the
injured properly or that the injured died due to excessive internal bleeding or
due to medical negligence.
29. PW-11 examined was Ct. Rajesh, No. 767/OD, who produced the DD
Register for providing the DD No. 60B dated 11.01.2011 in relation to the
departure entry of certain police officials for evening patrolling and evening
picket duty. The witness testified that the said DD was recorded by him at 6.15
p.m., copy of which DD is Ex.PW11/A.
30. PW-17 examined was Ct. Rajiv, NO. 2351/OD, who testified to having
been posted at PS S.P. Badli on 11.01.2011 and sated that he was on duty in his
beat i.e. Rana Park, Village Siraspur, Delhi along with Ct. Sandeep (PW-20)
and at about 10.00 - 10.15 p.m., he heard a message on the wireless set
regarding the quarrel near A-2 Block, Veer Bazar and he alonwith Ct. Sandeep
reached the said spot where they found a huge gathering and heard a noise of
"MAARO MAARO" from the gathering. He stated that he apprehended one
person, whose name was revealed later on as Naval and "at that time he was
having chheni type weapon, which is used to cut the wood and the handle of
the same was of plastic and the other part is of iron". The witness further
stated that the said weapon was smeared with blood. The witness further stated
that Ct. Sandeep (PW-20) apprehended another accused, whose name was
revealed as Nitin (JCL).
Interalia, the witness testified to the effect that the injured Mukesh (since
deceased) was also found at the spot and relatives and some other public
persons took him first to the private hospital and thereafter he was removed to
the government hospital. The witness stated that the injured Mukesh (since
deceased) was bleeding profusely at that time. SI Alok Bajpai (PW-21)
reached at the spot along with HC Om Prakash (PW-4) and thereafter they
proceeded for the Ambedkar Hospital, leaving him and Ct. Sandeep (PW-20)
along with the accused persons at the spot to inquire about the injured at the
hospital. He further stated that thereafter the PCR Van reached at the spot and
there was a huge crowd and public persons were aggressive towards the accused
person. Thus, he along with both the accused persons reached at PS S.P. Badli
in a PCR leaving Ct. Sandeep (PW-20) at the spot. He further stated that he
also took the "chheni" type weapon along with him and thereafter, SI Alok
Bajpai (PW-21) along with HC Om Prakash (PW-4) and the eye witness
Rahul Singh (PW-6) reached at the PS. Ct. Rajiv (PW-17) stated that he
produced the accused/the appellant herein Naval Kishore and the co-accused
Nitin (JCL) to the IO along with the "chheni" type weapon of which the IO
prepared the sketch which is Ex.PW6/J on which he signed. The witness further
testified that the IO also measured the weapon and that the measurement were
written on the sketch, thereafter the said weapon was kept in a cloth parcel and
sealed with the seal of AB and seized vide seizure memo Ex.PW6/H. The
witness further stated that the seal was handed over to HC Om Prakash (PW-
4) after its use and both the accused/the appellant herein Naval Kishore and the
co-accused Nitin (JCL) were arrested vide arrest memos Ex.PW6/D and
Ex.PW6/E respectively which both bear his signatures.
Interalia, the witness further testified to the effect that the clothes worn
by the accused persons were taken and seized vide seizure memo Ex.PW6/K in
relation to the accused/the appellant herein Naval Kishore and vide seizure
memo Ex.PW6/L in relation to the co-accused Nitin (JCL) on both of which he
signed and thereafter, both the accused persons were lodged in the lock-up. The
witness identified the clothes of the accused persons as Ex.P4 & Ex.P5 and
Ex.P6 & Ex.P7 and also identified the "Chheni" like weapon as Ex.P3.
On being cross-examined on behalf of the accused/the appellant herein
Naval Kishore, this witness categorically stated that the incident took place near
the shop of Shukla Dahi Wala and stated that about 100 persons were present at
the spot before they reached at the spot and the persons present there were
shouting against each other and were having a lathi and danda in their hands. He
further stated that he had apprehended two accused persons who were beating
the deceased and that he had apprehended the accused/the appellant herein
Naval Kishore and dispersed the public persons present there. He admitted that
the crowd was shouting at the pitch and calling "MAARO MAARO" and that
there was sufficient light to see the people present there.
31. PW-18 examined was HC Ranbir Singh, NO. 1441/OD, who testified to
the effect that he was posted at PS S.P. Badli on 12.01.2011 and on that day SI
Alok Bajpai (PW-21) had deposited four sealed parcels, sealed with the seal of
AB alognwith one sealed parcel having seal of SD. He further stated that
Inspector Dharamvir Singh (PW-23) had deposited one sealed parcel and one
sealed envelop along with sample seal of FMT BJRM Hospital on the same day
and also stated to the effect that the personal search effects of the accused/the
appellant herein Naval Kishore and co-accused Nitin Kumar (JCL) were also
deposited by SI Alok Bajpai (PW-21) on the same day and that he made entry
in relation to this at serial no. 5568 in register no. 19, copy of which is
Ex.PW18/A.
The witness also testified to having sent seven exhibits in sealed
condition along with two sample seals to the FSL Rohini on 03.02.2011 through
HC Om Prakash (PW-4) vide RC No. 21/21/11 for depositing the same there
vide entry Ex.PW18/A and stated that the copy of RC was Ex.PW18/B. The
witness further stated that after depositing the exhibits, HC Om Prakash (PW-
4) returned back and handed over the acknowledgement of the same, copy of
which is Ex.PW18/C.
32. PW-20 examined was Ct. Sandeep, No. 2356 (OD), who testified to the
effect that on 11.01.2011 he was posted as a constable at PS S.P. Badli and on
that day at about 10.00 - 10.15 p.m. he along with Ct. Rajiv (PW-17) were
present in their beat of Rana Park, Siraspur and received an information on the
wireless set regarding the quarrel near Veer Bazar and on hearing this
information, he along with Ct. Rajiv (PW-17) reached the place where public
persons were present.
Interalia, Ct. Sandeep (PW-20) stated that they saw that two persons
were giving beatings to one person and one of the said two persons had a
weapon, which is used to pierce wood (lakdi me chhed karne wala auzar) and
the other person was bare handed. This witness testified that he apprehended the
boy who was bare handed and Ct. Rajiv (PW-17) apprehended the said boy
who was having the above said weapon in his hand and that the name of the
person to whom the above said two boys were giving beatings, was revealed as
Mukesh (since deceased) whose shirt was smeared with blood from the front
side and he was removed to the hospital by some public person on his private
vehicle. This witness testified to the effect that SI Alok Bajpai (PW-21) and
HC Om Prakash (PW-4) had come to the spot after 15 minutes and they were
apprised of the occurrence and they had gone to the hospital after leaving them
and the accused at the spot and after sometime, the PCR Van came there and Ct.
Rajeev took both the accused persons in the PCR van to the police station and
he remained at the spot. Thereafter, SI Alok Bajpai (PW-21) came to the spot
and HC Om Prakash (PW-4) also came and SI Alok Bajpai (PW-21) took
into possession the wearing clothes of Mukesh (since deceased) from Ratan
Singh (PW-19), father of Mukesh which were sealed after preparing a cloth
pullanda with the seal of „AB‟.
Interalia, this witness testified to the effect that Ct. Rajiv (PW-17) had
produced Ex.P3 i.e. the "Chheni" like weapon which was recovered from the
possession of the accused/the appellant herein Naval Kishore to the IO and
testified that Ex.PW6/J was a sketch of the same, which was kept in a white
cloth pullanda by the IO and sealed with the seal of „AB‟ vide seizure memo
Ex.PW6/H on which he too signed and the seal after used was handed over to
HC Om Prakash (PW-4). This witness identified the clothes of the accused/the
appellant herein Naval Kishore as Ex.P4 and Ex.P5 and that of the co-accused
Nitin (JCL) as Ex.P6 and Ex.P7 and the identified the clothes of Mukesh (since
deceased) as Ex.P1, Ex.P2, Ex.P8, Ex.P9, Ex.P10 and Ex.P11. This witness
also testified that a huge crowd had collected at the spot and he heard the voices
of abusing each other amongst accused persons, crowd and Mukesh (since
deceased) and that the crowd had lathies and dandas in their hands. The
"chheni" was testified to have blood on it when it was snatched from the hand
of the accused/the appellant herein Naval Kishore and the Ct. Rajiv (PW-17)
had taken the blood stained "chheni" from the hand of the accused/the
appellant herein Naval Kishore.
33. PW-21 examined in the witness box was SI Alok Bajpai, No. D-1757 the
initial Investigating Officer of the case, who testified to the effect that on
11.01.2011, he was posted at PS S.P. Badli and on that day, he had received DD
No. 42A on route, copy of which is Ex.PW1/B and that HC Om Prakash
(PW-4) was with him and he along with him reached at the place of incident i.e.
Near A-2, Rana Park, Siraspur, Delhi where Ct. Sandeep (PW-20) produced
the accused/the appellant herein Naval Kishore along with the weapon of
offence. This witness further testified that it was informed that the injured was
shifted to the Ambedkar Hospital by the neighbours in a private vehicle. He left
both the accused in the custody of Ct. Sandeep (PW-20) and Ct. Rajiv (PW-
17) at the spot and himself with HC Om Prakash (PW-4) went to the hospital
where the injured Mukesh (since deceased) was found admitted in the ICU vide
MLC No. 227/11 and that as per the opinion of the doctor, the injured Mukesh
(since deceased) was unfit for statement. He further stated that he obtained the
MLC and also met the eye witness Rahul Singh (PW-6) in the hospital and
recorded his statement Ex.PW6/A which was read over to him and thereafter,
the witness Rahul Singh (PW-6) signed the same. He made endorsement on the
statement of Rahul Singh (PW-6) and prepared the rukka which is Ex.PW21/A
and handed over the same to HC Om Prakash (PW-4) for registration of the
FIR at police station. He also instructed him to return at the spot after
registration of the FIR.
SI Alok Bajpai (PW-21) testified to having recorded the statements of
Smt. Narangi (PW-15) sister of the injured Mukesh (since deceased), Smt.
Meena (PW-12) wife of Mukesh (since deceased) and two public witnesses
namely Manjeet Rana @ Chiku (PW-9) and Jai Bhagwan and stated that the
doctor had given him one sealed carton along with the sample seal of SD which
he had seized vide seizure memo Ex.PW21/B on which he signed at point-X.
This witness further testified to the effect that he along with the eye
witness Rahul Singh (PW-6) reached at the spot where Ct. Sandeep (PW-20)
was found present and he informed that Ct. Rajiv (PW-17) had taken both the
accused/the appellant herein Naval Kishore and the co-accused Nitin to the
police station in a PCR Van as the crowd was gathered and they became furious
and in the meanwhile, HC Om Prakash (PW-4) also reached the spot and
handed over the rukka and copy of FIR to him and he prepared the site plan
Ex.PW6/B on the pointing out of the Rahul Singh (PW-6). This witness
further stated that Ratan Singh (PW-19) met him at the spot and he produced
the blood stained clothes of the injured Mukesh (since deceased) and told that
the said clothes were worn by the injured at the time of the incident and which
were removed when the injured was taken to the hospital in the vehicle. The
said blood stained clothes i.e. vest & cream coloured pant were kept in a cloth
parcel and sealed with the seal of AB and seized vide seizure memo Ex.PW6/C
on which he is stated to have signed at point-X.
This witness also testified to having recorded the statement of Ratan
Singh (PW-19) and of Rahul Singh (PW-6) and stated that thereafter he along
with HC Om Prakash (PW-4) returned to the police station
This witness further testified to the effect that at the police station, Ct.
Rajiv (PW-17) produced the weapon of the offence i.e. Chheni like tool which
is used for making holes in the wood and he took the measurement of the
weapon of offence and prepared the sketch of the same, Ex.PW6/J on which he
signed at point X and that the weapon of offence was kept in a cloth parcel and
sealed with the seal of AB and seized vide seizure memo Ex.PW6/H on which
he signed at point X. He further stated that both the accused/the appellant herein
Naval Kishore and the co-accused Nitin were arrested vide arrest memo
Ex.PW6/D and Ex.PW6/E respectively.
Interalia, PW-21 corroborated the prosecution version set forth under
Section 173 of the Cr.P.C, 1973. He also stated that an information was received
vide DD no. 27-B dated 21.01.2011 (copy of which is Ex.PW21/C) at about
9.35 - 9.40 a.m. that the injured Mukesh had expired in the hospital. This
witness further testified that the further investigation was taken over by the
SHO Inspector Dharamvir Singh Tomar (PW-23) and that on 12.01.2011, he
joined the investigation with Inspector Dharamvir Singh (PW-23) and
reached the Babu Jagjiwan Ram Hospital with him and the postmortem on the
dead body of Mukesh was conducted and prior to the postmortem, the dead
body was identified by Ratan Singh (PW-19) and Bani Singh (PW-5)
respectively vide identification memos Ex.PW19/A and Ex.PW5/A. He further
testified to the effect that after the postmortem, the dead body was handed over
to the relative of the deceased and after the postmortem the doctor had given the
two exhibits along with the sample seal which were seized by the Investigating
Officer Inspector Dharamvir Singh (PW-23) vide seizure memo Ex.PW21/D
and from the mortuary, BJRM Hospital, he along with Inspector Dharamvir
Singh (PW-23) returned to the spot where the IO prepared the statement of
Somnath Shukla (PW-10), Mahesh s/o Suraj Prasad, Surender s/o Jamna
Prasad and Brijesh.
Interalia, the witness identified the "Chheni" like weapon as Ex.P3 and
clothes of the accused/the appellant herein Naval Kishore as Ex.P4 and Ex.P5
and clothes of the co-accused Nitin as Ex.P6 and Ex.P7 and testified to the
blood stained clothes of Mukesh (since deceased) which were produced by
Ratan Singh (PW-19) i.e. one vest (having cut mark/torn mark) Ex.P1 and one
cream colour pant Ex.P2.
34. PW-22 examined was Dr. Sandeep Seotra, SR (Anaesthesia), Baba Saheb
Ambedkar Hospital, who identified the signatures and hand writing of Dr.
Vikram Singh, SR (Anaesthesia) in the casualty, who had examined the patient
Mukesh vide MLC Ex.PW7/A. As per the report, the patient was immediately
intubated with 8.0 mm cuffed ETT and advance life support was given by the
team and after that patient revived back and thereafter he was shifted to ICU on
AMBU bag for further management.
35. PW-23 examined in the witness box was Inspector Dharamvir Singh, the
second Investigating Officer of the case, who testified to the effect that on
12.01.2011, he was posted as Inspector at PS S.P. Badli and on receiving the
information from BSA Hospital at about 9.37 a.m. regarding the death of
Mukesh, which was recorded vide DD No. 27B Ex.PW21/C which DD was
marked to him, the dead body was removed to the mortuary of the BJRM
hospital where the postmortem of the dead body was conducted. Inspector
Dharamvir Singh (PW-23) testified to Ex.PW23/A being his request to
perform the postmortem vide form no. 25.35(i)(B) Ex.PW23/B. The witness
also testified to having handed over the dead body of the deceased to his relative
Sh. Ratan Singh vide his statement Ex.PW19/A after the postmortem.
Inspector Dharamvir Singh (PW-23) also testified to the effect that the
exhibits given by the doctor were seized vide memo Ex.PW21/D and thereafter
the same were deposited with the malkhana and later on all the exhibits were
sent to FSL Rohini for examination. Inspector Dharamvir Singh (PW-23) also
stated that the scaled site plan Ex.PW2/A was prepared at the instance of Ct.
Rajiv (PW-17) and he had collected the CFSL result Ex.PW23/C and
Ex.PW23/D.
STATEMENT UNDER SECTION 313 CR.P.C., 1973 OF THE
ACCUSED/THE APPELLANT HEREIN NAVAL KISHORE
36. The accused/the appellant herein Naval Kishore through his statement
under Section 313 Cr.P.C. 1973 denied the incriminating evidence against him
but stated that he was residing at Jeevan Park, Siraspur. The accused/the
appellant herein Naval Kishore denied having visited the shop of Somnath
Shukla (PW-10) to purchase the curd and rather stated that he was present at
some other shop which was situated at a distance from the said shop of the
grocery and he heard a noise and found that some people were quarreling with
each other and there was no conversation between him and Somnath Shukla
(PW-10). The accused further stated that he knew Nitin (co-accused JCL) and
further stated that he had been picked up by the police and denied having in his
possession any "Chheni" like weapon or that he had given beating to Mukesh
(since deceased). He further stated that he along with the co-accused Nitin
(JCL) had been taken to the police station and after asking their names and
addresses they were allowed to go from there. He further stated that he was
called at the police station and the IO had asked him to bring clothes within 10
minutes and he went to his house and brought the afore said clothes and handed
over the same to the IO and at that time certain blank papers were got signed
from him by the police and that likewise the co-accused Nitin (JCL) was also
asked to bring the clothes which were seized by the police.
37. On being confronted with Ex.PW23/C, the FSL report of the Biology
Division the accused responded "I DO NOT KNOW". He further stated that it
was a false case registered against him and he did not know why he had been
implicated in the present case, and that he is innocent and his entire life has
been destroyed and that he did not commit any crime. He further stated that the
deceased Mukesh was not known to him and that he did not know as to who had
committed the murder and the accused/the appellant herein Naval Kishore had
nothing to do with the present matter. He further stated that his only mistake
was that on hearing the noise, he went to the spot.
CONTENTIONS OF THE ACCUSED/THE APPELLANT HEREIN NAVAL
KISHORE
38. Through the appeal and through the submissions made on behalf of the
appellant, it was submitted by the learned Amicus Curiae for the accused/the
appellant herein Naval Kishore that the prosecution has been unable to establish
the allegations levelled against the accused/the appellant herein Naval Kishore
of the commission of any offence much less the murder of the deceased
Mukesh.
39. It was submitted on behalf of the accused/the appellant herein Naval
Kishore that there was no history of any enmity and that as per the prosecution
case on 11.01.2011 at about 9.30 p.m. the accused/the appellant herein Naval
Kishore along with the co-accused Nitin (JCL) had visited the grocery shop of
one Somnath Shukla (PW-10) and that the accused/the appellant herein Naval
Kishore and his associate Nitin (JCL) had an altercation with PW-10 on a trivial
matter in which the deceased had intervened. It was further stated on behalf of
the accused/the appellant herein Naval Kishore that the place of occurrence is a
thickly populated residential area and that the place of occurrence had not been
established beyond a reasonable doubt and that the first DD entry no. 21A was
recorded at about 10.13 p.m and that there was delay of around 45 minutes in
reporting the incident to the police and that there was delay in giving medical
aid to the deceased Mukesh.
40. It was further submitted on behalf of the the accused/the appellant herein
Naval Kishore that the testimony of Rahul Singh (PW-6), nephew of the
deceased Mukesh corroborated only the aspect of arguments but there was no
corroborative evidence led on the record of any commission of any act by the
accused/the appellant herein Naval Kishore (with "chhenni" like weapon) nor
any corroborative medical evidence and that the place of occurrence had also
not been established as per the site plan.
41. Interalia, it was submitted on behalf of the accused/the appellant herein
Naval Kishore that the weapon of offence as per the prosecution version
allegedly belonged to a carpenter PW-13 and that the said carpenter had stated
that the Ex.P3 did not belong to him and that the same detracts from the
veracity of the prosecution version.
42. It was further submitted on behalf of the accused/the appellant herein
Naval Kishore that though there was blood found on the "chheni" like weapon
but there was no reaction as per the serological examination report and thus it
cannot be held to have been established that the said weapon of offence Ex.P3
was in fact the weapon with which the deceased Mukesh had been assaulted
allegedly by the accused/the appellant herein Naval Kishore.
43. Inter alia, it was submitted on behalf of the accused/the appellant herein
Naval Kishore that there was no photograph of the spot and that there was no
compliance of Section 157 Cr.P.C. 1973 and that there was no independent
witness examined regarding their presence at the spot.
44. It was thus submitted on behalf of the accused/the appellant herein Naval
Kishore that the accused/the appellant herein Naval Kishore was not guilty of
the commission of any pre meditated murder or much less of any offence
whatsoever.
ALTERNATIVE PLEA ON BEHALF OF THE ACCUSED / THE
APPELLANT HEREIN NAVAL KISHORE
45. The alternative submission made on behalf of the accused/the appellant
herein Naval Kishore was to the effect that the occurrence was a result of a
sudden quarrel in the heat of passion and that in which injury was also caused to
the accused/the appellant herein Naval Kishore.
46. Interalia, it was submitted on behalf of the accused that the "Chheni"
like weapon Ex.P3 could not be said to be a deadly weapon which could cause
murder and that the injuries were not inflicted with pre-meditated intent and
knowledge and there was no intention to cause death and that no knowledge
could be attributed to the accused/the appellant herein Naval Kishore that he
knew that his act was so imminently dangerous that it would in all probability
cause the death or such bodily injury as was likely to cause death and that the
offence if held to be committed would at the most fall within the ambit of
Section 304 Part II of the IPC 1860 and that the accused/the appellant herein
Naval Kishore deserved leniency.
47. It was further submitted on behalf of the accused/the appellant herein
Naval Kishore that the accused/the appellant herein Naval Kishore belongs to a
humble family and he was eldest of five siblings and was in first year of the ITI
(motor mechanic diploma) and the accused/the appellant herein Naval Kishore
bears clean antecedents and had no criminal record and had undergone more
than 6 years of incarceration.
CONTENTIONS OF THE STATE
48. On behalf of State it was contended by the learned Addl. Public
Prosecutor Ms. Aashaa Tiwari that all allegations levelled against the
accused/the appellant herein Naval Kishore of the commission of murder stood
wholly established in as much as the testimonies of the eye-witness Rahul
Singh (PW-6), Sh. Somnath Shukla (PW-10) the curd grocer, Ct. Rajiv (PW-
17) and Ct.Sandeep (PW-20) and the accompanying testimonies of Smt.
Meena (PW-12), Smt. Narangi (PW-15), Sh. Ratan Singh (PW-19) and Sh.
Manjeet Rana @ Chiku (PW-9) established that the accused/the appellant
herein Nawal Kishore had assaulted Mukesh (since deceased) on 11.01.2011 at
about 9:30 PM at the shop of Somnath Shukla (PW-10) situated at A-2/19,
Rana Park, Sirspur, Delhi with a sharp edged Chenni (carpenter‟s instrument
utilized for making holes in the wood). It was also contended that the blood
smeared weapon of offence Ex.P3 i.e. Chenni in the hand of the accused/the
appellant herein Nawal Kishore and the accused/the appellant herein Nawal
Kishore and the co-accused Nitin (JCL) were apprehended red handed by
Ct.Rajiv (PW-17) whilst the co-accused Nitin (JCL) who had held the injured
Mukesh (since deceased) at the time of the assault by the accused/the appellant
herein Nawal Kishore had been apprehended by Ct. Sandeep (PW-20). It was
further submitted on behalf of the State that the circumstances of the
commission of the offence were established through the testimonies of
Somnath Shukla (PW-10) and the eye-witness Rahul Singh (PW-6), the
nephew of the injured Mukesh (since deceased).
49. It was also submitted on behalf of the State that the circumstances of Sh.
Brijesh (PW-14) having telephonically informed the police at No. 100 by his
mobile no. 9278697612 about the incident on 11.01.2011 at about 9:30 PM
which information was received by Ct.Urmila (PW-3) posted at the PCR/PHQ
received from an informant named Rakesh Kumar from the same number
9278697612 which was in relation to a quarrel having taken place at H. No. A-
2, Rana Park, Delhi for which she filled up the PCR form Ex.PW-3/A
whereupon Ct. Rajiv (PW-17) and Ct. Sandeep (PW-20) had reached the spot
on having heard the message of the quarrel and had apprehended the
accused/the appellant herein Naval Kishore with the Chenni type weapon and
the co-accused Nitin (JCL) and the factum that the injured was bleeding
profusely had been taken to the hospital were unrebuttedly established.
50. It was submitted further on behalf of the State that the testimony of SI
Alok Bajpai (PW-21), the first Investigating Officer of the case who had
recorded the statement of the (PW-6) Rahul Singh, the eye-witness, the
testimonies of PW-7 Dr.Kuldeep Singh, CMO, who examined the patient
along with Dr. Ashwani Rathore, Junior Resident of the Casualty at the BSA
Hospital on 11.01.2011 at about 11:00 PM and the testimony of (PW-8)
Dr.Nitin Kumar Bansal, Senior Resident, General Surgery who examined the
injured and gave his detailed report Ex.PW-8/A indicated that there was an
incised wound on the left side of the chest, incised wound over the left elbow,
lacerated wound over the left shoulder, lacerated wound over the anterior
abdominal wall just below the left sub-costal region of a size of 8X.5 cm ,
lacerated wound of the size .5X.5 cm over upper lip, lacerated wound of the size
1X.5 cm over lower lip in relation to which Dr. Kuldeep Singh (PW-7) had
categorically testified in his testimony that the injuries No. 3 and 4 i.e. lacerated
wound of size 10X.5 cm over left shoulder, lacerated wound of size of 8X.5 cm
over anterior abdomen wall just below left sub-costal region were not possible
due to fall on the concrete road, which injuries as testified by Dr.Bhim Singh
(PW-16), MD, Forensic Medicine Incharge, Mortuary, Babu Jagjivan
Memorail Hospital, who conducted the post-mortem on the body of the
deceased Mukesh on 12.01.2011 whereby he made reference to the external
injuries detailed in post-mortem report and categorically testified to the effect
that death was due to hemorrhagic shock consequent upon visceral via injuries
No. 1 and 2 and that injuries No. 1 and 2 were caused by a sharp pointed
weapon and were sufficient to cause death in the ordinary course of nature and
that all the injuries i.e. injury nos. 6 and 8 were ante-mortem in nature caused by
the sharp pointed weapon. Furthermore, Dr.Bhim Singh on seeing Ex. P-3 has
stated that all the injuries except injuries No. 6 and 8 could be caused by the
weapon Ex.P-3 shown to him. The injury No. 6 and 8 are indicated to have
been reddish contusion 6 cm x 0.5 cm on upper part of left abdomen, and
lacerated wound 2 cm x 0.2 cm x 0.5 cm present inner side of lip. It is thus
submitted on behalf of the State that the injuries sustained by the injured (since
deceased) had been caused due to the injuries inflicted with a sharp edged
weapon on the injured (since deceased) especially the following injuries : -
(1) Stitched wound, 2 cm length over left side of chest in
mid clavicular line at the level of sixth rib, situated 6 cm
below left nipple, on opening the stitches margins
contused measuring 2 cm x 1 cm x chest cavity deep.
(2) Stitched wound 2.5 cm in length over left side of
chest, at anterior axillary line at third inter-costal space,
8 cm outer to left nipple, on opening the stitches margins
contused 2.5 cm x 1 cm x chest cavity deep, which was
seen in the ordinary course of nature.
It was submitted on behalf of the State that injuries No. 1 and 2 were
clearly inflicted with pre-meditated intent and knowledge that the injuries being
inflicted were so imminently dangerous that they could in all probability cause
the death or such bodily injury as was likely to cause death and that these
injuries inflicted and act had been committed by the accused/the appellant
herein Naval Kishore without any excuse for causing death or such injuries and
it was thus submitted on behalf of the State that the accused/the appellant herein
Naval Kishore was liable for the commission of the offence punishable under
Section 302 read with Section 34 of the IPC, 1860 and that he deserves no
leniency whatsoever.
ANALYSIS
51. A considered perusal of the available record and the testimonies on
record of the eye-witness Rahul Singh (PW-6) i.e. the nephew of the injured
Mukesh (since deceased) and the prosecution version set forth in the FIR
establishes that the incident resulted out of a sudden quarrel. This is so in as
much as testified by Rahul Singh (PW-6) that he along with his maternal uncle
Mukesh (since deceased) had gone to the Parchoon shop of Somnath Shukla
(PW-10) for taking curd with the accused/the appellant herein Naval Kishore
and the co-accused Nitin (JCL) were already present and were also taking curd
and that when the accused/the appellant herein Naval Kishore and the co-
accused Nitin (JCL) were taking curd, the shopkeeper asked what quantity of
curd was required to which the accused/the appellant herein Naval Kishore told
the shopkeeper "jitna tere paas hai, poora de de", to which the shopkeeper told
them "itna dahi kya karoge" then Nitin (JCL) said "naale me phekenge,
tumhe isse kya matlab", on which the maternal uncle of Rahul i.e. Mukesh
(since deceased) told him that they were harassing the shopkeeper on which the
accused/the appellant herein Naval Kishore and the co-accused Nitin (JCL)
started quarrelling and abusing Mukesh and the co-accused Nitin (JCL) caught
hold of Mukesh (since deceased) and the accused/the appellant herein Naval
Kishore went inside his house and came along with a Chenni like weapon (used
to make hole in wood) and attacked Mukesh with the said weapon due to which
injuries Mukesh fell down on the ground and in the meantime a noise was made
by Rahul and other persons and two police officers reached and apprehended
the accused/the appellant herein Naval Kishore and the co-accused Nitin (JCL)
at the spot along with the weapon whereafter Mukesh was shifted to the BSA
Hospital with the help of their neighbor in his vehicle.
52. In his cross-examination (PW-6) Rahul Singh has been unable to
state whether or not the injured Mukesh (since deceased) had taken drinks
on that day. Furthermore, in reply to a query put to the witness Rahul to the
effect :
"I put it to you that when accused Naval Kishore left the place of
incident, you and your Mama also started moving from the said place?
it was responded by the Rahul: Answer: It is correct. Vol. but we had only
reached till the house of Nitin, where Naval had gone.
53. Furthermore, the witness Rahul Singh (PW-6) stated " It is correct
that in the quarrel my Mama had also bitten the finger of the accused/the
appellant herein Naval Kishore.
54. The statements of Ct.Rajiv (PW-17) and Ct. Sandeep (PW-20) who first
reached the spot bring forth that there was a large gathering at the spot with
heated tempers with people shouting maro maro and the cross-examination of
Ct.Rajiv (PW-17) shows that persons present were shouting at each other and
had lathis and dandas in their hand. The evidence led by the prosecution
through the testimony of Rahul Singh (PW-6) and Ct. Rajiv (PW-17), Ct.
Sandeep (PW-20) and Somnath Shukla (PW-10) itself brings forth that the
assault committed on Mukesh (since deceased) was without pre-meditation in a
sudden fight in the heat of passion upon a sudden quarrel wherein there is
nothing to indicate that the offender accused/the appellant herein Naval Kishore
had taken undue advantage or acted in a cruel or unusual manner and the
offence thus falls within the ambit of Exception 4 to Section 300 of the IPC,
1860 which provides as follows:
"Exception 4-Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel
and without the offender having taken undue advantage or acted in a cruel or
unusual manner. Explanation.--It is immaterial in such cases which party offers
the provocation or commits the first assault"
55. It is essential to observe that the Exception 4 to Section 300 categorically
lays down that it is immaterial in such cases; which party offers the provocation
or commits the first assault.
VERDICTS RELIED UPON ON BEHLAF OF THE APPELLANT
56. On behalf of the accused/the appellant herein Naval Kishore reliance was
placed, inter alia, on the verdict of the Hon‟ble Supreme Court in Ankush
Shivaji Gaikwad vs. State of Maharashtra JT 2013 (7) SC 26 to contend that
the case falls within the ambit of Exception 4 to Section 300 of the IPC, 1860
and that the accused/the appellant herein Naval Kishore was if held to be guilty,
was guilty only of culpable homicide not amounting to murder as the act was
not pre-meditated and was a result of a sudden fight and that the offence fell
within the ambit of Section 304 Part-II of the IPC, 1860 for which, four
requirements were only required i.e. (i) it was a sudden fight; (ii) there is no
premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant
had not taken any undue advantage or acted in a cruel manner.
57. It was submitted further on behalf of the appellant that the number of
wounds of the injuries inflicted per se does not make an act culpable under
Section 300 of the IPC, 1860. Reliance was placed on behalf of the appellant on
the verdict of the Hon‟ble Supreme Court in the case of Surinder Kumar vs.
Union Territory, Chandigarh 1989 (2) SCC 217, to the effect:
"7. To invoke this exception four requirements
must be satisfied, namely, (i) it was a sudden fight (ii)
there is no premeditation; (iii) the act was done in a
heat of passion; and (iv)the assailant had not taken
any undue advantage or acted in a cruel manner. The
cause of the quarrel is not relevant nor is it relevant
who offered the provocation or started the assault.
The number of wounds caused during the occurrence
is not a decisive factor but what is important is that
the occurrence must have been sudden and
unpremeditated and the offender must have acted in a
fit of anger. Of course, the offender must not have
taken any undue advantage or acted in a cruel
manner. Where, on a sudden quarrel, a person in the
heat of the moment picks up a weapon which is handy
and causes injuries, one of which proves fatal, he
would be entitled to the benefit of this exception
provided he has not acted cruelly. In the present case,
the deceased and PW-2 had entered the room
occupied by Sikander Lal and his family members and
had demanded vacant possession of the kitchen.
When they found that the appellant was disinclined to
hand over possession of the kitchen, PW-2 quarrelled
and uttered filthy abuses in the presence of the
appellant's sister. On the appellant asking him to
desist he threatened to lock up the kitchen by
removing the utensils, etc., and that led to a heated
argument between the appellant on the one side and
PW-2 and his deceased brother on the other. In the
course of this heated argument it is the appellant's
case that PW 2 took out a knife from his pant pocket.
This part of the applicant's case seems to be probable
having regard to the antecedents of PW 2. It is on
record that PW 2 was convicted at Narnaul on two
occasions under Section 411, IPC and his name was
registered as a bad character at the local police
station. It was presumably because of this reason that
he had shifted from Narnaul to Chandigarh a couple
of years back and had started to live in the premises
rented by PW 4. When the appellant found that PW 2
had taken out a pen knife from his pocket he went into
the adjoining kitchen and returned with a knife. From
the simple injury caused to PW 2 it would appear that
PW 2 was not an easy target. That is why the learned
Sessions Judge rejected the case that Amrit Lal had
held PW 2 to facilitate an attack on him by the
appellant. It further seems that thereafter a scuffle
must have ensued on Nitya Nand intervening to help
his brother PW 2 in which two minor injuries were
suffered by the deceased on the left arm before the
fatal blow was inflicted on the left flank at the level of
the 5th rib about 2" below the nipple- It may
incidentally be mentioned that the Trial Court came to
the conclusion that the injury found on the neck of PW
2 was a self inflicted wound and had therefore
acquitted the appellant of the charge under Section
307, IPC, against which no appeal was carried. We
have, however, proceeded to examine this matter on
the premise that PW 2 sustained the injury in the
course of the incident. From the above facts, it clearly
emerges that after PW 2 and his deceased brother
entered the room of the appellant and uttered filthy
abuses in the presence of the latter's sister, tempers
ran high and on PW 2 taking out a pen knife the
appellant picked up the knife from the kitchen, ran
towards PW 2 and inflicted a simple injury on his
neck. It would be reasonable to infer that the deceased
must have intervened on the side of his brother PW 2
and in the course of the scuffle he received injuries,
one of which proved fatal. Taking an overall view of
the incident we are inclined to think that the appellant
was entitled to the benefit of the exception relied upon.
The High Court refused to grant him that benefit on
the ground that he had acted in a cruel manner but
we do not think that merely because three injuries
were caused to the deceased it could be said that he
had acted in a cruel and unusual manner. Under
these circumstances, we think it proper to convict the
accused under Section 304, Part I, IPC and direct him
to suffer rigorous imprisonment for 7 years. In the
result, this appeal partly succeeds. The order of
conviction and sentence passed under Section
302, IPC is set aside and the fine, if paid, is directed
to be refunded. The appellant is convicted under
Section 304 Part I, IPC and is directed to suffer
rigorous imprisonment for 7 years."
(emphasis supplied)
58. It was also contended on behalf of the appellant that where Exception 4 to
Section 300 IPC, 1860 operates even if injuries inflicted are on the vital part of
the body yet the benefit of Exception 4 to Section 300 IPC, 1860 has to be
granted and reliance thus was placed on behalf of the appellant on the verdict of
the Supreme Court in Buddhu Singh and Ors. vs. State of Bihar (Now
Jharkhand) (2011) 14 SCC 471 in which case the injury inflicted by an axe
blow on the head of the deceased had resulted in the fracture of the frontal bone
and death was almost instantaneous though in the hospital but the incident had
taken place suddenly without there being any previous history qua which it was
held by the Supreme Court to the effect:
"8. Considering the overall material, we are of the view that
there is hardly anything on record which can be said against
the accused Ledwa Singh and Balchand Singh though the
common intention on their part could be attributed since
they had done the over act of grappling with and pinning
down the deceased. Now, seeing his father and brother had
been grappling with the deceased, the accused Buddhu Singh
dealt an axe blow which could not be said to be intended
towards the head. It could have landed anywhere. However,
it landed on the head of the deceased. Therefore, the element
of intention is ruled out. Again the defence raised on behalf
of the accused that there could not have been the intention to
commit the murder of the deceased is justified by the fact
that the accused Buddhu Singh did not repeat the assault.
Under the circumstances, we feel that the prosecution has
been able to establish the guilt of the accused persons under
Section 304 Part II I.P.C.
We, accordingly, modify the finding of the High Court and
convert the conviction of the accused from Section 302 IPC
to Section 304 Part II IPC and sentence each of them to the
period already undergone. Accused Buddhu Singh is stated
to be in jail for the last five years whereas other accused
persons namely; Ledwa Sngh and Balchand Singh are stated
to be in jail for the last ten years. They be released from the
jail forthwith unless they are required in any other case"
59. Reliance was also placed on behalf of the appellant in relation to this
aspect on the verdict of the Supreme Court in State of Madhya Pradesh vs.
Ghanshyam Singh (2003) 7 Scale 387, wherein it was held that where there
was a free fight between the parties, the act of using a fire arm and firing two
shots by the accused fell under the Exception 4 to Section 300 and was not
relatable to Section 302 of the IPC, 1860 and held that the said offence fell
within the ambit of Section 304 Part-I of the 1860.
APPLICABILITY OF SECTION 304 PART-I OR PART-II ?
60. On behalf of the State it was strongly contended that even if the offence
falls within the ambit of Exception 4 to Section 300 of the IPC 1860 and even if
it be held that the death of Mukesh was held to be only by commission of
offence of culpable homicide not amounting to murder in terms of Section 304
of the IPC 1860, the offence would fall within the ambit of Section 304 Part-I of
the IPC and not Section 304 Part-II of the IPC as sought to be contended on
behalf of the appellant. Section 304 of the IPC 1860 prescribed as follows:
"304. Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act
by which the death is caused is done with the intention of
causing death, or of causing such bodily injury as is likely to
cause death;
or with imprisonment of either description for a term which
may extend to ten years, or with fine, or with both, if the act
is done with the knowledge that it is likely to cause death,
but without any intention to cause death, or to cause such
bodily injury as is likely to cause death."
61. On behalf of the appellant reliance was placed on the verdict of the
Supreme Court in State of Uttar Pradesh vs. Inderjeet @ Sukhatha 2000 (7)
SCC 249 to contend that a carpenter‟s tool cannot be stated to be a deadly
weapon capable of being utilized to cause murder. The verdict of the Supreme
Court in Surinder Kumar vs. Union Territory, Chandigarh JT (1989) (1) SC
505, too lays down that the number of wounds caused during the occurrence is
not a decisive factor, nor is the infliction of injury on the vital parts of the
injured/deceased per se sufficient to detract from applicability of Exception 4 to
Section 300 of the IPC in the circumstances of the case for as laid down in
Buddhu Singh and Ors. vs. State of Bihar (Now Jharkhand) (2011) 14 SCC
471 where the axe blow was inflicted on the head of the deceased on a very
vital part resulting in the fracture of the frontal bone and death was almost
instantaneous but the incident had taken place suddenly without there being any
previous history to which it was held that the prosecution had been able to
establish the guilt of the accused only under Section 304 Part-II of the IPC,
1860 and that where a blow was inflicted on the vital part of the body though
not intended to, the same would not suffice to hold the accused guilty of
culpable homicide amounting to murder.
62. It has been laid down by the Supreme Court in Pulicherla Nagaraju @
Nagaraja Reddy vs. State of Andhra Pradesh (2006 (11) SCC 444 to the
effect:
"Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will
decide whether the case falls under Section 302 or 304 Part
I or 304 Part II. Many petty or insignificant matters
plucking of a fruit, straying of a cattle, quarrel of children,
utterance of a rude word or even an objectionable glance,
may lead to altercations and group clashes culminating in
deaths. Usual motives like revenge, greed, jealousy or
suspicion may be totally absent in such cases. There may be
no intention. There may be no pre-meditation. In fact, there
may not even be criminality. At the other end of the
spectrum, there may be cases of murder where the accused
attempts to avoid the penalty for murder by attempting to put
forth a case that there was no intention to cause death. It is
for the courts to ensure that the cases of murder punishable
under section 302, are not converted into offences
punishable under section 304 Part I/II, or cases of culpable
homicide not amounting to murder, are treated as murder
punishable under section 302. The intention to cause death
can be gathered generally from a combination of a few or
several of the following, among other, circumstances : (i)
nature of the weapon used; (ii) whether the weapon was
carried by the accused or was picked up from the spot; (iii)
whether the blow is aimed at a vital part of the body; (iv) the
amount of force employed in causing injury; (v) whether the
act was in the course of sudden quarrel or sudden fight or
free for all fight; (vi) whether the incident occurs by chance
or whether there was any pre- meditation; (vii) whether
there was any prior enmity or whether the deceased was a
stranger; (viii) whether there was any grave and sudden
provocation, and if so, the cause for such provocation; (ix)
whether it was in the heat of passion; (x) whether the person
inflicting the injury has taken undue advantage or has acted
in a cruel and unusual manner; (xi) whether the accused
dealt a single blow or several blows.
The above list of circumstances is, of course, not exhaustive
and there may be several other special circumstances with
reference to individual cases which may throw light on the
question of intention."
CONCLUSION
63. As already observed elsewhere hereinabove in the instant case, the
prosecution evidence led itself establishes that the incident had taken place
without any premeditation in the heat of passion in the course of a sudden
quarrel in which even the injured (since deceased) had bitten the hand of
the accused/the appellant herein as testified by Rahul, the nephew of the
deceased, the eye-witness and that in the circumstances the weapon of
offence per se was a carpenter's tool not ordinarily used as a weapon for
commission of murder, coupled with the factum that the witness Rahul
Singh (PW-6) has testified that when the accused/appellant Naval Kishore
had left the place of the incident, he (PW-6) Rahul Singh and Mukesh
(since deceased) had also started moving from the spot and they i.e. (PW-6)
and Mukesh (since deceased) had only reached till the house of Nitin (JCL)
where the accused/appellant Naval Kishore had gone coupled with the
factum that the Chenni Ex.P-3 was stated to have been taken out from the
house of Nitin (JCL), the circumstances of the case established beyond any
reasonable doubt that the infliction of the injuries on the person of Mukesh
(since deceased) by the accused/appellant Naval Kishore was without any
premeditation and pursuant to a sudden quarrel and in the heat of passion
and that thus in the circumstances of the instant case the
accused/appellant Naval Kishore cannot be held guilty of commission of
culpable homicide amounting to murder under Section 302 of the IPC,
1860.
64. Reference can be made on this aspect to the law laid down by the Apex
Court in Samuthram @ Samudra Rajan v. State of Tamil Nadu, (1997) 2
Crimes 185 (Mad.) which is to the following effect:
"To invoke Exception 4 to section 300, four requirements
must be satisfied, namely (i) it was a sudden fight, (ii) there
is no premeditation; (iii) the act was done in a heat of
passion; and (iv) the assailant had not taken any undue
advantage or acted in a cruel manner.... The number of
wounds caused during the occurrence is not a decisive
factor but what is important is that the occurrence must
have been sudden and unpremeditated and the offender
must have acted in a fit of anger. Of course, the offender
must not have taken any undue advantage or acted in a
cruel manner. Where, on a sudden quarrel, a person in the
heat of the moment picks up a weapon which is handy and
causes injuries, one of which proves fatal, he would be
entitled to the benefit of this Exception provided he has not
acted cruelly;"
65. Thus the conviction of the accused/appellant Naval Kishore vide the
impugned judgment dated 26.07.2014 in Sessions Case No. 43/2014 by the
learned ASJ-05 North , Rohini Court under Section 302 read with Section
34 of the IPC, 1860 is converted to a conviction under Section 304 Part-II
of the IPC, 1860 in as much as Section 304 Part-II of the IPC 1860,
penalizes culpable homicide not amounting to murder if the act is done
with a knowledge that it is likely to cause death but without any intent to
cause death or to cause such bodily injury as is likely to cause death. This
is so in as much as in the circumstances of the case where the injuries were
inflicted, inter alia, on the portions of the chest with a sharp edged weapon
i.e. Chenni Ex.P-3, the knowledge that the injuries being inflicted on
Mukesh (since deceased) by the accused/appellant Naval Kishore would be
likely to cause death, though without any intention to cause death or to
cause such bodily injury as was likely to cause death, would have to be
essentially attributed to the appellant.
QUANTUM OF SENTENCE
66. With regard to the question of sentence, a submission was made on
behalf of the appellant that the accused/the appellant herein Naval Kishore was
aged 19 years at the time of the incident with his date of birth 12.01.1992 and
that he is the eldest of five siblings and has four sisters and one brother, and that
his father is now unable to continue his work as his hand got injured in a road
accident and that the appellant has clear antecedents and there are no other
criminal cases against him and his jail record is excellent and that the appellant
has been a victim of his own circumstances, and also taking into account that
while awarding the impugned judgment the learned trial Court had also directed
the North District Legal Authority to award compensation to the legal heirs of
the deceased under the Delhi Victim Compensation Scheme 2011 or under any
such scheme applicable in terms of Section 357A of the Cr.P.C. 1973.
67. On behalf of the accused/the appellant herein Naval Kishore it was
further submitted that the accused/the appellant herein Naval Kishore be
released on the period of detention already undergone by him in as much as, as
per the nominal roll dated 01.03.2017 received from the Superintendent Central
Jail-2, Tihar, New Delhi as on 07.02.2017, the accused/the appellant herein
Naval Kishore herein had already undergone six years and 26 days of
incarceration and that his conduct in the jail had been exemplary. On behalf of
the appellant a Letter of Appreciation dated 30.09.2016 issued by the
Superintendent Central Jail-2, Tihar and Certificate of Excellence in recognition
and appreciation of the good work of the appellant and his contribution to
Prison Administration in the year 2016 were inter alia relied upon on behalf of
the appellant.
68. The appellant who was released on interim bail vide order dated
01.02.2017, extended vide order dated 06.03.2017 has surrendered on
28.03.2017 as informed by learned Amicus Curiae Ms.Inderjeet Sidhu. In view
of the accused/the appellant herein, Naval Kishore having undergone detention
of a period of six years and 26 days as on 07.02.2013 and the factum that there
are no previous adverse antecedents against him, and the factum that the
offence was committed when the appellant was 19 years of age, his date of birth
being 12.01.1992, taking into account the factum that the offence as already
held hereinabove has been committed without any pre-meditation, the order on
sentence dated 26.07.2014 is modified and the sentence of life imprisonment
along with a fine of Rs.2000/- for the offence punishable under Section 302
read with Section 34 of the IPC, 1860 and in default of payment of fine to
undergo SI for two months, is modified to a period of sentence of rigorous
imprisonment for a period of eight years for the offence punishable under
Section 304 Part-II of the IPC, 1860 only. The period of detention already
undergone by the accused in relation to FIR No. 13/2011,PS S.P. Badli shall be
set off under Section 428 of the Cr.P.C. 1973. The sentence imposed vide the
impugned order on sentence dated 30.07.2014 of a life imprisonment alongwith
a fine of Rs.2000/- and in default of payment of fine to undergo SI for two
months is thus set aside.
69. However, taking into account the factum that there are no other cases
against the accused/the appellant herein Naval Kishore and no previous
convictions against him, it is essential that the sentence imposed upon the
accused acts as a deterrent and is simultaneously reformative with a prospect of
rehabilitation. The current development in penology is the emphasis of
reformation and rehabilitation of the offenders instead of retribution in this
regard, the implementation of the Model Prison Manual as directed by the
Supreme Court in W.P(C) 406/2013 vide order dated 05.02.2016 and the
Standard Minimum Rules for the Treatment of Prisoners adopted by the First
United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, held at Geneva in 1955, and approved by the Economic and Social
Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13
May, 1977, have been elaborately discussed vide our verdict in the case Sanjay
vs. State 2017 III AD (Delhi) 241¸ dated 20.02.2017. Thus as laid down by the
Supreme Court in Phul Singh Vs. State of Haryana in Criminal Appeal No.
506/1979 decided on 10.09.1979 that the "carceral period reforms the convict"
it is essential that the following directives are given to the reduced sentence of
imprisonment:
70. The concerned Superintendent at the Tihar Jail, New Delhi where the
appellant shall be incarcerated for the remainder of the term of imprisonment as
hereinabove directed shall consider an appropriate programme for the appellant
ensuring, if feasible :
appropriate correctional courses through meditational
therapy;
educational opportunity, vocational training and skill
development programme to enable a livelihood option and an
occupational status;
involvement in sports activities and creative art therapy
shaping of post release rehabilitation programme for the
appellant well in advance before the date of his release to make
him self-dependent,
ensuring in terms of Chapter 22 clause 22.22 (II) Model
Prison Manual 2016, protection of the appellant from getting
associated with anti - social groups, agencies of moral hazards
(like gambling dens, drinking places and brothels) and with
demoralised and deprived persons;
adequate counselling being provided to the appellant to
be sensitized to understand why he is in prison;
conducting of Psychometric tests to measure the
reformation taking place; and
that the appellant may be allowed to keep contact with
his family members as per the Jail rules and in accordance
with the Model Prison Manual.
71. Furthermore, it is directed that a Bi-annual report is submitted by
the Superintendent, Tihar Jail, New Delhi to this Court till the date of
release, of the measures being adopted for reformation and rehabilitation
of the appellant.
72. Copy of this judgment be also sent to the Director General, Prisons,
Delhi and to the Secretary, Law, Justice and Legislative Affairs, GNCTD,
Delhi to ensure compliance of the above directions.
73. The impugned judgment dated 26.7.2014 and impugned order of sentence
dated 30.07.2014 in Sessions Case 43/2014 in relation to FIR No. 13/2011, PS
Samaypur Badli shall stand modified in the above terms.
74. Criminal Appeal No. 1747/2014 is disposed of accordingly.
75. The Registry shall ensure that the copy of the judgment is forthwith
served to the appellant and the Jail Superintendent, Tihar.
76. The record of the trial Court be returned forthwith.
ANU MALHOTRA, J
ACTING CHIEF JUSTICE
APRIL 17, 2017
mk/mr
