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Delhi District Court
State vs . (1). Vijay on 16 October, 2014
Author: Sh. Vidya Prakash
FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala                                                                     DOD: 16.10.2014




  IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS 
        JUDGE­04 (NORTH): ROHINI COURTS: DELHI 

Session Case No. 32/1/14
Unique Case ID No.    02404R0146622011
State              Vs.      (1). Vijay
                            S/o Late Sh. Jhuggi Lal 
                            R/o E­26, Sukhbir Nagar,
                            Karala, Delhi.

                                              (2). Ravinder 
                                              S/o Sh. Bhagwan
                                              R/o A­162, Sukhbir Nagar, 
                                              Karala, Delhi.

                                              (3). Chander Prakash
                                              S/o Late Sh. Jhuggi Lal
                                              R/o E­26, Sukhbir Nagar,
                                              Karala, Delhi.

FIR No.         :         145/08
Police Station  :         Kanjhawala
Under Sections  :         304/34 IPC & 509 IPC

Date of committal to Sessions Court   : 19.05.2011
Date on which judgment was reserved: 10.10.2014
Date on which Judgment pronounced : 16.10.2014

                                                       JUDGMENT

The facts and circumstances giving rise to the present case are as under:­

(i) That on 12.09.2008 at about 6.00/6.30 pm, Smt. Shivpati State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 1 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 (since expired) alongwith Ms. Roshni (PW7) were sitting outside their house no. B­26, Sukhbir Nagar, Karala Delhi when they heard noise of weeping from the house of accused Vijay which was situated adjacent to the said house;

(ii) Smt. Shivpati (since expired) enquired from accused Vijay while he was standing on the door of his house about the person who was weeping at that time. Accused Vijay started abusing Smt. Shivpati (since expired) and also extended threat to Ms. Roshni (PW7) on which Smt. Shiv Pati(since expired) and Ms. Roshni (PW7) came inside their house;

(iii) After about 30 minutes when Sh. Ganshyam (PW1) returned back to his house from his duty, Ms. Roshni (PW7) informed him about the said incident on which Ganshyam went to the house of accused Vijay and asked about the reason for abuses made by him to his mother i.e. Smt Shivpati (since expired);

(iv) Thereafter, accused Vijay alongwith other accused persons namely Ravinder and Chander Parkash started grappling with Sh. Ganshyam and gave beatings to him and his son namely Govind Gupta(PW4). Smt. Manju (PW3), Sh Govind (PW4), Ms. Roshni (PW7) and Smt. Shivpati (since expired) were also present at the gate of their house and had witnessed the incident.

(v) Smt. Shivpati (since expired) asked accused persons as to why they were beating Sh. Ganshyam (PW1) on which State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 2 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 accused Vijay went inside his house, brought one Thapi and assaulted Smt. Shivpati (since expired) due to which she fell down and received injuries on her thigh and leg on which accused persons escaped from the spot;

(vi) Ganshyam (PW1) removed his injured mother namely Smt. Shivpati (since expired) to BSA Hospital Rohini and got her admitted there. On 12.09.2008, where Dr. Bhawna Jain (PW11) CMO of BSA Hospital examined Smt. Shivpati Devi (since expired) vide MLC (Ex.PW8/A) and referred her to Senior Resident (Orthopedic) for opinion and management. Accordingly, Dr. Deepti Manchanda, the then Senior Resident of BSA Hospital conducted X­ray of Smt. Shivpati (since expired) which showed fracture on left femur as per her report. Dr. Bijender, the then Radiologist of BSA Hospital had given his opinion regarding fracture on left femur sustained by Smt Shivpati Devi (since expired) on said MLC.

(vii) That on 12.09.2008 at 7.00 pm, intimation was received regarding quarrel at House no. A­24, A­25, Sukhbir Nagar in PS Kanjhawala, which was recorded vide DD no. 49­B (Ex.PW12/A) by Ct. Parveen (PW12). The said DD was entrusted to HC Raj Kumar (PW17). On receipt of DD No. 49B, HC Raj Kumar reached the spot where on enquiry, it was revealed that injured had already been removed to the hospital State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 3 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 on which he went to BSA Hospital and obtained MLC of injured Smt. Shivpati (since expired). Injured Shivpati (since expired) showed her inability to give statement regarding the incident on account of acute pain due to which DD no. 49­B was kept pending and he returned back to PS alongwith MLC of injured and made arrival entry vide DD no. 23­A (Ex.PW17/A);

(viii) Accused persons pleaded guilty before Ganshyam (PW1) and his family members and also promised to bear all the medical expenses regarding treatment of Smt. Shivpati (since expired) due to which no statement was made to the police on the date of incident. However later on, accused persons refused to pay the expenses on which Smt. Manju (PW3)visited PS Kanjhawala on 07.10.2008 and made statement (Ex.PW3/A) before HC Raj Kumar (PW17) on the basis of which he made endorsement (Ex.PW17/B) and got the FIR No. 145/08 U/s 323/509/34 IPC registered through ASI Nand Singh (PW6);

(ix) On 07.10.2008, HC Raj Kumar (PW17) alongwith Ct. Vinod (PW15) arrested accused Vijay and conducted his personal search and thereafter, he was released on police bail;

(x) Smt. Shivpati (since expired) expired on 01.01.2009 at her house due to injuries caused by accused persons. On 01.01.2009 at about 3.21 pm, intimation was received in PS State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 4 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 Kanjhawala that a person who was injured in a quarrel which had taken place 2/3 months ago in Sukhbir Nagar, has expired. Said intimation was reduced into writing by WHC Sarla (PW2) vide DD no. 19­A (Ex.PW2/A). On the same day i.e 01.01.2009 at about 4.38 pm, another intimation was received in PS Kanjhawala that one lady who was injured in a quarrel at 26­B, Gali no. 8, Sukhbir Nagar, Delhi, had expired. The said intimation was recorded vide DD no. 21­A (Ex. PW2/B). On receipt of DDs (Ex.PW2/A & Ex.PW2/B), SI Shiv Narain (PW9) reached at D­26, Sukhbir Nagar, Delhi where dead body of Shivpati wife of Sh. Sohan Lal was lying and accordingly, the dead body was sent to mortuary of SGM Hospital;

(xi) SI Shiv Narain (PW9) conducted inquest proceedings (Ex.PW9/A), filled up Form 25.35 (Ex.PW9/C) and made written request (Ex.PW9/B) for postmortem examination of the dead body. On 02.01.2009, SI Shiv Narain also recorded statements of Sh. Ganshyam (PW1) and of Radhey Shyam regarding identification of dead body and got the postmortem conducted through doctor;

(xii) On 02.01.2009, Dr. Manoj Kumar (PW10) had conducted autopsy of dead body of deceased Shivpati Devi and prepared PM report (Ex.PW10/A) wherein the cause of death was State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 5 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 opined as septicemia;

(xiii) On 02.05.2010, investigation was entrusted to SI Ashok Kumar (PW5) who added Section 304 IPC on 14.11.2010 on the basis of subsequent opinion (Ex.PW10/B) received from Dr. Manoj Kumar (PW10). On 10.03.2011, Inspector Surender Kumar (PW14) alongwith Ct. Ajit Singh (PW16) again arrested accused persons and conducted their personal search. After completion of investigation, chargesheet had been filed before the Court.

After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.

After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 304/34 IPC against all three accused persons and charge u/s 509 IPC was also framed against accused Vijay, vide order dated 18.07.2011 to which the accused persons pleaded not guilty and claimed trial.

In support of its case, prosecution examined 17 witnesses namely PW1 Sh. Ghanshyam, PW2 WHC Sarla, PW3 Smt. Manju, PW4 Sh. Govind Gupta, PW5 SI Ashok Kumar, PW6 ASI Nand Singh, PW7 Ms. Roshni, PW8 Dr. Geetesh Kumar, PW9 SI Shiv Narain, PW10 Dr. Manoj Kumar, PW11 Dr. Bhavna Jain, PW12 Ct. Parveen, PW13 Dr. Rajiv Ranjan, PW14 Inspector Surender Kumar, PW15 Ct. Vinod, PW16 Ct. Ajeet Singh and PW17 HC Raj Kumar Tyagi during trial.

State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 6 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 Thereafter, statements U/s 313 Cr.PC of all the three accused persons were recorded during which incriminating evidence were put to them but same were denied by them. All the three accused persons claimed innocence. However, their defence was of general denial. All three accused persons also opted to lead DE towards their defence. They examined only one witness namely DW1 Sh. Anuj towards DE.

I have already heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State and ld. Counsel Sh. Sanjay Sharma, Adv. on behalf of all three accused persons. I have also considered the material available on record.

Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss in brief the testimonies of prosecution witnesses examined during trial.

Public Witnesses:­ PW­1 Ganshyam:­ This witness is the son of deceased Shivpati. He has deposed almost on the lines of prosecution story during chief examination. He categorically testified that on 12.09.08, he had returned back from duty to his house at 7.00 P.M. After being informed by his daughter Roshni (PW7), he went to the house of accused Vijay and enquired him about the reason for abusing his mother in filthy language on which said accused alongwith co accused persons grappled with him. In the meantime, his mother namely Shivpati(since expired), his daughter Roshni(PW7) and his son Govind(PW4) who were present at the gate of his State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 7 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 house and were witnessing the incident, tried to intervene on which accused Vijay brought one thapi and assaulted his mother due to which she received injuries on her thigh and leg. He took his mother to BSA Hospital where she remained admitted for quite sometime. All the accused persons had pleaded guilty before them and also promised to bear all the medical expenses incurred during treatment of his mother due to which they did not give any statement before the police on that day. Subsequently, accused persons refused to pay the expenses on which his wife Smt. Manju(PW3) lodged report against them at PS Kanjhawala on 07.10.08. His mother expired on 01.01.09 at his house due to the injuries caused by the accused persons. He has been cross examined at length on behalf of accused.

PW3 Smt. Manju:­ She is the complainant in this case. She has also deposed on similar lines as deposed by PW1 Ganshyam. She also narrated about the entire incident which took place on 12.09.08 by claiming that accused persons had given beatings to her mother­in­law Shivpati and accused Vijay had given beatings to Ms. Shivpati on her thigh with thapi due to which she had fallen down.

She further deposed that PCR call at 100 number was made on which PCR Van had reached there but they did not conduct any proceeding. On 07.10.08, police had recorded her statement Ex PW3/A.

This witness has been cross examined at length on behalf of accused persons.

PW4 Govind Gupta:­ This witness is the grand son of deceased Shivpati. He has also deposed on the lines of prosecution story and State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 8 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 corroborated the depositions made by PW1 Ganshyam and PW3 Manju.

He further deposed that accused persons had also given beatings to him and to his father.

This witness has also been cross examined at length on behalf of accused persons.

PW7 Ms. Roshni:­ This witness is the grand daughter of deceased Shivpati. She has also corroborated the testimonies of above said public witnesses by deposing that accused Vijay had brought thapi from his house and all the accused persons including accused Ravinder gave beatings to her grand mother Shivpati with said thapi due to which her grand mother had fallen down. She had made PCR call at 100 number on which police reached there but did not take any action at that time.

This witness has also been cross examined by accused persons at length.

Police Witnesses:­ PW­2 WHC Sarla:­ She is the formal witness who was working as Duty Officer on 01.01.09. She deposed that on that day at about 3.21 P.M, information was received from wireless operator that a person who had received injuries in quarrel which had taken place about 2/3 months back in Sukhbir Nagar, has expired. The said intimation was recorded vide DD no. 19A. She proved copy thereof as Ex PW2/A.

She further deposed that another intimation was received at about 4.38 P.M on that day from wireless operator that one lady who was injured State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 9 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 in a quarrel at house no. 26­B, Gali no. 8, Sukhbir Nagar, has expired. Said intimation was recorded by her vide DD no. 21A. She proved copy thereof as Ex PW2/B.

This witness has not been cross examined by accused despite grant of opportunity.

PW­5 SI Ashok Kumar:­ This witness remained investigating officer of this case from 02.05.10 till 27.12.10. He deposed that offence U/s 325 IPC was added during the course of investigation. After death of injured Shivpati on 01.01.09 in SGM Hospital, her postmortem was got conducted through ASI Shiv Narain.

He further deposed that on 14.11.10, he had obtained subsequent opinion from Dr. Manoj Dhingra(PW10) after which offence U/s 304 IPC was added during the course of investigation.

This witness has not been cross examined by accused persons despite grant of opportunity.

PW­6 ASI Nand Singh:­ This witness has proved factum regarding registration of FIR in question on 07.10.08 on the basis of rukka produced by HC Raj Kumar in the PS. He proved copy of said FIR as Ex PW6/A and his endorsement as Ex PW6/B made on the said rukka.

This witness has not been cross examined by accused persons despite grant of opportunity.

PW­9 SI Shiv Narain:­ This witness deposed about the State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 10 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 proceedings carried out by him on 01.01.09 and on 02.01.09 during investigation of this case. He deposed that on receipt of DDs no. 19A and 21A on 01.11.09, he reached at house no. B­26, Sukhbir Nagar, Delhi where dead body of Shivpati was lying and since it was revealed that case had already been registered at PS Kanjhawala regarding injuries caused to her, he sent dead body of deceased Shivpati to SGM Hospital mortuary and conducted inquest proceedings.

He further deposed that on 02.01.09, dead body was identified by Ganshyam and Radhey Shyam vide their statements Ex PW9/D and Ex PW9/E and postmortem of dead body of deceased Shivpati was got conducted after which dead body was handed over to his relatives.

During cross examination, he testified that he had reached the spot at about 4.00 P.M on 01.01.09 and many public persons were present there besides family members of deceased. On 01.01.09, no complaint was given by any family members of the deceased.

PW12 Ct. Parveen:­ This witness was working as DD writer in PS Bawana on 12.09.08. Initially, intimation was received by him in PS Bawana at about 7.00 P.M regarding quarrel at house no. A­24/25, Sukhbir Nagar, Delhi which was recorded by him vide DD no. 49B. He proved copy thereof as Ex PW12/A.

This witness has not been cross examined by accused persons despite grant of opportunity.

PW­14 Inspector Surender Kumar:­ This witness remained IO of this case from 19.01.11 till filing of charge sheet before the Court. State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 11 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 He deposed that he had recorded statements U/s 161 Cr.PC of Govind and Manju. On 10.03.11, accused persons were arrested after adding Section 304 IPC in this case. He proved relevant arrest memos and personal search memos of the accused persons as Ex PW14/A1 to Ex PW14/B3. He also collected x­ray report of deceased Shivpati on 07.04.11 from BSA hospital.

During cross examination, he deposed that he had also visited the spot and conducted enquiry from neighbourers and also requested them to join the investigation but none agreed. He denied the relevant suggestions that he did not make any enquiry either from any neighbourer or from family members of the deceased and did not record statements of Govind and Manju as claimed in chief examination.

PW­15 Ct. Vinod:­ This witness had joined investigation of this case on 07.10.08 with HC Raj Kumar Tyagi. He deposed that accused Vijay and Ravinder were formally arrested in this case on that day and their personal search were conducted. He proved relevant memos in this regard as Ex PW15/A1 to Ex PW15/B2 respectively.

During cross examination, he deposed that accused Chander Parkash was not arrested in his presence. Both the accused namely Vijay and Ravinder themselves had appeared in PS but he could not disclose the time when said accused were arrested by HC Raj Kumar.

PW16 Ct. Ajit Singh:­ This witness joined investigation of the case with Inspector Surender Kumar on 10.03.11 when all the three accused persons were arrested and their personal search was conducted by Inspector State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 12 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 Surender Kumar after addition of Section 304 IPC against them. He proved relevant memos in this regard as Ex PW14/A1 to Ex PW14/B3 respectively.

This witness has not been cross examined by accused persons despite grant of opportunity.

PW17 HC Raj Kumar Tyagi:­ This witness had conducted relevant proceedings on 12.09.08 after receipt of copy of DD no. 49B Ex PW12/A regarding quarrel at house no. A­24, A­25. He deposed that he had gone to the spot and subsequently to BSA hospital where he obtained MLC of injured Shivpati and also asked her to give statement regarding the incident but she showed her inability to give her statement on the ground that she was feeling acute pain. Due to said reason, he got DD no. 49B pending and made arrival entry vide DD no. 23A Ex PW17/A.

He further deposed that on 07.10.08, Smt. Manju had visited PS Kanjahawala and got her statement Ex PW3/A recorded on the basis of which, he made endorsement Ex PW17/B and got the FIR in question registered on that day.

He further deposed that accused Vijay and Ravinder were arrested by him and their personal search were also conducted. He deposited MLC of injured Shivpati after taking opinion abut the nature of injuries and ultimately, the nature of injuries sustained by Shivpati was opined as grievous on her MLC.

Medical Evidence:­ PW8 Dr. Geetesh Kumar:­ This witness deposed on behalf of State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 13 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 Dr. Brijender of BSA hospital who had examined injured Shivpati on 12.09.08 vide MLC no. 5437/08. He proved said MLC as Ex PW8/A. According to said MLC, injured Shivpati had sustained injuries on left femur and also fracture as per radiologist opinion.

During cross examination, this witness admitted that best possible treatment is given to a patient. He further deposed that fracture of femur bone can be caused by many ways including falling.

PW­10 Dr. Manoj Kumar:­ This witness had conducted postmortem examination of dead body of deceased Shivpati on 02.01.09 and prepared postmortem report Ex PW10/A. According to said report, no external injury was found present on the body of deceased Shivpati. However, during internal examination, fluid and pus were present in muscle layer. The cause of death as mentioned in postmortem report Ex PW10/A was septicemia.

He further deposed that he had given subsequent opinion on 14.11.10 after going through MLC Ex PW8/A, report of radiologist and postmortem report Ex PW10/A. He deposed that puss was present in between muscle layer and cause of death was septicemia.

This witness has not been cross examined by accused persons despite grant of opportunity.

PW­11 Dr. Bawana Jain:­ This witness had initially examined injured Shivpati on 12.09.08 at 10.30 P.M in BSA hospital and after giving primary treatment, she had referred the patient to S.R(Ortho) for opinion State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 14 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 and further management. She had prepared MLC Ex PW8/A.

This witness has not been cross examined by accused persons despite grant of opportunity.

PW­13 Dr. Rajiv Ranjan:­ This witness appeared on behalf of Dr. Deepti Manchanda who was working as Radiologist in BSA hospital. He deposed that x­ray of pelvis with both hips of injured Shivpati was conducted by Dr. Deepti Manchanda and there was fracture on left femur as mentioned in report Ex PW13/A of Dr. Deepti Manchanada.

This witness has not been cross examined by accused persons despite grant of opportunity.

DW­1 Sh. Anuj :­ This witness claimed that he was residing in the same locality wherein the houses of accused persons and deceased Shivpati were situated. He deposed that deceased Shivpati was already having difficulty in her legs and she used to walk with the help of walker. On the date of incident, he saw that several public persons had collected over there who had been trying to pacify said Smt. Shivpati and other persons. It was Ganshyam(PW1) who had started grappling with accused Vijay and other accused persons on which public persons including him had intervened between them. Due to commotion created at the spot, some one pushed Smt. Shivpati while trying to intervene due to which Smt. Shivpati fell down on the road. Some one made PCR call on 100 number on which PCR van came and removed Smt. Shivpati to SGM Hospital. The police officials of PS Kanjhawala also reached the spot but did not make any enquiry either from him or from the residents of the locality. State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 15 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 During cross examination, he admitted that he did not approach police for making any statement that he had witnessed the incident. He also admitted that he did not request PCR officials as well as local police officials who had visited the spot, for recording his statement. He denied the relevant suggestions that he was not present at the time of incident in question and had been deposing falsely at the instance of accused persons in order to save them from punishment.

Arguments advanced & Case law cited While opening the arguments, Ld Additional PP of State vehemently argued that prosecution has established the charges levelled against accused persons in this case. In order to buttress the said submissions, he heavily relied upon the testimonies of public witnesses namely PW1 Sh. Ganshyam, PW2 Ms. Manju(complainant), PW4 Sh Govind and PW7 Ms. Roshni. He contended that all these public witnesses have totally supported the case of prosecution on material aspects including the identity of accused herein to be the offenders who had caused injuries to deceased Shivpati Devi on 12.09.08. After referring to the medical evidence available on record, he urged that the death of Smt. Shivpati had taken place due to the injuries sustained by her during incident in question and therefore, accused persons should be convicted accordingly.

On the other hand, Ld defence counsel vehemently argued that the prosecution has failed to prove its case against any of the accused beyond reasonable doubt due to which accused are entitled to acquittal in this case.

State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 16 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 At the outset, it may be mentioned that there is no piece of evidence available on record which may show that accused Vijay had committed offence U/s 509 IPC. None of the prosecution witnesses examined during trial, even dared to depose about the filthy language allegedly used by said accused against Shivpati Devi. None of them have uttered even a single word on this aspect. Thus, the prosecution has miserably failed to prove that accused Vijay had abused Shivpati in filthy language or that said accused had got any intention to insult the modesty of Shivpati in any manner. Therefore, accused Vijay is acquitted in respect of offence U/s 509 IPC charged against him in this case.

As regards offence U/s 304/34 IPC, the first contention of Ld defence counsel is that there is a delay in registration of FIR which has not been explained by prosecution witnesses during trial. He pointed out that incident had taken place on 12.09.08 as per case of prosecution but FIR in question was registered only on 07.10.08. However, the said argument is devoid of any merit for the simple reason that prosecution witnesses namely PW1 Ganshyam and PW3 Manju have explained during their depositions that since accused persons had promised to bear the medical expenses to be incurred on the treatment of injured Smt. Shivpati, they did not lodge any complaint against them immediately after the incident but when accused refused to pay the medical expenses, FIR was got registered against them. The said explanation seems to be quite plausible and stands corroborated by the testimony of PW17 HC Raj Kumar Tyagi who had, State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 17 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 at the first instance, gone to the place of incident on receipt of copy of DD no. 49B Ex PW12/A on 12.09.08 i.e on the date of incident itself but kept the said DD pending as injured Smt. Shivpati Devi was feeling acute pain and was not in a position to give any statement to the police. Thus, no benefit can be given to the accused persons on this ground.

Ld defence counsel tried to assail the testimony of PW3 Smt. Manju by referring to relevant portion of her chief examination wherein she claimed that police had recorded her statement in the hospital on the date of incident but no proceeding was conducted by the police. He argued that no such statement of PW3 as recorded in the hospital, has been placed on record or relied by prosecution in this case due to which doubt is created in the case of prosecution benefit of which must be given to the accused persons. However, the said argument does not carry any force. The aforesaid portion of the testimony of PW3 at the most points out to the lapse on the part of police official in not placing on record the statement if any of said witness recorded in the hospital but it does not affect the testimony of PW3 or the case of prosecution in any manner.

There is no merit in the next submission made on behalf of accused that weapon of offence i.e Thapi has not been recovered in this case. It is well settled law that non recovery of weapon of offence, in itself, is immaterial and is not fatal to the case of prosecution.

Court also does not find any substance in the argument of Ld defence counsel that PW1 Ganshyam ought to have been got medically examined as he was also given beatings by accused persons as per State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 18 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 depositions made by prosecution witnesses more particularly PW3 Smt. Manju and PW4 Govind. Having not so done, doubt is created in the case of prosecution. It is clear from the depositions made by public witnesses that PW1 had not sustained any such type of injuries due to beatings given by accused persons so as to call for his medical examination. In any case, the accused persons have not been charged with any offence for giving beatings to PW1. Instead, they have been charged with offence of culpable homicide not amounting to murder for giving beatings to deceased Shivpati.

Ld defence counsel argued that the testimonies of all the four public witnesses i.e PW1, PW3, PW4 and PW7 are not trustworthy on the ground that they are interested witnesses being family members of deceased Shivpati but the said contention is devoid of any merit.

No doubt, all the aforesaid public witnesses happen to be family members of deceased Shivpati but this fact alone would not be sufficient to discard their depositions altogether. This is more so when the testimonies of all the said four public witnesses are found to be quite natural and trustworthy and inspire confidence. All the said four public witnesses have completely supported the case of prosecution on all material points to the extent of the incident of 12.09.08 by showing that all the three accused persons herein had caused beatings to deceased Shivpati with thapi due to which she had sustained fracture of her left femur. Their ocular testimonies are duly corroborated by medical evidence in the form of testimonies of PW8 Dr. Geetesh Kumar, PW11 Dr. Bawana Jain and PW13 Dr. Rajeev State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 19 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 Ranjan as well as the relevant medical record i.e MLC Ex PW8/A of Shivpati and her x­ray report Ex PW13/A showing that she had suffered fracture of her left femur due to injuries caused by accused herein.

All the aforesaid public witnesses duly corroborated each other on all material points and accused persons could not impeach their testimonies through litmus test of cross examination. Thus, there is no reason to either disbelieve the testimonies of those public witnesses or to throw away the case of prosecution on this ground.

However, Court finds considerable force in the argument raised on behalf of accused that prosecution has failed to prove that death of Shivpati was the direct and proximate cause of the injuries caused to her on 12.09.08. In order to appreciate the rival submissions made on behalf of both the sides, it would be appropriate to refer to the provisions contained in Section 299 and 304 IPC.

Section 304 IPC provides for punishment for culpable homicide not amounting to murder. It reads as under:­ 304 IPC. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[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, State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 20 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 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.

The above section is in two parts. Although Section does not specify Part I and Part II, but for the sake of convenience, the investigators, the prosecutors, the lawyers, the judges and the authors refer to the first paragraph of the Section as Part I while the second paragraph is referred to as Part II. The constituent elements of Part I and Part II are different and, consequently, the difference in punishment. For punishment under Section 304 Part I, the prosecution must prove : the death of the person in question ; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death. In order to find out that an offence is 'culpable homicide not amounting to murder'.

Since Section 304 IPC does not define the above said expression, Section 299 and 300 IPC have to be seen. Section 299 IPC as 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 is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 21 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 To constitute the offence of culpable homicide as defined in Section 299, the death must be caused by doing an act : (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the doer is likely by such act to cause death.

It becomes amply clear from the bare perusal of above mentioned provisions that in order to prove the offence u/s. 304 IPC, the prosecution must prove that death of deceased was culpable homicide and it was not natural death or death by accident.

In the present case, injuries were caused to deceased Shivpati on 12.09.08 and at that time, she had merely sustained fracture of left femur. It has been admitted by PW1 Ganshyam during cross examination that her mother i.e Shivpati was discharged from BSA hospital on the advice of concerned doctor and also that she remained alive for approximately four months even after the date of incident.

It is pertinent to note that deceased Shivpati was aged about 85 years old as per testimony of her son namely PW1 Ganshyam, at the time of incident in question. It is clear from the testimony of PW8 Dr. Geetesh Kumar that best treatment as available in the hospital, is given to the patient. PW8 also testified during cross examination that fracture of femur bone can be caused by many ways including falling. Moreover, the perusal of PM report Ex PW10/A would show that cause of death of Shivpati in this case was septicemia and not the fracture of left femur as sustained by State V/s Vijay etc. ("Convicted U/s 325/34 IPC") Page 22 of 23 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala DOD: 16.10.2014 her on 12.09.08. It is an admitted fact that she had expired on 01.01.09 i.e after a period of about four months from the date of incident. During postmortem examination, it was found that there was presence of fluid and puss in muscle layer which probably caused septicemia and ultimately, septicemia resulted into her death.

In view of the aforesaid facts and circumstances, Court is of the view that prosecution has failed to lead cogent evidence on record to establish the offence U/s 304/34 IPC against the accused persons. Nevertheless, prosecution has been able to establish that the accused persons had voluntarily caused grievous hurt to Shivpati due to beatings given to her with the help of thapi. The manner and the circumstances in which said offence is shown to have been committed, leaves no scope of doubt that all the accused persons had participated in the commission of offence and had common intention to commit the said offence. Hence, prosecution has been able to prove its case in respect of offence U/s 325/34 IPC against all the three accused persons. Consequently, all the three accused persons namely Vijay, Ravinder and Chander Parkash stand convicted for the said offence.




Announced in open Court today 
dt. 16.10.2014                                  (Vidya Prakash)
                                   Additional Sessions Judge­04 (North)
                                              Rohini Courts, Delhi




State V/s Vijay etc. ("Convicted U/s 325/34 IPC")                                                                                      Page 23 of  23
 FIR No. 145/08; U/s 304/34 IPC & Section 509 IPC; P.S. Kanjhawala                                                                     DOD: 16.10.2014




State V/s Vijay etc. ("Convicted U/s 325/34 IPC")                                                                                      Page 24 of  23