Full Text
HIGH COURT OF DELHI
DEVENDER MANN ..... Appellant Represented by: Mr. Sunil Choudhary, Adv.
(DHCLSC) and Mr. Praveen Singh, Advs.
HON'BLE MS. JUSTICE POONAM A. BAMBA POONAM A. BAMBA, J :-
1.0 Vide this appeal, the appellant is assailing the
JUDGMENT
05.12.2018 („impugned judgment‟ in short) passed by Ld. ASJ-03, New Delhi District, Patiala House Court, New Delhi, whereby the appellant was convicted for the offence punishable under Section 302 Indian Penal Code
(„IPC‟ in short), in case FIR no. 340/2013, Police Station Delhi Cantt.; and order on sentence dated 24.12.2018, whereby the appellant was sentenced to undergo rigorous imprisonment for life under Section 302 IPC with fine of
Rs.50,000/-, in default to undergo simple imprisonment for four months.
2.0 Briefly stating, the prosecution case is that on 06.10.2013, on receipt of DD no. 7A, at 7:10 AM, regarding admission of Sajjan Kumar at Base
Hospital vide MLC No. 686/13, PW-27 ASI Bharat along with Ct.
Narender/PW-20 visited the said hospital. From the hospital, ASI
Bharat/PW-27 informed PS Delhi Cantt., vide DD no. 17A/Ex.PW22/E, that injured Sajjan Kumar was admitted in ICU and the doctor declared him dead at 10:15 AM on 06.10.2013. On this information, Inspector Shankar Lal/PW-
31 reached the hospital, where SHO and SI Mahesh had already arrived. The dead body of Sajjan Kumar was inspected and injury marks on the deceased‟s head and face and considerable bleeding from his nose, ears and mouth was noticed. The dead body was kept under the supervision of Ct.
Narender/PW-20 in Base Hospital mortuary. Thereafter, Inspector Shankar
Lal/PW-31 along with staff went to Unit 150, Infantry Battalion, TA Punjab, MOD Lines, Delhi Cantt., where barrack no. T-78 was inspected. Sepoy
Ishwar Singh/PW-1, eye witness met there, who gave his statement, 2.1. PW-1 in his statement Ex. PW-1/A stated that he was serving in Unit
150, Infantry Battalion, TA Punjab, MOD Lines, Delhi Cantt. On
05.10.2013, he was on duty at Parade Ground from 2:00 PM to 12:00 midnight. After his duty, he reached the unit along with Naik Ramesh
Kumar/PW-2, Sepoy Mahavir, Sepoy Sunil, Sepoy Sheetal at 12:30 AM on
06.10.2013. After changing, he lied down in his cot in his barrack no. T-78
After about 10-15 minutes, he heard a loud noise of hitting twice. But the person did not get up despite being hit with such a great force. PW-1 then got up and saw that one person, who was holding a pipe or danda, was standing near the cot next to the door, on which Sajjan Kumar was sleeping, and when he shouted as to why was he hitting, the said person again hit on the head of Sajjan Kumar with force. He could see the same as light of the varanda was on, though the light of the barrack was switched off. By that time, other soldiers in the barrack also got up. He and Naik Bharat
Singh/PW-11, who was at the cot adjoining his cot, ran to apprehend that person and saw that he was the appellant/accused Devender Mann, who was wearing Sandoz vest and was holding an iron pipe in his hand, but he ran away. When he returned to the barrack, other soldiers had also woken up and tried to lift Sajjan Kumar, who was bleeding from his head, nose, ear and mouth and a lot of blood was spilled on the bed. With the help of other soldiers and PW-19/Naik Subedar Pritam Chand, Sajjan Kumar/deceased was taken to Base Hospital. On which, PW-31/Ins. Shankar Lal sent a rukka for registration of FIR u/s 302 IPC through HC Dhara Singh/PW-17 to
Police Station, Delhi Cantt. After registration of FIR no. 340/2013 Ex. PW
22/A by PW-22 W/SI Sunita Kumari, PW-17/HC Dhara Singh returned and handed over copy of the same and Rukka to PW-31 Inspector Shankar Lal.
2.2 The investigation of the case was carried out by Inspector Shankar
Lal/PW-31. Site of the incident was got inspected by crime team and photographs were taken. The report of the crime team was obtained and the exhibits from the spot were seized. Site plan/Ex.PW7/A was prepared and statements of the witnesses were recorded. Subedar Azad Singh/PW-14 of
ISO Infantory Battalion, TA 150 MOD Lines, Delhi Cantt. handed over one green trouser (Ex. P7b), one vest (Ex. P7a), one pair of slippers (Ex. P5) and stated that the said clothes were of the appellant/accused Devender Mann, which he was wearing at the time of the incident and which were hidden by him under his cot („takhat'). PW-14 also produced one iron pipe (Ex. P6) and stated that with the said iron pipe, the appellant/accused Devender Mann had hit the deceased Sepoy Sajjan Kumar and had thrown the same in the drain behind ECHS Barrack and the said clothes and iron pipe were recovered at the instance of appellant/accused Devender Mann, vide seizure memos Ex.PW14/A and Ex.PW14/B, respectively. Thereafter, Subedar
Rajender Kumar/PW-15 handed over the appellant/accused Devender Mann vide handing/taking over certificate/Ex.PW15/A.
2.3. Appellant/accused was interrogated and arrested vide memo
Ex.PW27/A. He made a disclosure statement Ex.PW15/B to the effect that on 05.10.2013 at about 9.00 am, a quarrel took place between him and Sepoy
N.K. Jagdish, during which Jagdish had absued him and hit him on his hand and feet and he wanted to take revenge from him. On 07.10.2013, the appellant/accused pointed out the place of incident, the place were he had thrown iron pipe and the place where he had hidden his clothes, vide pointing out memos Ex. PW-14/E, Ex. PW-14/F and Ex. PW-14/G, respectively. Scaled site plan/Ex. PW7/A was got prepared. Postmortem on the body of the deceased Sajjan Kumar was got conducted vide Post-mortem report Ex. PW-23/A and his dead body was handed over to his legal heirs.
On 13.11.2013, the weapon of offence was sent to Safdarjung hospital. On
23.11.2013, ASI Bharat Singh/PW-27 obtained subsequent opinion Ex. PW-
23/B regarding weapon of offence i.e. iron pipe, whereby the doctor opined that the injuries on the body of the deceased could be possible by the said weapon. On 02.12.2013, exhibits of the case were deposited with FSL
Rohini. During investigation, it was found that there was a dispute between the appellant/accused Devender Mann and Naik Jagdish/PW-5 with regard to assignment of duty and the appellant/accused nursed a grudge against the
Naik Jagdish. On that account, quarrel had taken place between them on
05.10.2013 at about 9 pm. The appellant/accused Devender Mann wanted to settled score with Naik Jagdish; he assaulted Sepoy Sajjan Kumar mistaking him for Naik Jagdish/PW-5. On conclusion of investigation, charge-sheet u/s 302 IPC was filed. Later on, on receipt of FSL report Ex.PW32/A, same was filed vide supplementary charge sheet on 01.11.2014.
3.0 The prosecution in order to prove its case examined 33 witnesses in all.
4.0 In his statement under Section 313 Cr.P.C, the appellant/accused denied the allegations and stated that he has been falsely implicated; no recovery was made from him/at his instance. He further stated that PW-5
Nayak Jagdish was not on good terms with him and has falsely framed him in this case with mala fide intention. Appellant chose not to lead any evidence in his defence.
5.0. Ld. Counsel for the appellant argued that the ld. Trial Court did not appreciate that in the post-mortem report Ex. PW-23/A, the date and time of admission of the deceased is mentioned as 00.55 am on 06.10.2013, whereas vide PCR Form Ex. PW8/A, first PCR call was made at about 6.51 am on
06.10.2013 mentioning that the deceased Sajjan Kumar had met with a traffic accident. How could the deceased be admitted in the hospital at 00.55 am i.e. 6 hours prior to meeting with the accident reported at about 6.50 am.
Further as per PW-1, the incident took place somewhere around 1.00 am, but the matter was reported to the police for the first time at 11.00 am i.e. after about 12 hours of the incident. Further, PW-2 admitted the factum of not informing the police about the incident. No explanation has been furnished by the prosecution with regard to the said PCR call, which casts serious doubt on the prosecution story.
5.1. Learned counsel further argued that there are other material factual discrepancies which create serious doubt about the prosecution story. It was submitted that the statement of PW-1/alleged eye witness Sepoy Ishwar
Singh was recorded at 01.15 pm on 06.10.2013 whereas the FIR , which was registered on the basis of his statement, was registered at 07.10 am. Ld.
Counsel also argued that it was highly improbable for PW-1 to see the appellant/accused committing crime. He further argued that PW-8 W/Ct.
Sumitra has stated the time of admission of the deceased in the hospital as
6.51 am on 06.10.2013 whereas, the postmortem report mentions the time of admission as 00.55 am. Further, as per the arrest memo Ex.PW-27/A, the appellant/accused was arrested at 9.00 am, however by that time, no FIR had been registered.
5.2. Ld. Counsel for the appellant further argued that it is very unlikely that only PW-1 heard the noise of beatings given, when so many officers were sleeping there. He also submitted that PW-1 implicated the accused, he being a relative of the deceased which fact itself casts a serious doubt on the veracity of his testimony.
5.3. Ld. Counsel also argued that recovery of clothes and weapon of offence effected by PW-14 Subedar Azad Singh, who is neither the investigating officer nor associated with him, renders the said recovery highly doubtful.
5.4. Learned counsel also submitted that although, it is the prosecution case that the appellant/accused assaulted the deceased mistaking him for
Nayak Jagdish Kumar/PW-5, against whom, he nursed a grudge. PW-21
Dilsher, who saw the quarrel between the appellant/accused and PW-5
Jagdish Kumar has not stated anything in this regard. Rather in his cross- examination by the Ld. Prosecutor, PW-21 denied having stated that the appellant/accused had any fight with PW-5 Nayak Jagdish Kumar on
05.10.2013 at about 9.00-9.30 pm or he being ever told by PW-5 about any such quarrel between him and the appellant/accused. PW-5‟s version of grudge being harboured by the appellant/accused is not supported even by
PW-25.
5.5. Ld. Counsel also argued that the prosecution has failed to prove the motive behind the commission of time. It has not been proved that the appellant/accused had any previous enmity with Nayak Jagdish Kumar/PW-
5, who was allegedly targeted by the appellant. Further, the prosecution has failed to prove the vital fact viz, the cot over which the deceased was lying, was allocated to PW-5/Jagdish Kumar; PW-5 Jagdish Kumar himself has not stated in his testimony that the cot on which the deceased was sleeping, was allotted to him. It was also argued that it was highly improbable that the appellant would commit the crime in the presence of so many persons.
5.6. Ld. Counsel for the appellant/accused argued that it has come on record that every bed had a mosquito net. PW-4 Dr. Neelima Mishra has stated that if there was a mosquito net on the cot, such type of injuries as suffered by the deceased, were not possible.
5.7. Ld. Counsel for the appellant/accused further argued that even the
FSL result Ex. 32/A renders the prosecution story doubtful as no DNA profile could be generated from the iron pipe Ex. 5 and the DNA on the clothes of the appellant/accused was also found dissimilar to that of DNA on the clothes of the deceased.
5.8. Ld. Counsel for the appellant/accused lastly argued that even if the prosecution story is accepted, at the maximum, offence under Section 304
IPC is made out as there was no intention/motive on the part of the appellant/accused to kill the deceased.
6.0 Learned Prosecutor on the other hand argued that it is a fit case for conviction under Section 302 IPC as the prosecution case is totally supported by PW-1/eye witness to the incident, who has categorically deposed that after about 10 to 15 minutes of retiring to the bed, he heard the noise of „pat pat‟/of beating; on getting up, he saw that Sepoy Sajjan who was lying on the cot near the gate of the barrack, was being assaulted on his head by the appellant/accused with an iron rod. On seeing this, PW-1 raised alarm, on which, other sepoys also woke up and despite his and PW-11 Nayak Bharat
Singh efforts to nab the appellant/accused, he fled away from the spot.
6.1. Ld. Prosecutor further argued that PW-1 has categorically stated that at that time, the appellant/accused was wearing a sando under vest and the appellant‟s face could easily be seen in that light at the entrance of the barrack. He further submitted that the PW-1 withstood the test of cross- examination and has remained consistent and cogent in his deposition. His deposition is also in line with his initial statement to the police and there is no material inconsistency or contradiction in his versions. Further, his evidence is duly supported by PW-11 Nayak Bharat Singh, PW-2 Nayak
Ramesh Kumar and other witnesses, who have remained consistent and cogent in their deposition.
6.2. Learned Prosecutor also argued that as per the testimonies of these witnesses, the appellant‟s behaviour in the unit was not good as the appellant was indisciplined and was not good at performing his duties. PW-5 Nayak
Jagdish in his deposition has stated that on 05.10.2013 at about 9 pm, the appellant/accused was under the influence of alcohol and had thrown a slipper at his face and in response, he (PW-5) had struck the appellant/accused with a wooden danda. On which, the appellant/accused had abused and threatened him by saying, “Aaj raat mai tera kaam tamaam kar doonga, tujhe zinda nahi chorunga”. After the said altercation, he got scared and went to the room of Hawaldar Jeet Singh to sleep. At around
12:40 pm, Nayak Bharat and Dilsher informed him of the incident involving the appellant/accused and the victim. PW-5 also deposed that the appellant probably assaulted the victim mistakenly believing the victim to be PW-5.
PW-5 thus proves the motive for the crime.
6.3. Learned Prosecutor further argued that PW-10 Dr. Apoorv D. Singh prepared the death certificate Ex.PW-10/A of the victim, observing that the condition leading to death of the deceased was “severe head injury with multiple facial fractures”. Further, PW-23 Dr. Lohith Kumar proved the victim‟s postmortem report Ex. PW-23/A, wherein multiple head and facial injuries were noted and the cause of death was opined to be shock and hemorrhage as a result of ante mortem injury sustained to head consequent upon blunt force impact, and the injury to the head was opined to be sufficient to cause death in the ordinary course of nature. The appellant got recovered the iron pipe used by him in the offence which was seized vide
Seizure Memo Ex. PW 14/B. Vide subsequent opinion Ex. PW23/B, PW-23
Dr. Lohith Kumar after examining weapon of offence (iron pipe/rod) opined that the injuries mentioned in the postmortem report could have been caused by the said weapon.
6.4. Learned Prosecutor further argued that the above evidence points unerringly towards the guilt of the appellant/accused that the appellant/accused assaulted the deceased Sajjan Kumar believing him to be
Nayak Jagdish Singh with an iron rod, causing injuries on his person, which resulted in his death; and he subsequently fled and tried to hide. In light of the above, the conviction and sentence of the appellant is liable to be upheld and the appeal is liable to be rejected.
7.0 We have duly considered the submissions made by both the sides and have perused the record.
8.0. PW-1 Sepoy Ishwar Singh deposed that he was posted in Infantry
Battalion, TA 150, Mod Line, Delhi and on 05.06.2013, which he clarified to be 05.10.2013, at about 2.00 pm he had gone to Prayer Ground, Delhi Cantt.
After performing his duty, he along with N.K. Nayak, Ramesh Kumar, Sepoy Mahavir, Sepoy Sunil and Sepoy Sheetal, returned to his barrack at about 12:30 am. After freshening up, he lied down on his cot. Ten-fifteen minutes thereafter, he heard a loud noise „marne pitne ki awaz sunai di, pat- pat awaz sunai di‟. On hearing which, he got up and noticed that one person, who was having danda/iron rod in his hand, was assaulting Sepoy Sajjan, who was lying on the cot near the gate of the barrack. On seeing the same, he (PW-1) screamed and called out to him, who was there? On hearing his scream, other soldiers including the sepoy Sajjan (later on clarified to be nayak Bharat Singh/PW-11,) who was sleeping on the cot next to his (PW-
1‟s) cot, also got up. He along with PW-11 Nayak Bharat followed the said person who assaulted the deceased Sepoy Sajjan and in the light of the veranda, they saw that it was the appellant/accused and also noticed that the appellant/accused who was wearing a sando vest, was holding an iron rod in his hand. PW-1 also stated that the appellant/accused could not be apprehended and even Nayak Bharat/PW-11, who was chasing the appellant/accused alongwith him, could not nab the appellant/accused. PW-1 also stated that he returned to the barrack and noticed that the Ct.
Sajjan/deceased was bleeding from nose, ear and mouth and blood had spilled on the cot. Other soldiers were also present. With the help of Nayak
Subedar Pritam Chand/PW-19, he (PW-1) shifted the deceased to the Base
Hospital, Delhi Cantt. and information was given to Police Station Delhi
Cantt.
8.1 PW-1 also stated that his statement Ex. PW-1/A, (as referred to above), was recorded. The IO had taken into possession, the mosquito net, which was installed on the cot of the deceased, blood stained bed sheet, blood stained saleti colour kota stone, sample kota stone, from near the place of occurrence, where the blood of the deceased was spilled. PW-1 identified the said bed-sheet Ex. P-1 and also identified the mosquito net/Ex. P-4 stating that it was the same mosquito net, which was placed below the head of the deceased and was seized. He also identified bed sheet Ex. P-2 and one brown colour loi Ex. P-3 belonging to the deceased, which were seized by the IO. PW-1 also testified that on 06.10.2013, crime team had visited the place of incident and had taken photographs and conducted the other proceedings.
8.2. In his cross-examination, PW-1 reiterated that he had returned from the duty around 12.00/12.15 am on the intervening night of 05-06.10.2013 and lied down on his cot at around 12.30 am. He further stated that sepoy
Sajjan Kumar had not accompanied them to the parade ground duty. Though, PW-1 stated that light of the barrack was switched off and the other persons in the barrack were sleeping, when he returned, he explained that he could see and identify the appellant/accused in the light of the veranda. He categorically denied that he had not seen the appellant /accused at the time of offence and while he was running. He also denied that the appellant/accused was not present at the time of the incident in the barrack and went on to state that there were many persons, who had seen the appellant/accused. PW-1 also denied that the deceased had actually met with an accident and being a relative of the deceased, he (PW-1) has falsely deposed against the appellant/accused.
8.3 Testimony of PW-1/Ishwar Singh is consistent and inspires confidence and could not be impeached in cross examination.
9.0 Testimony of PW-1/Ishwar Singh is corroborated by PW-11 nayak
Bharat Singh, who saw the appellant/accused running with a rod in his hand and had chased the appellant/accused along with PW-1. Nayak Bharat
Singh/PW-11 deposed that on 05.10.2013, at about 12.40/12.45 am, he heard sepoy Ishwar/PW-1 saying „kon hai, kyun maar raha hai’, on which he got up from his charpai/cot and in the light coming from the entrance of the barrack, he saw the appellant/accused wearing a white coloured sando vest and a black colour pant running away with an iron pipe/iron rod or some wooden rod, which he could not identify at that time. He ran after the appellant/accused to apprehend him; the accused ran towards ECHS line.
He then knocked at the door of DHM Jeet Singh/PW-25. When PW-25 opened the door, he saw nayak Jagdish/PW-5 sleeping there. He narrated the entire incident to PW-25 Jeet Singh, who made a call to MT, whereafter a gypsy arrived. He along with nayak Jagdish/PW-5, Subedar Pritam/PW-19 and driver took Sajjan Kumar/deceased to the base hospital. In response to a leading question put by the Ld. Prosecutor, PW-11 stated that he had seen the face of the appellant/accused properly in the light of the veranda. He also admitted that Sajjan Kumar/deceased, who was attacked by the appellant/accused later died in the hospital.
9.1 Nothing worthwhile could be extracted in cross-examination of PW-
11 to shake his testimony. Rather, in response to a question in his cross- examination, PW-11 stated that in his statement u/s 161 Cr.P.C, he has stated that he had carefully seen the face of the appellant/accused. Interestingly, PW-11 was not confronted with his statement under Section 161 Cr.P.C to point out otherwise. Perusal of the PW-11‟s statement under Section 161
Cr.P.C on record shows that PW-11 has categorically stated that he had clearly seen the face of the appellant/accused in the light of the corridor.
Except putting a general suggestion that he is deposing falsely, nothing specific was put to PW-11 in his cross-examination that he had not heard
PW-1 calling out, „kon hai, kyun maar raha hai‟ or regarding PW-11 seeing the appellant/accused holding a rod (iron/wooden) and chasing the appellant/accused.
10.0 Even PW-21 nayak Dilsher deposed that on the intervening night of
05/06.10.2013 at about 12:31 am he had heard PW-1 Sepoy Ishwar shouting
“Kyun maar raha hai” and had woken up and saw one person running away from the barrack. He also deposed that later on he came to know that the appellant/accused had injured Sepoy Sajjan/deceased on his head and ran away; and that Sepoy Sajjan had sustained injuries on his head and was bleeding profusely. PW-21 in his cross examination stated that PW-1/Ishwar
Singh had shouted as above at about 12:30-12:45 am.
10.1 As PW-21 did not fully support the prosecution case, he was cross examined by the learned Prosecutor. In his said cross examination, PW-21 also admitted that when he went to wake up Nayak Jeet Singh/PW-25, he found that Nayak Jagdish/PW-5 was also sleeping there. He had informed
PW-25/Jeet Singh that the appellant/accused after beating Sepoy Sajjan
Kumar/deceased, had run away. He admitted in his cross examination by learned defence counsel that he could not see the person who ran away from the barrack after attacking the deceased. PW-21‟s said admission and statement that he came to know later that the person who ran away was the appellant/accused shows his truthfulness .
11.0. Testimonies of PW-1/Ishwar Singh and PW-11/Nayak Bharat that the deceased was removed to Base Hospital is corroborated by PW-19 Subedar
Pritam Singh, who has testified that on 05.10.2013, at about 10.00 pm, he had returned to his quarter/guard room for rest; and at about 1.00 am, Hawaldar Jeet Singh/PW-25 informed him that Sajjan Kumar/deceased had been injured by the appellant/accused by beating him with iron pipe. He had taken sepoy Jagdish/PW-5 and nursing assistant and the Ct. Sajjan/deceased and got him admitted to the Base Hospital. Testimony of PW-19 has remained uncontroverted as he was not cross-examined. This fact is also corroborated by PW-25 sepoy Jeet Singh, PW-5 Nayak Jagdish Kumar and
Nursing Assistant PW-30 Nayak Karamveer Singh.
11.1 PW-25 Sepoy Jeet Singh deposed that on 05.10.2013 he was posted in
150 Infantry Battalion TA Punjab as Battalion Hawaldar Major. On that day, at about 12:45 am, Nayak Bharat/PW-11 and Nayak Dilsher/PW-21 came to him and informed him that the appellant/accused had assaulted Nayak Sajjan Singh with a rod and had run away. He also stated in his cross examination that bed of the deceased was towards the gate which came first from the main road, thus corroborating the testimony of PW-1 and PW-11. PW-25 also stated that he immediately informed the Suprervisor/Subedar. Subedar Major Mohender/PW-26 arrived and a check roll call was called for the staff and the appellant/accused was not present. In his cross examination, PW-25 even gave further details stating that he had called the roll call at about 1:30 am and categorically denied that no roll call was made on 06.10.2013. PW- 25 also deposed that the appellant/accused was apprehended by Sepoy Cook Vijay PW-16. It has also come in the testimony of PW-25 that PW-5 Nayak Jagdish had slept in his room, though he stated in his cross examination that PW-5 had told him that he would sleep in his room as there were lots of khatmals (tick) in his bed. 11.2 The fact that the appellant/accused was missing from the roll call of the jawans made at about 1:30 am on 06.10.2013 has also come in the testimony of PW-26 Mohinder, who has stated that Subedar Adjutant Kishan Chand called him over phone and told that the appellant/accused had run away after beating Sajjan Kumar/deceased; and that he had asked the Subedar Kishan Chand to order Battalion Hawaldar Major Jeet Singh/PW-25 to make a roll call of the jawans. PW-26 stated that the appellant/accused was found missing in the roll call. He also stated that he received information at about 5 am that Sepoy Vijay/PW-16 has caught hold of the appellant/accused. His deposition has remained uncontroverted, as PW-26 was not cross examined. 11.3 In view of the above, it is established that the appellant/accused was found missing when roll call of jawans was called at about 1:30 am on 06.10.2013. 11.4 PW-16 Sepoy Cook Vijay Kumar further corroborated the testimonies of PW-25 and PW-26 and stated that on the night of 06.10.2013 at about 1:00 am, Subedar Mohinder Singh/PW-26 had asked all the jawan to fall in line as appellant/accused accused has assaulted the Sepoy Sajjan/deceased and had run away after causing injuries to him. After falling in line, Sepoy Devender Maan/appellant/accused was not found present. They were asked to search for him. Till 4:00 am, despite search, the appellant/accused could not be found. However, after preparing langar, when he went to the washroom at about 5 am, the appellant/accused was found hiding on the other side of the wall of the toilet. He caught the appellant/accused and raised hue and cry. The appellant/accused was handed over to Subedar Azad PW-14, who was also searching for the appellant/accused. Nothing of substance could be extracted in his cross examination so as to shake his testimony. 11.5 Testimony of PW- 16 Sepoy Cook Vijay is corroborated by PW-14 Subedar Azad who has deposed about the custody/control of the appellant/accused being handed over to him by cook Vijay/PW-16. In his cross examination, PW-14 stated that he was called by cook Vijay Kumar/PW-16 through messenger, although, he could not give the name of the messenger. However, he further stated that after taking the custody of the appellant/accused, he had informed his Senior Subedar Major Mohinder Singh. He stood by his testimony in cross examination. Nothing of substance could be extracted in his testimony so as to reflect on his credibility. 12.0. It is the case of the prosecution that the appellant/accused wanted to avenge his slight/ill-treatment at the hands of PW-5 nayak Jagdish Kumar, but killed Nayak Sajjan Kumar/deceased mistaking him for Jagdish Kumar. 12.1. PW-5 Nayak Jagdish Kumar has deposed that he and the appellant/accused were posted in the same unit and that behavior of the appellant/accused in the unit was not good as he was indisciplined and was not good at performing his duties. There were entries against him regarding his quarrels in the unit. PW-5 further deposed that on 05.10.2013, at about 9.00 pm, the appellant/accused had consumed liquor and had thrown a slipper on his face, on which, he gave one/two blows to the appellant/accused with a small danda, whereafter the appellant/accused abused and threatened him, “aaj raat me tera kam tamam kar doonga, tujhe jinda nahi chorunga‟. PW-5 has further stated that on this, he got frightened and left his barrack and went on to sleep in the room of Hawaldar Jeet Singh (PW-25). At about 12.40 am, he had heard noises outside and was woken up by PW-11 nayak Bharat and PW-21 Dilsher and was told that after mercilessly beating up the Sajjan Kumar/deceased, the appellant/accused, had run away. He along with PW-25 Jeet Singh went to barrack T-78 and found that Sajjan Kumar/deceased was badly injured and bleeding from his ear, nose and head. He corroborated the testimony of PW-1 and PW-11 that Gypsy was called and he (PW-5) along with PW-19 Subedar Pritam Singh and nursing assistant Nayak Karamveer/PW-30 and one or two more officials took the deceased to the Base Hospital. PW-5 also deposed that he was also informed by PW-2 Nayak Ramesh Kumar that the appellant/accused was searching for him at night at about 12.30 am and perhaps the appellant/accused assaulted Sajjan Kumar/deceased believing him to be PW-5. PW-5 has stood by his testimony in cross examination. In his cross-examination, he also stated that the appellant/accused used to harbor grudge against him as he (PW-5) used to discipline the appellant/accused regarding his verbal abuses and consuming liquor. PW-5 categorically denied that Sajjan Kumar/deceased had met with a road accident and was not beaten by the appellant/accused . 12.2. It is the appellant/accused‟s own case that he had a quarrel with PW- 5/Jagdish Kumar on 05.10.2013 in which he was beaten by PW-5. Appellant/accused himself put to PW-5/Jagdish Kumar in cross-examination that the appellant had given money to PW-5/Jagdish Kumar and was demanding the same back, though the same was denied by PW-5. It was also suggested to PW-5 that he (PW-5) had hit the appellant/accused and had broken left hand of the appellant/accused. PW-5 admitted having given danda blows to the appellant/accused though he denied having fractured the appellant/accused‟s hand. It has come in the testimony of PW-3 Dr. (Major) Bhanu Kumar Sharma that on 05.10.2013 he examined the appellant/ accused, who was having fracture in left arm/shaft of radius. Even to PW-14 Subedar Azad, the appellant/accused himself suggested in cross examination that a quarrel had taken place between the appellant/accused and PW-5/ Nayak Jagdish Kumar; and PW-5 had assaulted him/fractured his (accused‟s) left hand on 05.10.2013. PW-14 expressed his ignorance about the same. PW-14/Subedar Azad categorically denied that the deceased had met with an accident in Sadar Bazar and thereafter had a quarrel in which he received injuries. 12.3 PW‟5‟s testimony also finds corroboration in the testimony of PW-2 Nayak Ramesh Kumar. PW-2 deposed that on 05.10.2013 while he was posted as Nayak in 150- TA Batallion, he returned to his barrack from Parade ground around 12.30 am. The appellant/accused Devender Mann, who was wearing a sando vest and blue-black pant of uniform met him outside his barrack and asked about the location of charpai of nayak Jagdish. He (PW-2) told to the appellant/accused that he was not aware about the same. PW-2 has further stated that after about 10 to 15 minutes, he heard, „halla-gulla‟ and on inquiry, a sepoy told him that the appellant/accused had caused serious injuries to the Sajjan Kumar/deceased with iron pipe. He also deposed that the injured was then admitted to Base Hospital, but passed away, the next morning. In his cross-examination, PW-2 stood by his testimony and denied that the appellant/accused had not met him on 05.10.2013 and that he is deposing falsely at the instance of Subedar Kishan. PW-2 rather stated that he had informed his Senior Officer about the fact that the appellant/accused was asking for Nayak Jagdish/PW-5. Though he admitted that he, the appellant/accused and Nayak Jagdish/PW-5 were in the same battalion and that he, Sajjan Kumar/deceased, Jagdish/PW-5, the appellant/accused were well aware about the location of each other being posted in same battalion. Vide testimony of PW-2, it has come on record that the appellant/accused had inquired as to where was PW-5 Nayak Jagdish Kumar sleeping that night. 12.4 PW-14 Subedar Azad has deposed that he along with three-four army officials had recovered the iron pipe (Ex. 6) from a nali behind ECH building, which was seized vide seizure memo Ex. PW 14/B. In his cross examination by learned Prosecutor, PW-14 stated that the said iron pipe was having blood stains. He has also stated that on 07.10.2013, the IO had brought the appellant/accused to the Barrack, and the appellant/accused had also disclosed about the iron pipe in nali behind ECH building vide pointing out memo Ex. PW14/F. In his cross examination, PW-14 has stated that nothing was recovered at the pointing out of the accused. IO PW-31 has deposed that PW-14 Subedar Azad Singh had handed over to him, the articles belonging to the appellant/accused and also stated about iron pipe being seized vide seizure memo Ex. PW 14/B. PW-31 in his cross examination admitted that nothing was recovered after the alleged disclosure statement of the appellant/accused. Thus evidently, iron pipe (Ex. 6) was not discovered/recovered at the instance of the appellant/accused pursuant to his alleged disclosure. Same was recovered/retrieved by PW-14 Subedar Azad Singh and three-four other army officials after the incident; and that PW-14 vide handing/taking over certificate Ex. PW 14/D, handed over the same (besides other articles) to IO/PW-31, after informing his seniors. Ex PW- 14/F pointing out memo records that the accused pointed towards a dry nali behind ECHS building behind TA-75 Barrack stating that he had thrown iron pipe (with which he had assaulted the deceased on his head) in that nali and which he got recovered to PW-14 Azad Singh from the said nali. Said iron pipe (Ex 6) along with other exhibits was sent to FSL; as per FSL report Ex. PW 32/A, blood was detected on the said iron pipe though no DNA profile could be generated from source of Exhibit 6 (iron pipe). 12.5 In view of the above, vide eye witness account of the incident by PW-
1 Ishwar Singh corroborated by PW-11 and corroboration of their testimonies by PW-21, PW-25, PW-26, PW-2, PW-5, PW-14 and PW-19, it is established that a quarrel had taken place between the appellant/accused and the PW-5 Nayak Jagdish Kumar on 05.10.2013; in the said quarrel, PW- 5 had hit the appellant/accused with a wooden danda (it is the appellant‟s own case that PW-5 had fractured his left hand) and the appellant/accused had threatened him (PW-5) with life; in the intervening night of 05/06.10.2013, at about 12:30 am, the appellant/accused had inquired from PW-2 Nayak Ramesh Kumar about the location of charpai of PW-5 Nayak Jagdish Kumar. It is also established that after being threatened by the appellant/accused, out of fear, PW-5 Nayak Jagdish Kumar did not sleep on his own cot that night and went to sleep in the room of PW-25 Jeet Singh. In view of testimony of PW-1 and PW-11, identity of the appellant/accused is established beyond reasonable doubt. It is evident that mistaking Sepoy Sajjan Kumar/deceased for PW-5 Nayak Jagdish Kumar, the appellant/accused repeatedly assaulted Sepoy Sajjan Kumar with iron pipe on his head and face, while he was sleeping. On alarm being raised, he ran away and could be apprehended later in the morning by cook Vijay/PW-16. 12.5.[1] Further, soon after the incident, PW-14 along with three-four army officials recovered the iron pipe having blood stains from dry nali behind ECH building. As per FSL report Ex PW32/A, blood on the said iron pipe (Ex. 6) was detected, though no DNA profile could be generated from the source of Ex. 6 (iron pipe). Recovery of blood stained iron pipe soon after the incident, its seizure/handing over to IO/PW-31 vide Ex. 14/D and sending of the same to FSL, FSL report Ex. PW32/A confirming presence of human blood on it, lends credibility to the version of the witnesses PW-1 and PW-11 that the appellant/ accused assaulted the deceased with the said iron pipe(Ex 6). In this backdrop, pointing out of the place where the iron pipe was thrown by the appellant/accused, which otherwise may not have been looked into, assumes significance. 12.[6] In view of the evidence on record, as discussed above, it is also established that Nayak Sajjan Kumar/deceased was taken to Base Hospital, where he died later in the morning i.e., on 06.10.2013. Though, the appellant/accused meekly tried to suggest to PW-1 that he has falsely implicated him, being a relative of the deceased, no explanation is offered by the appellant/accused as to why other prosecution witness have deposed against him. Further, no evidence in defence was led by the appellant/accused to demonstrate his false implication.
13.0 Testimony of above witness is further corroborated by medical evidence/testimony of doctors who examined deceased and conducted postmortem. PW-4 lieutenant Colonel (Dr. Nilima Mishra) proved MLC Ex.PW4/A, whereby the Sepoy Sajjan Kumar/deceased was first examined. She has testified that on the intervening night of 05/06.10.2013 at about 12:55 am, Sepoy Sajjan Kumar was brought to the Base Hospital with the alleged history of trauma by physical assault to the head by a fellow soldier after an altercation; and the injured suffered right black eye/coughing out blood, nasal bleed positive from both nostrils and right ear bleed and was shifted to ICU. The said injuries were not disputed by the appellant/accused as PW-4 was not cross examined in that regard. Though PW-4 in her cross examination stated that if there is a mosquito net on the cot such type of injuries are not possible. Further, PW-10 Dr. Apoorv Singh who proved death certificate Ex. PW10/A testified that vide said certificate, he has opined the death was because of severe head injury with multiple facial fractures. His testimony remained uncontroverted as PW-10 was not cross examined. 13.[1] Vide post mortem report no. 1579/13 Ex. PW23/A and testimony of PW-23 Dr. Lohith Kumar who prepared said report, it has come on record that the deceased suffered following injuries. Relevant portion of the post mortem report reads as under: “Post mortem Report No. 1579/13 Dated: 7/10/13 Time:
02.06 pm …………. Name: Sajjan Kumar Age: 30 years …………. Hospital Records: Date & Time of Admission: 06/10/13 at 00.55 am MRD No.:686/10/13 (Base Hospital) Date & time of Death: 06/10/13 at 10.15 am BRIEF HISTORY AS PER I/O: Alleged history of assault while he was sleeping on 06/10/13 around 00.55 am. He was taken to Base Hospital Delhi Cantt where he was expired during the course of treatment on 06/10/13 at 10:15 am. ………….. EXTERNAL EXAMINATION (Injuries etc.)
1. Bluish discoloration present around right eye. (Black Eye).
2. Bluish contusion 12 cm x 1.[3] cm present over upper part of right side of neck below the right ear extending 8 cm lateral to right angle of mouth up to right mastoid process. Deformity and bony crepitation present below the underlying contusion with fracture of ramus or right mandible and right mastoid bone present. Extravasation of blood present in surrounding areas.
3. Stitched lacerated wound, 3 cm in length with 3 sutures in situ. On opening it is bone deep present horizontally over outer aspect of right eye brow.
4. Reddish abrasion 2 cm x 1 cm present over right cheek.
5. Reddish abrasion 4 cm x 3 cm 3 cm x 1cm present over the front of chest, 4 cm medial to the left nipple.
INERNAL EXMINATION: ………. Head Scalp: extravsation of blood present all over the subscalp region. Skull: comminuted fracture involving right fronto-temporoparietal bone extending into the base of skull. Fracture of right orbital plant, right zygomatic bone and ramus of right mandible present. Brain: Brain matter congested and oedematous. Dura torn below the fractured area. Thick film of subdural haemorrhage and patchy subarachnoid hemorrhage present all over the cerebrum. Hemorrhage contusion present over right frontotemopo-parietal region. Time since death: About twenty eight hours. Opinion: Death is due to Shock and hemorrhage as a result of ante-mortem injuries sustained to head consequent upon blunt force impact. Injury to the head is sufficient to cause death in ordinary course of nature.” 13.1.[1] Above injuries on the body of Sajjan Kumar/deceased, support version of the above witnesses about the nature of injuries caused by the appellant/accused. Further, it has been opined by Dr Lohith Kumar PW-23 that death was due to shock and hemorrhage as a result of ante-mortem injuries sustained at the head consequent upon blunt force impact; and that injuries to the head were sufficient to cause death in ordinary course of nature. Vide his subsequent opinion Ex. PW23/B, PW-23 Dr. Lohith Kumar after examining weapon of offence (iron pipe Ex.6) opined that the injuries mentioned in the postmortem report could have been caused by the said weapon. In his cross examination, PW-23 Dr. LohithKumar categorically stated that the type of injuries as suffered by the deceased are not possible in an accident.
14.0 Much was argued by learned counsel for the appellant/accused that as per DD no. 7A Sepoy Sajjan Kumar/deceased met with an accident and died because of that. Even to witnesses PW-2/Nayak Ramesh Kumar, PW- 5/Jagdish Kumar and PW-11/Nayak Bharat Singh, it was suggested that Sepoy Sajjan Kumar/deceased had suffered injuries in an accident, which was categorically denied by PW-5 and PW-11; and PW-2 expressed his ignorance about the same. In view of the testimony of the eye witness PW-1 and PW-11, who saw the appellant/accused assaulting the deceased and running away and that of other witnesses and the appellant/accused fleeing after the incident, there is hardly any substance in this plea. Any such mention in PCR Form Ex. PW8/A about the deceased being admitted to hospital on account of accident may have been a communication gap and is hardly of any significance in view of the testimony of witnesses and medical evidence which has come on record. Further, PW-23‟s testimony that kind of injuries which were suffered by the deceased on head are not possible due to fall from motor cycle on a hard surface or by falling on an iron grill. Same rather belies the appellant‟s plea. 14.[1] Learned counsel for the appellant/accused also argued that the statement of PW-1/eye witness was recorded at 01.15 pm on 06.10.2013 whereas the FIR which was registered on the basis of his statement was registered at 07.10 am on 06.10.2013. Same itself creates doubt about the prosecution story. Suffice it to state that as per Ex. PW-1/A, after recording of the statement of PW-1 Sepoy Ishwar Singh, the rukka was sent to the PS at 1:15 pm on 06.10.2013; on which, the FIR/Ex. PW 22/A was registered at 1:40 pm on 06.10.203. Thus, there is hardly any substance in the argument of the learned counsel. 14.[2] Ld. Counsel for the appellant/accused further argued that the learned Trial Court did not appreciate that in the post-mortem report Ex. PW-23/A, the date and time of admission of the deceased is mentioned as 00.55 am on 06.10.2013. Whereas, vide PCR Form Ex. PW8/A, first PCR call was made at about 6.51 am on 06.10.2013 mentioning that the deceased Sajjan Kumar had met with a traffic accident. How could the deceased be admitted in the hospital at 00.55 am i.e. 6 hours prior to meeting with the accident reported at about 6.50 am. He also argued that as per PW-1, the incident took place somewhere around 1.00 am, but the matter was reported to the police for the first time at 11.00 am i.e. after about 12 hours of the incident. It is seen that Ex. PW4/A/MLC of the deceased/Sajjan Kumar, records „date and hour of arrival-06.10.2013 00:55‟; and „date and time of admission-06.10.2013 03:57 hours‟. In view of the same and testimony of PW-4 Dr. Neelima Mishra and the fact that the post mortem report Ex. PW 23/A, in „Brief History‟ also records the time of assault on the deceased around „00:55 am‟ on 06.10.2013 and further records that the deceased was taken to base hospital Delhi Cantt., where he expired during the course of treatment on 06.10.2013 at „10:15‟. Even the aforesaid prosecution witnesses have deposed to the same effect. Thus, it has come on record that Sajjan Kumar/deceased was taken to Base hospital Cantt around that time i.e., 00:55 hr; his condition being serious, he was shifted to ICU, where he later died. Thus, the aforesaid argument of the learned counsel for the appellant/accused lacks merit. 14.[3] In view of the categoric testimony of the aforesaid witnesses about assault on head of Sepoy Sajjan Kumar by the appellant/accused with an iron pipe and taking into account the post mortem report Ex. PW23/A, subsequent opinion PW-23/B and the testimony of PW-23, it is established beyond doubt that the deceased died due to injuries caused on the head with the iron pipe/rod Ex-6. In view of the same, merely because PW-4 in her cross examination stated that if there was a mosquito on the cot, the type of injuries suffered by the deceased could not have been possible, does not impact the prosecution case in any manner. More so, as it has come in the testimony of PW-1 that the mosquito net (Ex P[4]) was placed below the head of the deceased. 14.[4] Learned counsel for the appellant/accused also argued that blood found on the appellant‟s vest did not match with the blood of the deceased and no blood was found on his pants; and further, even no report could be generated with respect to the blood found on the appellant‟s slippers and iron pipe. 14.4.[1] As per FSL report Ex PW32/A and testimony of PW-32, blood was detected on pair of slippers (Ex. 5) and sando banyan (Ex. 7a) of the appellant/accused and also on iron pipe (Ex. 6) but no blood was detected on the appellant/accused‟s pants (Ex. 7b). As per the said report, no DNA profile could be generated from source of Exhibits 5 (slippers) and 6 (iron pipe). Result of DNA analysis mentions that DNA profile generated from source of Ex. 7a (sando banyan of the appellant/accused) was found to be dissimilar to the DNA profile generated from source of Ex. 8 i.e. blood gauze of the deceased. It is a settled position of law (Ram Naresh Vs State of Chattisgarh (2012) SCC Online SC 213) that indefinite conclusion or the blood not being found/not matching with that of the deceased, does not ipso facto entitle the accused to acquittal. The expert report has to be examined in conjunction with the oral and medical evidence. As already discussed above, in view of the cogent and reliable testimony of the eye witness PW-1, PW-11 and other witnesses as discussed above and the medical evidence which come on record, this court is of the considered opinion that inconclusive FSL report does not entitle the appellant/accused to acquittal.
15.0 As far as the appellant/accused‟s plea that in the facts and circumstances of the case, at maximum, offence under Section 304 IPC is made out as there was no motive or intention on the part of the appellant/accused to kill the deceased. Suffice it to state that the appellant/accused, an army Jawan, pursuant to threat extended by him to PW-5/Jagdish Kumar to kill him to avenge his beatings at the hands of PW-5 Jagdish Kumar earlier in the day, had made a pre-meditated assault on the head and face of the deceased Sepoy Sajjan Kumar with iron pipe mistaking him for PW-5/Jagdish Kumar, causing multiple facial and head fractures. The appellant/accused had come prepared to take revenge and executed his plan. In view of the same, we find no merit in the appellant‟s contention.
16.0 In view of the above, we find no reason to interfere with the impugned judgment. Appeal is accordingly dismissed.
17.0. Copy of the judgment be uploaded on the website and be sent to the Superintendent Jail for updation of record and intimation to the appellant.
(POONAM A. BAMBA) JUDGE (MUKTA GUPTA)
JUDGE FEBRUARY 24, 2023/g.joshi