Delhi District Court
State vs . Babu Lal on 8 April, 2009
1
IN THE COURT OF MS. REENA SINGH NAG: ADDL.
DISTRICT & SESSIONS JUDGE-2 (EAST): KKD: DELHI
SC No. 250/04
FIR No. 18/04
PS Mandawali
U/s. 302 IPC
State Vs. Babu Lal
State
Versus
1. Babu Lal
S/o. Swami Prasad @ Pota Maharaj
R/o. Village Kankua, PS. Mahokanth,
Distt. Mahoba, U.P.
Date of Institution: 28.06.04
Date of final arguments: 28.03.09
Date of judgment: 04.04.09
JUDGMENT
1. Prosecution version is that on 9.1.04 on receipt of wireless message Additional SHO PS Mandawali namely Inspector Harish Chander Yati reached at H. No. CA/4 gali No.3, Chander Vihar near Baba Balak Nath Temple, where W/ASI Chanchal Sharma alongwith constable Raj Kumar were already present, who produced DD No.17A before Inspector Harish Chander Yati, which interalia Page 1 of 43 FIR No. 18/04, St. Vs. Babu Lal 2 mentioned that at 11 hours it was informed by ASI Pardeep Lakra that near Chander Vihar public school, paternal uncle ( Tau) has killed one boy. Telephone number was mentioned as 22477035. At the spot one boy namely Pardeep @ Sonu son of Ram Shanker Dubey @ Ramesh r./o the above address aged about 14/15 years height 5'6" wheatish complexion, who was wearing school uniform (white shirt and light blue pant and red sweater) was found dead and on his head injuries appeared to have been caused with blunt weapon. No other eye witness except real sister aged 3 years namely Dimple, of deceased was met. Dimple was again and again saying while weeping that " Tau Ne Mara Hai". Tehrir was written by Addl. SHO under section 302 IPC and he got the FIR registered by sending the ruqqa through constable Raj Kumar and he himself carried out investigation. During investigation, the spot was got inspected by the Crime Team and photographed. Exhibits were lifted, proceedings were conducted under section 174 Cr.P.C. Autopsy was got done and the statement of witnesses was recorded. Site plan was prepared. Accused was arrested and his disclosure statement was recorded in which it has been tried to project that accused Babu Lal was living with the family of deceased and he was unmarried and he developed intimacy with mother of deceased namely Rajni and he also used to maintain the family of Rajni as her husband Ramesh was not looking after them. He was not real brother of Ramesh but they were from the same caste and he had developed illicit relations with wife of Ramesh. He had kept Page 2 of 43 FIR No. 18/04, St. Vs. Babu Lal 3 Rs.8000/- in the pocket of his pant and he doubted that Pardeep @ Sonu had committed theft of that cash amount as earlier also he had stolen Rs.200/- and spent the same on gambling and he was also discordial and behaved rudely with accused as a result accused got frightened thinking what, if Sonu @ Pardeep learnt about his illicit relationship with his mother ? When confronted by accused with the allegations of theft of Rs.8000/-, Sonu misbehaved with him and denied the allegations and in rage accused threw him on the floor and struck his head with the sil batta, which resulted in splashing blood on the clothes of accused. Sil batta was also seized during investigation. He got recovered his blood stained clothes from the jhuggi of one of his acquaintance namely Hari Chand. In the postmortem report the cause of death was opined as cranio cerebral damage consecutive upon blunt force impact to the head. All injuries were antemortem in nature and recent in duration. Head injury was sufficient enough to cause death in ordinary course of nature. During investigation exhibits were sent to CFSL Calcutta. CFSL report was received subsequently and placed on record. After completion of investigation, challan was filed.
2. After committal, charge was framed against the accused under section 302 IPC on 22.7.04, to which accused pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined the Page 3 of 43 FIR No. 18/04, St. Vs. Babu Lal 4 following witnesses.
4. PW1 is Ranjana D/o. Ram Shanker, aged 13 years, who was examined on 11.5.05. She interalia testified that on 9.1.04 she had gone to school at about 8 a.m and in noon hour her neighbourer came to school and informed that her brother was bleeding from mouth so she went to her mother's work place and intimated her and then she alongwith her mother came back to their house and found Sonu lying on the floor with his eyes wide open. He was taken by both to hospital where he was declared dead. She further stated that brother was bleeding from his head upto the ear and he had mark of injury on his right eye. As per her, her younger sister Dimple was present in the house with her brother and she was crying repeatedly " Tau Ne Mara Hai". This witness further disclosed that Tau is Babu Lal ( referring to accused), who is friend of her father and they used to address him as Tau and she also disclosed to police as to what Dimple was saying.
5. PW-2 is Rajni @ Rani mother of deceased, who had also endeavoured to support the prosecution version and stated that on 09.01.04 when she had gone to her work leaving her daughter Dimple aged 2 ½ years and son Pradeep student of 6th class, at home, her daughter and her neighbourer came to her and informed about the incident, whereupon she came to the house and saw Pradeep lying in pool of blood. He was removed to the hospital, Page 4 of 43 FIR No. 18/04, St. Vs. Babu Lal 5 where he was declared brought dead. She also proved the identification of dead body vide Ex. PW2/A bearing her thumb impression at point A. She further testified that her daughter Dimple was crying and repeatedly told that " Tau Ne Mara Hai, Tau Ne Mara Hai". She explained that Tau is no other than Babu Lal, who was friend of her husband and was working as Beldar. While giving her own details she testified that she was married with Munna Lal Dubey elder brother of her present husband Ram Shankar Dubey @ Ramesh but she could stay with Munna Lal only for 2-3 months as she alleged extra marital relationship of her former husband. She then married Ram Shankar Dubey @ Ramesh and started residing in the house, where the incident took place about two years prior to the incident. She has corroborated PW-1 that PW-1 had gone to her school where she was informed by the neighbourer about the incident, whereupon PW-1 and neighbourer came to her at her work place and told her about the incident.
Referring to accused Babu Lal, she stated that he was about 50 years old and had been visiting their house two months prior to the incident and that he was the same Babu Lal, to whom her daughter referred as Tau. She also stated that one day prior to the incident, Babu Lal had come and slept in the room and Page 5 of 43 FIR No. 18/04, St. Vs. Babu Lal 6 she had prepared tea the next morning and he left. Thereafter, she went to her job and at about 9.30 am, PW-1 informed her about the incident. Describing the scene of occurrence, she stated that near the door, one pair of chappal belonging to Babu Lal was lying totally blood stained and near head of her son one blood soaked sil and batta (Two stone pieces used for grinding masalas and chatni etc.) was lying. She had taken her son in Rikshaw and then in TSR to Mahesh Hospital, where he was declared brought dead. She also stated that all her children used to call Babu Lal as Tau.. She also identified the pair of chappals of accused lying at the spot collectively as Ex.P1, Sil Batta lying near the dead body as collectively Ex.P2 and wearing clothes of her son i.e Shirt, Pant, Sweater, Underwear and Baniyan as collectively Ex.P3. She has been cross-
examined at length.
6. PW-3 is Ram Shankar Dubey @ Ramesh husband of PW-2, who has endeavoured to support the prosecution version and also identified Ex.P1, P2 and P3 as referred by PW-2. He also stated that Page 6 of 43 FIR No. 18/04, St. Vs. Babu Lal 7 about 5-6 years prior to the incident, he met accused Babu Lal at Laxmi Nagar Chowk, where they both used to collect Beldar. He also stated that accused was on visiting terms with his brother in- law (Jija) Krishan Kumar Upadhyay, who had a shop of property dealer at West Vinod Nagar. He also claimed that about 2-3 months prior to the incident, Krishan Kumar Upadhyay had left for his village and accused Babu Lal started visiting his house (PW-3) and his children used to call him Tau. He also corroborated PW-2 with regard to the stay of accused overnight in their house before the incident. As per him, his wife left for job in the morning at about 7.45 am and accused left house but came back after 10 minutes. PW-3 took tea but accused did not take the same and stated that he was not well and would take the same later on. Thereafter, Ram Shankar Dubey @ Ramesh PW-3 left for his job and accused also joined him but after 5 minutes he came back to his house for taking tea and at that time his younger daughter Dimple and son Pradeep only were at home. PW-3 went to Prem Sagar Kabari for his job of pheri and at about 11.30 pm (sic should have been 11.30 am) one of his colleague told him about the incident, whereupon he came to the house and found number of police persons at the spot and younger daughter Dimple was repeatedly crying "Tau ne Bhaiya ko mara hai". He also corroborated PW-1 & 2 that accused was being addressed by his children as Tau. He also stated that accused was present with his son and daughter when all the family members left the house. He identified the dead body of his son as Ex.PW3/A with Page 7 of 43 FIR No. 18/04, St. Vs. Babu Lal 8 his signature at point A and seizure memo of Hawai Chappal of accused as Ex.PW3/B, seizure memo of Sil Batta as Ex.PW3/C, seizure memo of dried blood from the floor with the help of cheni and cotton and earth control vide Ex.PW3/D, E & F with his signature on all the memos at point A.
7. PW-4 is Kamlesh, who inter-alia testified that at the time of the incident, she was working as domestic maid and had gone to her job and came back to the spot at about 9.30 am and found crowd gathered at the room of Sonu @ Pradeep, so she went to the school of Anju sister of Sonu @ Pradeep as everyone was talking about the whereabouts of mother of Sonu @ Pradeep and from the school they both went to the work place of mother of Sonu @ Pradeep and informed her about the incident, from where they came back to the spot and Sonu @ Pradeep was removed to the hospital by his mother. She claimed that Dimple younger sister of Sonu @ Pradeep did not tel her anything. She was cross-examined by Ld. Addl PP but she denied the police version that on her return from her work place to the spot, Dimple daughter of her neighbourer Ram Shankar aged 3 years had told her that Tau had killed Bhaiya or that she entered that room and found Pradeep lying in pool of blood or that she narrated about the above facts to the mother of Pradeep.
8. PW-5 is Satish Chand Upadhyay from Mandawali Unche Par, who interalia testified that he was acquainted with accused Page 8 of 43 FIR No. 18/04, St. Vs. Babu Lal 9 Babu Lal,whom he identified in the court since he had visited his house twice with Ramesh @ Ram Shankar father of deceased Pradeep prior to the incident. As per him, on the next day of the murder in the year 2004 at about 10 am he had himself received a phone call at his phone no. 22479807, wherein the caller told that I am Babu Lal speaking and Ram @ Ramesh had demanded money from me for going to Agra. Money is ready with me. Here the child has met with an accident and I will be available in Saroj Hospital, Ward No.22, Bed No.53, Sector-24, Rohini, and caller told me to inform about the message to Ram @ Ramesh and accordingly he passed on the information to Ramesh @ Ram.
9. PW-6 is Ct. Raj Kumar, who on receipt of DD No. 16/A alongwith ASI Chanchal Sharma had gone to the spot on the fateful day, where the girl child aged 3 years met them and told that Tau had killed the boy (bhaiya). He also got the FIR registered.
10. PW-7 is Ct. Sat Prakash from crime team, who took 9 photograph of the scene of crime and dead body and proved the same vide Ex.PW7/1 to 9 and negatives thereof as PW7/10 to 18.
11. PW-8 is Public Witness Shail Singh, who saw the dead body at the spot on 09.01.04 but she could not tell as to how he died. As per her nobody from the crowd told him about the assailant. She went to her home and informed the PCR on 100 no.
Page 9 of 43 FIR No. 18/04, St. Vs. Babu Lal 10In her cross-examination by Ld. APP she admitted that her statement was recorded by the police. She also admitted that the persons present in the crowd told her that the boy was killed by his Tau.
12. PW-9 is Ct. Om Prakash, who remained associated with the investigation of this case with IO/Inspector Harish Chander Yati alongwith HC Anil, HC Sushil Kumar and Ct. Naresh on 11.02.04 and on the pointing out of the secret informer on that day accused was arrested. He stood witness to the personal search memo and arrest memo of accused Babu Lal vide Ex.PW9/A and A1 and his disclosure statement vide Ex.PW9/B, on which memos he identified his signatures at point A. As per him, in pursuance of his disclosure statement accused led the police party to the jhuggi of one Hari Chand and from a box kept in that Jhuggi, he got recovered a polythene containing his blood stained pant and shirt stated to have been worn by him at the time of commission of the offence, which were seized vide memo Ex.PW9/C with his signature at point A. Seal after use was handed over to HC Anil Kumar. He identified the shirt and the sky blue colour pant having blood stains mark as Ex.PW9/P1 and P2. He has been cross-examined at length.
13. PW-10 is the eye witness and it would be apt to reproduce her entire testimony including the questions put to her for the purpose of ascertaining if she could give logical reply to the Page 10 of 43 FIR No. 18/04, St. Vs. Babu Lal 11 questions put to her. The same is as under:
"To ascertain whether witness is able to understand the questions put to her whether she can give logical reply thereto, she is put to following questions:-
1Q. When did you come and how? Ans. I have come in the night by a gari (Vehicle) witness is unable to tell whether she has come by bus, truck, train, which options were put to her. 2Q. Who has accompanied you ? Ans. I have come with my mother only. 3Q. In which school do you study? Ans. I do not know.
4Q. What do you know about this case (mother of the witness states that she would not be able to understand if this case is referred however witness would understand only when reference to her brother Sonu is taken and it is stated as to who had murdered him. Accordingly the witness is put to this question as to what does she know about Sonu and what happened?
Ans. Sonu was my bhaiya (brother) and he was killed by my tau by silbatta at home. Objected to by ld. Defence Counsel A.A.Samani on the ground that this question cannot be put to witness as the questions are being put to her only to understand her capacity to reply to the questions. Objection overruled as this is the murder trial and counsel shall have Page 11 of 43 FIR No. 18/04, St. Vs. Babu Lal 12 ample opportunity to cross.
From the above I am of the opinion that witness can be examined in this case not withstanding her not replying to the particulars in regard to residential address and school. Court observation: witness appears to be 4/5 years in age as on date.
Examination of this witness without oath.
Name of my brother was Sonu.
5Q. What happened to Sonu?
Ans. Bhaiya khana bana raha tha. Tau ne silbatta se mar diya ghar main. 6Q. Who is your Tau?
Ans. Witness pointed out towards accused present in the court as tau by gesture. 7Q. Where were you living during those days?
Ans. Delhi.
8Q. Where your tau was living during those days?
Ans. He was living in our house.
Xxxxx by Sh. Samani, Defence Counsel.
1Q. How many brothers & sisters you have? Ans. Four including Sonu. I have one brother Monu and one sister Ranjana. 2Q. Where is Monu?
Ans. Monu has expired due to illness (daura par ke mar gaya tha) 3Q. Who died earlier Sonu or Monu? Ans. Sonu died earlier.Page 12 of 43 FIR No. 18/04, St. Vs. Babu Lal 13
4Q. What Monu was doing when Sonu died. Ans. Monu was also cooking food (roti bana raha tha) Maine kaha tha bhaiya bhookh lagi hai khana bana do.
5Q. Whether your mother did not cook meal on that day?
Ans. She had made but we had consumed the same earlier.
6Q. Who was elder Sonu or Monu? Ans. Sonu was elder.
7Q. Was your mother at home when Sonu died?
Ans. Nahi, papa bhi kam par gaye thai didi school gai thi.
8Q. Whether your sister was studying in school that time?
Ans. Yes.
9Q. Whether you know what is meant by Chacha?
Ans. I do not know. I have no chacha. I have one mama and one mausa.
10Q. Whether you know what is meant by Tau?
Ans. Nahi, pahle koi tau bulata tha to hum bhi seekh gai.
11Q. Can you tell how many persons you used to call as Tau?.
Ans. One (Ek ko).
12Q. Can you tell the name of the place/address where you used to live in Delhi.
Ans. Nahi. Gali no. bhi nahi bata sakti. 13Q. Can you tell the name of the neighbourers of Delhi residence? Ans. Nahi.Page 13 of 43 FIR No. 18/04, St. Vs. Babu Lal 14
14Q. Can you tell the names of children with whom you used to play in Delhi? Ans. Nahi.
15Q. What did you call husband of neighbourer Kamlesh in Delhi? Ans. Uncle ab chor diya (C/O before this answer mother of the witness present in the court stated that Kamlesh had left). She has been warned not to state anything further.
16Q. Whether you have come to the court prior to today?
Ans. Roj Ate the, kiten din aye nahi bata sakte, Har bar mummi ke sath aati thi. 17Q. Whenever you come in the court earlier with you mother, your mother always pointed out towards the accused to you as Tau?
Ans. Mummy har bar batati thi. 18Q. Your mother today also has pointed out towards accused your tau?
Ans. Aaj nahi bataya.
19Q. Whether you inquired to your mother today as to who is tau?
Ans. Nahi.
20Q. You are pointing out towards accused as Tau because on earlier occassion your mother had pointed out towards the accused as Tau?
Ans. Pehle se hi jante thi.
21Q. Whether you were told by your mother that here (in the court) you have to say that tau has killed Sonu with silbatta. Ans. Han. Then states pehle se hi pata tha jab mara tha.Page 14 of 43 FIR No. 18/04, St. Vs. Babu Lal 15
Q. Whom you told when Sonu sustained
injury?
Ans. Police ko bataya tha.
22Q. Do you have any identity card issued
from school?
Ans. Nahi.
23Q. Who first came just after the incident? Ans. Didi.
24Q. After how much time your mother came after arrival of Didi.
Ans. Didi hi mummy ko bula kar layi. 25Q. Whether you were told by your mother or father as to what you have to state to the police?
Ans. Nahi.
26Q. Whether Kamlesh was your neighbour in Delhi and name of her husband was Babu Lal?
Ans. Witness nodded in negative by gesture and earlier stated that Delhi khali kar aye hum.
27Q. Whether you remember the name of husband of your neighbour Kamlesh in Delhi as Babu Lal?
Ans. Nahi.
28Q. Whether you called Babulal husband of Kamlesh as Tau?
Ans. Nahi, inko (referring to accused) hi tau kahti thi. It is incorrect to suggest that we used to call Babu Lal husband of Kamlesh as Tau.
29Q. Whether husband of Kamlesh used to visit our house is Delhi?
Ans. Witness nodded in affirmative initially and then stated yahi tau (accused) aate Page 15 of 43 FIR No. 18/04, St. Vs. Babu Lal 16 jate thai.
30Q. Whether your mother had tutored you not to address any other person as Tau except accused when this particular question is asked in court.
Ans. Nahi.
31Q. Whether any other person or family members including father tortured you as to what you have to say in the court? Ans. Nahi.
32Q. Do you know where you are at the moment?
Ans. Nahi.
33Q. Do you know the purpose of your visit here and as to what you are doing presently?
Ans. Nahi.
34Q. Can you tell as to who are the persons present in the court (referring towards Ld. Addl PP and the presiding officer of the court)?
Ans. Nahi.
35Q. How many days later police visited the place of occurrence?
Ans. Pata nahi. Court Observation: witness has been explained by the court as to what is meant by a day and night and the question is repeated then she replies" Usi din aa gayi thi.
36Q. Can you tell what the day today? Ans. Nahi.
37Q. Whether friends or acquaintances of your father used to visit him in Delhi? Ans. Nahi.
38Q. Can you tell the time when your brother Page 16 of 43 FIR No. 18/04, St. Vs. Babu Lal 17 Sonu sustained injury?
Ans. Sabere ka time tha.
It is wrong to suggest that today I have deposed in the court as I was tutored by my mother and police officers or that I have been tutored by mother on each and every date fixed for hearing in this case and being unable to understand the nature of question, I was not examined earlier in the court and after being satisfied with tutoring me I have been produced before the court for examination. It is wrong to suggest that the accused is quite innocent. It is wrong to suggest that I did not see any incident of the present case or that I do not know anything about the incident of this case".
RO&AC ASJ/09.07.2007.
14. PW- 11 is SI Ajit Kumar from Crime Team who had gone with the team to the spot on 09.01.04 and inspected the place of occurrence but could not find any chance prints there. Const. Satya Prakash had taken the photographs.
15. PW 12 is HC Shushi, who endeavored to support the prosecution version and corroborated PW-9 mutatis mutandis. He has been cross-examined at length.
16. PW-13 is SI Jag Pal, who at the direction of SHO got the dead body postmortemed from LBS Hospital. After postmortem, Dr. Page 17 of 43 FIR No. 18/04, St. Vs. Babu Lal 18 on duty handed him over a sealed pullanda with the seal of hospital containing clothes of deceased and one sealed phoil containing blood sample of deceased and sample seal. He proved the Seizure Memo vide Ex. PW- 13/A. He also handed over the dead body after the postmortem to his legal heirs.
17. PW-14 is Const. Sonu Kaushik, who had prepared the scaled site plan vide Ex. PW- 14/K, at the instance of Insp. Harish Chander Yati.
18. PW-15 is Dr. Vinay Kumar Singh, who has conducted the autopsy on the dead body of Pradeep on 10.01.04 at 04.00 pm and proved his report as Ex. PW- 15/A. He has given the details of the external injuries on the person of the deceased which were ten in number confined to the head and the face. He opined that cause of death was due to cranio cerebral damage consequent upon blunt force impact to the head and all injuries were antemortem in nature and recent duration. As per MLC time since death was about 30-34 hours. He was also shown the sil-batta by the court and on seeing the same (collectively Ex. P-2) he stated that injuries could be caused by use of batta.
19. PW-16 is HC Kamruddin who was working as duty officer on 09.01.04 at PS Mandawali from 08.00 am to 04.00 pm and at about 11.00 am he received information from PCR vide DD No. 17 A Page 18 of 43 FIR No. 18/04, St. Vs. Babu Lal 19 to the effect that boy had been killed by tau at Chander Vihar. He gave the copy of DD nO. 17 A (Ex. PW- 16 A) to woman ASI Chanchal Sharma for inquiry. At about 12.45 pm he received Rukka from Inspector Harish Chand Yati through Const. Rajkumar on the basis of which he recorded FIR which he proved as Ex. PW- 16/B .
He also informed the Crime Team and the photographer.
20. PW-17 is HC Giri Raj Singh, who has proved the relevant entries of the deposit and taking out of exhibits in the Malkhana, vide Ex. PW- 17/A(collectively) in register No. 19.
21. PW-18 is Const. Kripal who had delivered the special report to Sr. Officers and area Magistrate on 09.01.04.
22. PW-19 is woman ASI Chanchal Sharma, who has endeavored to support the prosecution version mutatis mutandis and described the scene of crime and the proceedings conducted thereat.
23. PW-20 is Inspector Harish Chandra Yati, IO of the case, who has also endeavored to support the prosecution version and referred to the documents already exhibited by the other PWs. He has proved the endorsement on the Rukka as Ex. PW- 20/A and the inquest proceedings as Ex PW-20/B. He also got the rough site plan prepared by SI Jagpal Singh. He conducted the investigation with Page 19 of 43 FIR No. 18/04, St. Vs. Babu Lal 20 regard to the arrest of the accused at the instance of secret informer and recovery effected at his instance in pursuance of disclosure statement, from the jhuggi of Hari Chand. The recovery was of blood stained clothes of accused which he was wearing at the time of commission of the offence. He also sent the exhibits to CFSL Calcutta and he proved the CFSL report as Ex. PW- 20/E. He also identified the pair of chappal as Ex P-1 and sil batta as Ex.P-2 (colly) and shirt and pant of the accused as Ex PW-9/P1 and P-2 . As per him during investigation he learnt that accused Babu Lal used to reside with the family of deceased and children of Ram Shakar Dubey (father of deceased) used to call him tau. He has been cross examined at length.
24. After closure of prosecution evidence, all the incriminating evidence adduced on record was confronted with the accused to elicit his version, however, he pleaded innocence and did not opt to lead any evidence in his defence despite opportunity. He claimed that he was got lifted at the instance of secret informer, who was mixed up with Hari Chand and that he was falsely implicated in this case. When confronted with the investigation conducted on 11.02.04 with regard to his arrest, recording of his disclosure statement, recovery of his clothes, which he was wearing at the time of incident, from behind the box kept in the room of Hari Chand , he replied that he had gone to jhuggi of Hari Chand as latter called him on telephone for returning his three thousand rupees to him and Page 20 of 43 FIR No. 18/04, St. Vs. Babu Lal 21 from there he was arrested. Rest of the allegations, he denied.
25. I have heard the arguments from both the sides and gone through the record. Counsel Sh. A.A Samani and Sh. Nasim Ahmad for accused have also placed on record the written submissions. Ld. Defence Counsel has vehemently pleaded for acquittal of accused on the grounds interalia that PW-1 Ms. Ranjana (elder sister of deceased), PW-2 Rajni (mother of deceased) & PW-3 Ram Shankar Dubey @ Ramesh (father of deceased) are not the eye witnesses; that even PW-4 Kamlesh who informed PW-1 about the crowd at the house of the deceased and PW-8 Smt. Shail Singh, who informed the PCR, are not the eye witnesses; that PW-10 Dimple the younger sister of the deceased was only about 1½/2 years of age at the time of incidents; that there are various contradictions in the testimony of the prosecution witnesses which should be construed in favour of the accused; that prosecution has not examined the PCR official Pradeep Lakra on whose information DD No. 17 A was recorded to the effect that a child was killed by tau as such, such information by DD No. 17 A does not stand proved; that even Shail Singh made contradictory statement in her examination in chief and in her cross examination by ld. APP on the aspect of public persons present at the spot making the remark and telling her that boy was killed by his tau; that Shail Singh could not give the name of such persons from the crowd who referred about the tau as killer; that she did not state before the court that she had conveyed on 100 no, that boy Page 21 of 43 FIR No. 18/04, St. Vs. Babu Lal 22 was killed by the tau; that PW Kamlesh also did not support the prosecution on the aspect of Dimple crying and saying 'tau ne mara hai'; that referring to the time of arrival of PW-1, PW-2, PW-3, PW- 10 & PW-19 at the spot, ld defence has sought to impress upon the court that from their testimony it can be inferred that Dimple aged two years kept on crying and saying 'tau ne mara hai, from 9 am to 12 pm for about 15 hours continuously, which is quite impossible.
26. While referring to discrepancies in the testimonies of family members/ neighbourers of deceased inter-se and vis-a-vis prosecution version learned defence counsel has pointed out that PW-1 has not stated that accused was present at home when she left for school at 8.00 am; that PW-2 Rajni has categorically stated that her son Pradeep (deceased) and her young daughter Dimple aged 2 ½ yrs were present at home whereas her husband and her daughter had left the home and that accused came to their home one day prior to incident and stayed over night and he left the house in the morning; that this witness in her cross examination held two months after examination in chief made contradictory statement and claimed that her husband was at home when she left for the work and she further stated that no other person was present in her house when she left her family member (son, youngest daughter and husband) at home.
27. As regards the testimony of PW-3, as per learned defence Page 22 of 43 FIR No. 18/04, St. Vs. Babu Lal 23 counsel the same is in contradiction of statement of PW-2 as PW-2 never said that Babu Lal came back and was present in the house when she left for her work. On the point of accused leaving the house with PW-3, the claim of defence is that PW-3 is not consistent as he is changing stand and is therefore not believable. Learned defence counsel has sought to impeach the witnesses by taking resort to the different timings mentioned by them and Ld. Counsel is of the view that assessment of time of PW-1 is more credible since she goes to school in time and that she left the school at 8.00 am and received the information form Kamlesh after one hour i.e. 9.00 am and that PW-2 was informed at 9.30 am and this computation shows that the incident took place in between 8.00 am to 9.00 am; that PW -3 was present at the house till 9.00 am and as per PW-2, accused had left her house when she prepared tea and time was about 7.30 am because thereafter, she had prepared breakfast for all family members. Learned defence counsel has also referred to the new facts introduced by PW-3, who stated that one junk dealer Ram Lareti told him that his son has received injury on his head due to fall from the roof. Through this counsel wants to project that it alludes to the guilt mind of Ram Shankar Dubey @ Ramesh since this is not the prosecution version and no such kabadi was investigated by the prosecution.
28. As per defence, there was no eye witness from neighbourhood to the incident, which is strange since tenants were Page 23 of 43 FIR No. 18/04, St. Vs. Babu Lal 24 residing in the four rooms as stated by PW-2 but none of them had seen the accused going to house of deceased or coming out therefrom.
29. Too much emphasis has been laid by defence to bring home to this point that PW-2 is not at all believable since her age certificate has not been produced albeit she had been studying in school on the day of her deposition before the court; there is court observation that on the day of her testimony (09.07.07) she appeared to be 4/5 years of age meaning thereby on the day of incident i.e 09/01/04, she was one and half years old and therefore, she was not able to speak at all and she should not be believed. Another point brought to the notice of court is that as per testimony of Dimple, she had one more brother namely Monu besides deceased Sonu at the relevant time but strangely none of the PWs from family of deceased revealed this thing and Monu being more sensible and mature than Dimple, his statement could have been recorded but same was not done; that objection has been raised by the defence for not recording the statement of Dimple u/s. 161 Cr. PC or U/s. 164 Cr. PC.
30. Defence has also objected to not-citing of any witness by the prosecution, who could state that he has seen the witness wearing recovered chappal, recovered pant and shirt at the time, before or after the incident. It has further been argued that even the Page 24 of 43 FIR No. 18/04, St. Vs. Babu Lal 25 family members of the deceased were wearing the hawai chappals; that there are contradictions in the testimony of recovery witnesses i.e. PW-9 Const. Om Prakash, PW-12 HC Sushil and PW-20 IO on the aspect of presence of public witnesses, on the point of identification of jhuggi since PW-9 stated that jhuggi of Hari Chand made of taat whereas PW-12 HC Sushil stated that it was made of bricks and mud and roof was of black colour tirpal, which was also thus stated by PW-20; that PW-9 stated that at the time of recovery of clothes of accused, Hari Chand had left but wife and children were present but she was not made a recovery witness. On the other hand, PW-12 stated that Hari Chand was sitting outside his jhuggi whereas PW-20, IO stated that Hari Chand was not present at his jhuggi.
31. On the identity of shirt, learned defence counsel has referred to the versions of PW-9 and PW-12, who gave wrong description of recovered shirt since as per recovery memo shirt was of while colour with black check print but PW-12 stated that the white colour shirt had white colour check whereas PW-9 could not give the colour of the check. Defence has referred to the topography of the jhuggi also, to impeach the recovery witnesses. In view of the above discrepancies, defence has vehemently pleaded for the acquittal of accused.
32. On the other hand, ld. APP has vehemently pleaded for Page 25 of 43 FIR No. 18/04, St. Vs. Babu Lal 26 conviction of the accused on the ground that eye witness has supported the prosecution version and the witnesses of res gestae (PW-1, 2, 3, 8 & other police officials) have supported the prosecution case and there is no reason to discard their testimony and even the recovery at the instance of accused, of his wearing blood stained clothes is believable as it is common knowledge that public persons do not come forward to join the police investigations for various reasons and on that ground recovery cannot be rejected. As per him, the discrepancies in the testimonies of witnesses are minor in nature and do not uproot the prosecution case.
33. Having heard the arguments and after perusal of the case file let us see if the prosecution case inspires confidence. As per prosecution Dimple is an eye witness, however defence has sought to impeach her credibility by vehemently pleading that she is not believable in view of her tender age at the time of the incident since as per court observation on the date of her examination in the court i.e on 09.07.09 she was of 4-5 years only meaning thereby that on the date of the incident i.e on 09.01.04 she was 1 ½ -2 years in age and she was unable to speak anything. In order to appreciate the testimony of the witnesses the court is required to assess whether a witness is found reliable or not and in this regard court has to consider whether witness's statement is inherently improbable or contrary to the course of nature; whether his deposition contains mutually contradictory or inconsistent statements; whether he is Page 26 of 43 FIR No. 18/04, St. Vs. Babu Lal 27 found to be bitter enemy of the opposite party; whether his veracity appears doubtful; whether he is found to have been bribed or he has accepted any corrupt inducement to give evidence and court is also required to observe his demeanor in the court, if the same is abnormal and unsatisfactory.
34. It is not the proposition of law that a child witness cannot be competent witness. Admittedly, prosecution has not got the bone age test conducted of this eye witness nor obtained any birth document to show that she was of such an age as she could narrate the incident by uttering " Tau ne mara hai" but that by itself will not negate the prosecution version in view of the competency of the witness. Moreover, the case of the prosecution needs to be viewed in its entirety including the evidence of such child witness. It is noted that this child witness has during her examination before the court referred to the presence of her another brother Monu but that is a new story introduced by her. Now, question to be determined is, if such new story totally makes her unbelievable. To my mind answer is 'No', since the very basis of the DD No.17/A dt. 09.01.04 recorded at 11 am is that E-59 operator had informed that ASI Pradeep Lakra of PCR had informed that at Chander Vihar near Chandu Public School Tau has killed a boy (Tau ne ek ladke ko mar diya) and telephone no. has also been mentioned. This fact is not disputed by the accused that such a telephone call was made by PW- 8 Smt. Shail Singh since no such suggestion has been given that she Page 27 of 43 FIR No. 18/04, St. Vs. Babu Lal 28 did not make telephone call at 100 number. Although in her examination in chief, she has mentioned that she did not know as to how the boy died and that no one from the crowd told her about the assailant but in her cross-examination by Ld. Addl PP, she admitted that persons present in the crowd told that boy was killed by the Tau. Her this version is believable for the reasons that in the PCR call the wordings are mentioned that " boy was killed by Tau". In catena of judicial pronouncement it has been held that cross- examination of witness by the party who calls him, would not efface his testimony altogether and it is open to the court to consider the evidence and there is no bar in making use of the evidence of such a witness in support of the prosecution or in support of the accused (relied AIR 1976 SC 202 Bhagwan Singh; 1991 Cr.LJ 2653, SC titled Khujji @ Surender Tiwari).
35. Under these circumstances, it can be presumed that DD entry was recorded by official person i.e DD writer in the course of his official duties and a presumption U/s. 114 of the Indian Evidence Act can be drawn accordingly and non-examination of the PCR official ASI Pradeep Lakra is of no consequence. Ld. Defence Counsel has relied on the hostility of PW-4 Kamlesh, who has not supported the prosecution version since it was she, who had gone to the house of the deceased and saw crowd gathered there and then she went to the school of the sister of deceased and informed her. She has denied that Dimple stated anything to her that Boy was Page 28 of 43 FIR No. 18/04, St. Vs. Babu Lal 29 killed by Tau. This is not the proposition of law that the entire case of the prosecution is washed away on account of hostility of a single witness. In her cross-examination she has stated that deceased had two sisters. She also stated that Sonu's sister (must be referring to Dimple since other sister is school going one) used to take milk as well as food at that time. This goes to show that Dimple was not that infant in age as could not speak. Even a child of 1 ½ years is able to recognise his parents or relations, who frequent him and off and on interact with him and the child call such a relation by relationship only i.e Mama, Papa, Nana, Tau etc. PW-2 Rajni has categorically stated that three children were born out of her wedlock with PW-3 i.e two daughters and one son, who has expired. She was examined on 07.07.05 and 14.09.05, whereas Dimple was examined on 09.07.07. The introduction of Monu as one of the brother of Dimple is entirely a new fact regarding which no cross- examination has been done even from the IO and same is not believable. As such, question of citing such a witness by the prosecution does not arise. The DD entry would not be recorded in PS to the effect that Tau has killed the boy unless there were such remarks at the spot, which has been admitted by PW-8 Shail Singh, so the version of the child witness Dimple inspires confidence, which is corroborated by the testimony of her parents, who have brought on record that accused was on visiting terms with their family and they have stood confirmed on their this version by the testimony of their neighbourer PW-4 Kamlesh as she has stated in her Page 29 of 43 FIR No. 18/04, St. Vs. Babu Lal 30 examination in-chief that she know the accused, who was present in the court on the date of her testimony as he was residing in the house of Anju. She has referred PW-1 Ranjana as Anju while relating her to sister of deceased, to whom she went in the school to inform her. No suggestion in rebuttal has been put to this witness that accused was not residing in the house of the deceased. Under these circumstances, it was quite natural for the child witness Dimple to have interacted with the accused and call him Tau. She has categorically stated in her testimony before the court that accused present in the court was the Tau. She was sought to be confused by projecting that Tau was husband of Kamlesh, who was also having the same name as accused herein i.e Babu Lal but Dimple remained firm in response to Q.No. 28 by denying him (husband of Kamlesh) as one to whom she called as Tau. As regards, the objection that none from the neighbourhood of deceased saw accused going in and leaving the house of deceased around the occurrence, PW-2 has revealed that at the time of incident none of the neighbourers were present since all the neighbourers used to leave for work at about 7 am and when she left her room for work, all the residents had left for their work and only the children of Kamlesh in the age group of 6,7 & 8 were present in the room of Kamlesh, which was opposite to her room.
36. As regards the objection of the defence that the child kept on crying for 15 hours " Tau Ne Mara Hai" in view of the testimony of Page 30 of 43 FIR No. 18/04, St. Vs. Babu Lal 31 PW-3 Ram Shankar Dubey @ Ramesh, who stated that he received the information from his colleague at about 11.30 pm whereas as per prosecution version the incident took place in the morning, in my considered view time 11.30 pm has been inadvertently mentioned due to typographical error and time was 11.30 am since there is statement Ex.PW3/A dt. 09.01.04, which mentions that when he returned to the home, he found the dead body outside his room whom he identified as of his son Pradeep @ Sonu and then there is Postmortem report, which mentions that dead body was received in the mortuary on 09.01.04 at 12.30 pm and by this computation it is clear that 11.30 pm is a typographical error and it cannot be believed that the girl child kept on crying for 15 hours nonstop. Ld. Defence counsel has pointed out towards the discrepancies in the testimony of parents of deceased namely Rajni PW-2 and Ram Shankar Dubey @ Ramesh PW-3 to show that when Rajni mother of deceased left at about 7.45 am, she left behind in her room PW-3, Dimple and Pradeep @ Sonu, so it was PW-3, who might have committed the murder and not the accused since she had herself stated that she had served accused tea in the morning on the day of incident and then he had left the house and she went away to her job. This statement was given in the court on 11.05.05 whereas her husband PW-3 Ram Shankar Dubey @ Ramesh stated that his wife left for job in the morning at about 7.45 am and accused also left. Ld. Defence counsel has read the testimony, which is favourable to him but has not read the entire testimony of Page 31 of 43 FIR No. 18/04, St. Vs. Babu Lal 32 PW-3, which mentions that his wife left the job in the morning at about 7.45 am then accused also left the house and then came back after 10 minutes meaning thereby PW-2 Rajni was not aware of return of accused to the home at her back after 10 minutes, so she has given the statement accordingly. There is no discrepancy in the testimony of PW-2 & 3 on the aspect of taking tea since PW-2 Rajni has not stated that Babu Lal had also taken tea. She has simply mentioned that she prepared tea but PW-3 Ram Shankar Dubey @ Ramesh had stated that initially Babu Lal did not take tea on the ground that he was not well but subsequently he after 5 minutes told him that he would go back and take tea and accordingly he came back to the house.
37. The objection of the defence that even the family members of the deceased were using the chappal of the same nature which were found at the spot and as such from recovery of such chappal accused cannot be fastened with the liability of causing the murder, does not carry any weight for the reason that defence did not incur the risk of trying the chappal/slippers in the court when same were produced since had it fitted the accused, it could have been construed against the accused. No specific suggestion in rebuttal has been given to PW-2 & PW-3 that recovered slippers were not of accused Babu Lal.
38. Defence has pointed out towards the discrepancies in the Page 32 of 43 FIR No. 18/04, St. Vs. Babu Lal 33 testimony of the recovery witnesses viz. PW-9 Ct. Om Prakash, PW- 12 HC Sushil and PW-20 IO, who stood witness to the recovery of the clothes worn by the accused at the time of incident, from the jhuggi of Hari Chand. It is noted that accused in his statement U/s. 313 Cr.P.C when he was confronted with Q no.19 admitted that he was arrested from the jhuggi of Hari Chand. Prosecution version is that he was arrested from near the jhuggi of Hari Chand and recovery was effected at the instance of accused Babu Lal from behind the trunk kept in the jhuggi of Hari Chand. This lends corroboration to the prosecution version that jhuggi of Hari Chand is concerned with the facts of this case and police had reached there. Recovery was effected from his jhuggi on 11.02.04 whereas PW-9 Const. Om Prakash, PW-12 HC Sushil and PW-20 Inspector Harish Chandra Yati/IO were examined on 13.04.07, 11.07.07, 15.11.07 and 06.02.09 respectively. While conducting the investigation minutes details such as presence of particular public person for a particular duration or otherwise or on the geographical position of the place of recovery, are not documented by way of mentioning the same in the proceedings. As such, discrepancies on such aspects are very natural in the testimony of the witnesses who remained associated with the investigation. Moreover, different persons have different capacity of observation, retention and recapitulation, which may be due to age factor or the fineness of the memory of individual and it is also to be noted the memory fades away with the passage of time and such discrepancies should not be allowed to Page 33 of 43 FIR No. 18/04, St. Vs. Babu Lal 34 thwart the main aspect of the investigation (which in this case is recovery of shirt and pant/clothes of accused, which he was wearing at the time of incident).
39. The discrepancies in the testimonies of witnesses inter-se are minor in nature and do not go to the root of the prosecution case, as such the same need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions (relied AIR 1981 SC 1167 titled Jagdish Vs. State of M.P); Hon'ble Supreme Court in Leela Ram Vs. State of Haryana (1999) 8JT 274 (SC) inter-alia observed that there is bound to be some discrepancies between the narrations of different witnesses when they speak on details and when the contradictions are of a material dimensions, the same should not be used to jettison the evidence in its entirety. It also observed that the court shall have to bear in mind that different witnesses react differently under different situations. Whereas, some become speechless, some start wailing, while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individual to individual. There cannot be any set pattern or uniform rule of human reaction, and to discard a piece of evidence on the ground of one's reaction not falling within a set pattern is unproductive and a pedantic exercise.
Page 34 of 43 FIR No. 18/04, St. Vs. Babu Lal 3540. Similarly minor contradictions in the testimony of the witnesses in the court vis-a-vis 161 Cr.P.C. statements were held to be insignificant in authorities reported in:-
" 1 (2007) DLT (CRL) 17 DB Delhi High Court titled Mohd. Mahaboob @ Munna Vs. State of Delhi which is on the appreciation of victim being seen lastly in the company of the accused. It was observed by Hon'ble Delhi High Court that it is for the accused to explain as to what happened to deceased thereafter."
" 2001 CRLJ 504 SC titled State of Govt. of NCT of Delhi Vs. Sunil & Anr. Wherein absence of independent witnesses in the proceedings of recovery was held as not a ground to discard the seizure evidence."
" 2003 (II) AD (CR.) S.C. 341 titled Karamjeet Singh Vs. Delhi Administration on recovery effected by police personnel in the absence of any public witness under the TADA Act which was believed despite absence of any public witness."
" AIR 1999 SC 3717 titled Leela Ram Vs. State of Haryana wherein it was observed that any irregularity or illegality during investigation should not be treated as a ground to reject the prosecution case. It was also observed that discrepancies in the evidence of eye witnesses cannot affect credibility of evidence of witnesses as corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
41. In view of the above discussion recovery in pursuance of Page 35 of 43 FIR No. 18/04, St. Vs. Babu Lal 36 disclosure statement of accused, is believable. The recovered clothes were sent to FSL and report Ex.PW-20/E is also against the accused for the reason that the blood group of victim which fell on the batta or on his shirt, ganji, baniyan, sweator and pant showed the blood group as 'O' and the blood group 'O' was also found on the shirt and pant recovered at the instance of the accused. It is not the defence of the accused that these clothes were got blood smeared with the blood of the deceased and then planted on the accused as recovered clothes, so the recovery is believable. In this context let us advert to the disclosure statement of accused recorded on 11.02.04. Admittedly, the inculpatory statement made in such disclosure statement Ex.PW9/B is not admissible and only the recovery made pursuant to such disclosure statement is admissible but the portion of the statement, wherein no inculpatory statement is there, can be considered to view the case projected by the prosecution. He has given his past history as to in what manner he came to know the family of deceased. He has mentioned that he got acquainted with Ram Shankar Dubey @ Ramesh in 1992 through his brother in-law Krishan Kumar Upadhyay and they came closure being from the same caste & profession i.e Brahmin and labour work. He has interalia mentioned that he gained proximity with Rajni wife of Ram Shankar Dubey @ Ramesh when he started living there since he was unmarried and that he used to spent on Rajni @ Rani and his children. He also stated that he was being called Tau by three children of Ramesh @ Ram Shankar Dubey @ Ramesh Page 36 of 43 FIR No. 18/04, St. Vs. Babu Lal 37 namely Pradeep @ Sonu, Ranjana and Dimple; that four days back he had collected the outstanding dues which he had given as loan to several persons which amount was about Rs.8,000/-, which he had kept in the pocket of his pant and kept the pant and shirt on khunti but on next day he found the cash amount missing and he doubted that Pradeep had stolen the same since earlier also he had stolen Rs. 2,00/- and gambled with the same; that Pradeep used to behave with him rudely and used to ask him to leave as a result he became inimical with Pradeep fearing that he might not come to know his intimacy with Ranji @ Rani; that two days prior to the incident i.e 07.01.04, he (accused) had taken his entire belonging from the house of Ram Shankar Dubey @ Ramesh but came back there on 08.01.04 and slept overnight without having meals; that next day Rajni @ Rani went for her job and he alongwith Ramesh came out but he told Ramesh that he wanted to have tea and on getting nod from him to have tea at home, he came when Pradeep asked him as to why he had come, which infuriated him and he asked Pradeep as to he had stolen Rs. 8,000/-, which should be returned to him but Pradeep denied having any such money and he misbehaved. Rest of the statement is regarding his inculpatory act and the manner in which it was done. From the spot, he went to Palam Colony, Pappan Kalan and on next day (10.01.04) he made a telephone call to one Satish R/o. Mandawali telling him that I am Babu Lal speaking and Ram @ Ramesh had demanded money from me for going to Agra. Money is ready with me. Here the child has Page 37 of 43 FIR No. 18/04, St. Vs. Babu Lal 38 met with an accident and I will be available in Saroj Hospital, Ward No.22, Bed No.53, Sector-24, Rohini. He gave the reason for making such telephone call since he wanted that Ramesh and his wife should come to meet him and they can be misled. Thereafter, his statement is with regard to keeping of the blood stained clothes in the jhuggi of Hari Chand. He also stated the purpose of his visit to the house of Hari Chand on 11.02.04 (date of his arrest and disclosure statement), which was to get back his loan amount, which he had lent to Hari Chand. In this context if we view the disclosure statement of accused which are not inculpatory, to consider the facts, the same find corroboration from the testimony of the other prosecution witnesses since PW-4 Kamlesh has corroborated the prosecution version that accused was living in the house of the deceased. PW-2 & 3 parents of deceased have also stated that accused was on visiting terms with Krishan Kumar Upadhyay and when he had left for his village about 2-3 months prior to the incident then accused started visiting his house. Accused has nowhere taken this defence that he was not acquainted with or was not living with deceased deceased or his family members, who were examined here as prosecution witnesses. In these circumstances, the plea of the accused that it was husband of Kamlesh namely Babu Lal, who was being called Tau cannot be believed and it is held that it was the accused Babu Lal, who was being addressed as Tau by children of Ram Shankar Dubey @ Ramesh who was categorically identified by all the witnesses Page 38 of 43 FIR No. 18/04, St. Vs. Babu Lal 39 including the neighbourer Kamlesh, in the court. Accused has not shown any alibi. Admissible averments made in the disclosure statement of the accused indicates that accused had been frequenting the house of deceased and behaviour of deceased was bad towards him. The claim of the accused that he had gone to the house of Hari Chand for getting the outstanding amount, which he had lent to Hari Chand goes to show that accused might have been giving the amount on loan to different persons as he had otherwise no liability and in this context availability of about Rs. 8,000/- with him as mentioned in his disclosure statement assumes importance to support the motive of the act committed. Defence has tried to baffle/confuse Rajni @ Rani by trying to elicit that she was having illicit relationship with neighbourer Deshraj but she has categorically denied having any such relationship. No such defence plea has been brought on record by putting appropriate suggestions to the prosecution witnesses to show that some other persons had the motive to commit the offence. The manner in which the child was given beatings with batta also alludes to the furiated/reactionary conduct of the offender and suggest that the killing was done at the spur of the moment in rage. During arguments, on being verbally asked by the court if accused had any relationship with area Rohini at the relevant time, in view of the statement of PW-5 Satish Chand Upadhyay, he replied that he was during those days working at Sector-24, Rohini with Saraswati Builder and he had made a telephone call to Satish Chand Upadhyay Page 39 of 43 FIR No. 18/04, St. Vs. Babu Lal 40 since his daughter was unwell at village. It can be presumed that Satish Chand Upadhyay had conveyed the telephonic message to Ramesh and that is how the name of PW-5 was given by Ramesh to the investigating agency and PW-5 Satish Chand Upadhyay was examined by them otherwise the statement of PW-5 if read in isolation is of no consequence but if it is read in the context of admissible portion of disclosure statement of accused, it makes a sense that the things had happened in the manner as investigated by the prosecution.
42. In view of the aforesaid discussion no other inference except the one can be drawn that it was the accused, who had committed murder of Pradeep @ Sonu as head injury was sufficient enough to cause death in ordinary course of nature as per Ex.PW15/A and once the blow with batta was caused on the vital portion i.e head of the victim, the availability of knowledge with the accused if it would result in death is immaterial in view of the wording of section 300 IPC (thirdly) as per which, except for the cases as provided in section 300 IPC culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Accused intend to inflict injury on vital portion of victim by batta blow and this act was subject, its consequences are objective Page 40 of 43 FIR No. 18/04, St. Vs. Babu Lal 41 one that is the intended injury sustained is sufficient in the ordinary course of nature to cause death. In this case the version of the eye witness, who is a child witness namely Dimple is corroborated by the other circumstances of the case as discussed above. As such, accused is held guilty U/s.302 IPC.
Announced in open Court (REENA SINGH NAG)
on: 04.04.09 Addl. Sessions Judge-2(East),
KKD, Delhi.
Page 41 of 43 FIR No. 18/04, St. Vs. Babu Lal
42
IN THE COURT OF MS. REENA SINGH NAG: ADDL.
DISTRICT & SESSIONS JUDGE-2 (EAST): KKD: DELHI SC No. 250/04 FIR No. 18/04 PS Mandawali U/s. 302 IPC State Vs. Babu Lal ORDER ON SENTENCE
1. I have heard Ld. APP, Ld. Counsel Sh. A.A.Samani and convict on the quantum of sentence.
2. Convict is aged 63 years and is married. He is having one daughter aged 10-12 years in his family, who is presently being looked after by his younger brother Pramod since wife of convict has expired 2-3 months prior to the incident. He is 5th pass. He was working as a Mistri and used to supply labours to builders thereby earning Rs. 200 per day, before being sent to JC. There is no previous conviction against him.
3. In view of the authority reported in 2008 III AD (Cr.) 50 titled Prajeet Kumar Singh Vs. State of Bihar, wherein reference was made to judgments of Hon'ble Apex Courts in Bachan Singh Vs. State of Punjab (1980) 2 SCC 684( a Constitution Bench decision) and in Page 42 of 43 FIR No. 18/04, St. Vs. Babu Lal 43 Machhi Singh and Ors. Vs. State of Punjab (1983) 3 SCC 470 (a three Judges Bench decision), in my considered view this case does not fall in the category of rarest of rare cases and as such, I sentence the convict as under.
U/s. 302 IPC convict is sentenced to undergo life imprisonment and sentenced to pay a fine of Rs.1,000/-.
In default of payment of fine he will further undergo SI for 1 month.
1. Benefit of section 428 Cr.P.C shall be given to the convict as per law. Copy of this judgment and this order be given to the convict free of cost. The file be consigned to record room.
Announced in open Court (REENA SINGH NAG)
Dt: 08.04.09 ASJ-2(EAST) KKD,
Delhi.
Page 43 of 43 FIR No. 18/04, St. Vs. Babu Lal