Delhi District Court
State vs . Jai Prakash on 19 July, 2016
FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI SC/ 57760/16 State Vs. Jai Prakash S/o Sh. Sehdev Paswan R/o Village Ghat Amarpur, PO Kurka Ghat, PS Pathar Gya District Gutha, Jharkhand. FIR No. : 32/12 Police Station : Bawana Under Sections : 302 IPC Date of committal to Sessions Court : 26.04.2012 Date on which judgment was reserved: 19.07.2016 Date on which Judgment pronounced : 19.07.2016 JUDGMENT
BRIEF FACTS OF THE CASE
1. The case of prosecution as mentioned in the chargesheet is as under:
(i).That on 27.01.2012 at about 4.40 pm, DD No. 29A (Ex.PW3/A) with regard to admission of one person namely Sita Ram S/o Santu aged 65 years in injured condition by Jiya Lal (PW4) in M.V. Hospital, was recorded in PS Bawana and same was entrusted to SI Ramesh Chand (PW18) for necessary action;
(ii). Accordingly, SI Ramesh Chand alongwith Ct. Yogender (PW17) reached M.V. Hospital, where they obtained MLC State V/s. Jai Prakash ("Acquitted.") Page 1 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 No. 314/12 (Ex.PW14/A) of injured Sita Ram from concerned doctor. SI Ramesh Chand recorded statement (Ex.PW4/A) of injured Sita Ram, wherein he claimed that he had been staying for the last 15 days with his son Jiya Lal (PW4) at factory premises no. F205, Sector1, DSIDC concerning his medical treatment. On 27.01.2012, when he was sitting in front of factory no. F205, one person who was working as Foreman in nearby factory no. F145, Sector1, DSIDC came and assaulted him with brick on his chest and head. He was got admitted in the hospital by his son Jiya Lal who also disclosed the name of offender as Jai Prakash S/o Sehdev Paswan i.e. accused herein, to him;
(iii). On the basis of said statement, FIR was got registered for the offence punishable U/s 308 IPC through Ct. Yogender and investigation was entrusted to SI Ramesh Chand. During investigation, IO SI Ramesh Chand prepared rough site plan, arrested the accused and lifted the relevant exhibits including blood stained earth, earth control and piece of brick used as weapon of offence;
(iv). It is further the case of prosecution that during treatment at RML Hospital, injured Site Ram died, due to which section 302 IPC was substituted in place of Section 308 IPC. After getting the autopsy conducted on the dead body of deceased Sita Ram, his dead body was handed over to his son Jiya Lal. Relevant exhibits were deposited in Malkhana and investigation was carried out by Inspector Satish Kumar, State V/s. Jai Prakash ("Acquitted.") Page 2 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 who was posted as SHO in PS Bawana during the said period;
(v). It is further the case of prosecution that during investigation, IO Inspector Satish Kumar obtained subsequent opinion from Autopsy Surgeon with regard to weapon of offence i.e. pieces of brick. Thereafter, the relevant exhibits were got deposited in FSL, Rohini on 11.02.2012 and scaled site plan was got prepared through Draftsman on 07.03.2012. Relevant documents were also seized during investigation. IO also recorded statements U/s 161 Cr.P.C. of the relevant witnesses. After completion of investigation, chargesheet was filed before the Court.
(vi). It may be noted here that further investigation was carried out during which IO Inspector Satish Kumar collected scaled site plan, photographs of the scene of crime and FSL result. He also recorded statements of the relevant witnesses in that regard, whereafter he filed supplementary chargesheet before the Court.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED
3. After hearing arguments on the point of charge, Court framed the charge for the offence punishable U/s 302 against accused Jai Prakash, vide order dated 17.05.2012, to which he pleaded not guilty and State V/s. Jai Prakash ("Acquitted.") Page 3 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 claimed trial.
4. In support of its case, prosecution examined 27 witnesses namely PW1 Sh. Bechan Ram, PW2 Ct. Roshan Lal, PW3 ASI Bhagwan Devi, PW4 Sh. Jiya Lal, PW5 HC Deep Chand, PW6 Ct. Kamal, PW7 Sh. Jai Kumar, PW8 Sh. Raju, PW9 Dr. Manoranjan, PW10 SI Mahesh Kumar, PW11 HC Azad Singh, PW12 Ct. Jaiveer, PW13 Sh. Shiv Shankar, PW14 Dr. Yudhvir Singh, PW15 Ct. Devender, PW16 Ct. Mukesh, PW17 Yogender, PW18 SI Ramesh Chand, PW19 HC Dharampal, PW20 Dr. Vijay Dhankar, PW21 Ct. Ugrasen Sabharwal, PW22 Ct. Shri Krishan, PW23 SI (Retd.) Prem Singh, PW24 Ct. Nishan Singh, PW25 Ms. Anita Chhari, PW26 Inspector Satish Kumar and PW27 Ct. Baljeet, during trial.
5. Thereafter, statement U/s 313 Cr.P.C. of accused Jai Prakash was recorded, during which all the incriminating evidence were put to him. However, he denied the same and claimed that he is innocent and has been falsely implicated in this case. His defence is of general denial. He claimed that he was working in the factory of PW7 Jai Kumar and on one day, police officials came to the factory and forcibly took him to PS, where he was forced to sign certain blank papers and he was falsely arrested in the present case. The accused opted to lead evidence towards his defence. He also examined one witness namely DW1 Sh. Sakaldev Rai in his defence and closed his evidence on 02.02.2016.
6. I have heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and Ld. Counsel Sh. S.K. Jha, Adv. on behalf of accused. I have also gone through the material available on record.
State V/s. Jai Prakash ("Acquitted.") Page 4 of 36FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016
7. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES
8. PW1 Sh. Bechan Ram: He had identified the dead body of deceased being his soninlaw, vide his statement Ex.PW1/A. This witness has not been cross examined by accused despite grant of opportunity.
9. PW4 Sh. Jiya Lal : He is the son of deceased Sita Ram. He deposed on 27.01.2012 at about 4/4.30 pm, he was working in the basement of factory premises no. F205, Sector1 DSIDC Bawana. The accused who was working in factory premises no. 145, came towards their factory and started abusing his father and also gave leg blows to his father and asked his father as to why he was sitting on the chair despite belonging to Harijan Community. After hearing the noise, he reached there. His father had fallen down on the ground, whereafter accused gave 2/3 leg blows on the chest of his father and also hit brick on the head of his father. When he tried to intervene, the accused ran away. He removed his father to M.V. Hospital in the car of factory owner and got him admitted there. From the said hospital, his father was referred to RML Hospital, where he came to know that rib of his father had been fractured and injuries were also found present in his head as per CT Scan. Police had recorded statement Ex.PW4/A of his father in his presence in the hospital.
He further deposed that on 28.01.2012, the accused was State V/s. Jai Prakash ("Acquitted.") Page 5 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 arrested by the police in his presence, vide memo Ex.PW4/B. The accused had made disclosure statement Ex.PW4/D and had also pointed out the place of incident, vide pointing out memo Ex.PW4/E. He further deposed that two half bricks lying at the spot, were pointed out by him to the police, which were used by accused Jai Prakash in causing injuries on the head of his father. Said bricks were seized, vide memo Ex.PW4/F. Police officials had also lifted earth control and blood stained earth control; kept the same in plastic containers and seized them vide memos Ex.PW4/G and Ex.PW4/H. He had also identified dead body of his father in the Mortuary of BSA Hospital, vide his statement Ex.PW4/K. He identified the said half bricks as Ex.P1 and Ex.P2 during trial.
In his cross examination, he testified that premises no. F205 was three storied building and the factory was being run in the basement thereof. There was a practicing doctor on one of the floors and one chowkidar namely Anil was residing on top floor thereof. Said chowkidar used to take care of the said factory during night hours as during day time, he was working in nearby factory. The owner of the factory was constructing his house at some distance from the said factory.
He further deposed that his father was suffering from general ailment such as cold, cough, etc. and was taking treatment from M.V. Hospital. Three or four employees were working in the said factory at that time. He claimed to have told the police that his father was taking sunlight while sitting on a chair, but said fact was not found mentioned in his statement U/s 161 Cr.P.C. (Ex.PW4/DX). When he reached the spot, people had gathered there. None from the said crowd tried to save his father. He did not raise alarm as accused had run away after beating his State V/s. Jai Prakash ("Acquitted.") Page 6 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 father inside the factory. He had lifted his father while removing him inside the car of owner of the factory and his shirt got blood stained from one side shoulder. He did not hand over said shirt to the police as they did not ask for the same. He did not show said blood stained shirt to the police. His coemployees had accompanied him alongwith injured father to the hospital. His father was kept in the hospital for about 1520 days in M.V. Hospital, whereafter he was referred to RML Hospital. He could not disclose the time when statement Ex.PW4/A of his father was recorded by the police. He further deposed that accused was known to him prior to the incident and he did not have any enmity with the accused. He denied the suggestion that his father was not in a position to make statement or that police never recorded statement of his father or that his father had sustained injury due to falling of construction wall as construction work was going on or that after compromising the matter with the owner of the factory, he left the job and got the accused falsely implicated in this case.
10. PW7 Sh. Jai Kumar : He was running factory in rented premises no. F145, Sector1, DSIDC, Bawana, Delhi. He deposed that accused Jai Prakash was working as Foreman in the said factory and accused worked in said factory upto 27.01.2012. He had handed over copy of rent agreement Mark 7/A and attendance register Ex.PW7/B to the police official, who seized the same vide memo Ex.PW7/A. In his cross examination, he testified that accused had worked upto 5 pm on 27.01.2012. Police had visited his factory premises at about 4 pm on 27.01.2012. He had produced the accused in PS Bawana after 5 pm. Accused was working in his factory at the time of visit of State V/s. Jai Prakash ("Acquitted.") Page 7 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 police in his factory on that day. Police officials had informed him that since accused had picked up a quarrel, his presence was required in the PS. He also deposed that premises no. F205 was situated on the other end across the road and in front of his factory at a distance of 20 mtrs. The road in front of his factory was a busy road.
11. PW8 Sh. Raju : According to the case of prosecution, he was an eye witness of the incident in question. However, he has not supported the case of prosecution and turned hostile during trial. He deposed that in the month of January, 2012 at about 4 / 4.30 pm when he was sleeping in factory no. F205, he heard the cries in front of the gate, on which he went outside and saw that father of Jiya Lal was lying in unconscious condition near the road. He was bleeding from his head. Jiya Lal immediately followed him and came outside the gate, whereafter Jiya Lal removed his father to M.V. Hospital in a vehicle. He also deposed that since father of Jiya Lal was in unconscious condition, doctor of M.V. Hospital referred him to some other hospital. Accordingly, Jiya Lal took his father to some other hospital, where his father expired on the same night. He categorically testified that he had no knowledge as to what had happened with father of Jiya Lal and he did not see as to who had caused injuries to him.
The aforesaid witness was subjected to cross examination on behalf of State through Ld. Additional PP as he was not supporting the prosecution story on material points. All the relevant suggestions were put to him on the lines of prosecution story, but same were denied by him. He categorically denied to have made statement MarkX on 28.01.2012 to the police or having told the police that accused Jai Prakash had come to State V/s. Jai Prakash ("Acquitted.") Page 8 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 the spot on 27.01.2012 at about 4.30 pm and abused deceased in his presence or gave any beatings to Sita Ram with fists or that after hearing the cries of Sita Ram, he alongwith Jiya Lal went there. He also denied the suggestion that accused had taken two brick pieces and gave blows on head and chest of Sita Ram and fled away from the spot.
In his cross examination on behalf of accused, he deposed that Sita Ram remained in M.V. Hospital for about half an hour and throughout the said period, he remained unconscious. Police did not record statement of any person in the hospital at that time.
12. PW13 Sh. Shiv Shankar : He was running factory in rented premises no. F205, Sector1, DSIDC, Bawana, Delhi. He deposed that Jiya Lal was working in the said factory in the year 2012 on contract basis and no attendance register was maintained regarding presence of workers. He had handed over copy of rent agreement Mark PW7/A to the IO, who seized the same vide memo Ex.PW7/A. He further deposed that during the intervening night of 27/28.01.2012, Sita Ram was referred from Pooth Hospital to RML Hospital, where he expired during treatment. He made PCR call at 100 number in this regard. He came to know that accused had given beatings to Sita Ram.
In his cross examination, he claimed to have told the police that Sita Ram was beaten up by accused while he was sitting on a chair outside the house, but said fact was not found mentioned in his previous statement U/s 161 Cr.P.C. Ex.PW13/DA. He deposed that Sita Ram was unconscious at the time when he had reached at Pooth Hospital. He had also visited RML Hospital, where Sita Ram was crying with pain and was State V/s. Jai Prakash ("Acquitted.") Page 9 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 not able to speak. Accused was arrested on the same day from the factory at about 5.30 pm in his presence. The police did not record statement of any witness in his presence.
POLICE WITNESSES
13. PW2 Ct. Roshan Lal: This witness deposed that on 27.01.2012 at about 5.19 pm, an information was received from mobile phone no. 9212646097 belonging to one Shiv Shankar Vasvani regarding a quarrel at F205, Sector1, Bawana, Delhi. He filled up PCR form and transmitted the same for necessary action. He proved attested copy of PCR Form as Ex.PW2/A. He has not been cross examined by accused despite grant of opportunity.
14. PW3 ASI Bhagwan Devi: She is the Duty Officer. She deposed that on 27.01.2012 at about 4.40 pm, she was informed by Wireless Operator about receipt of information of admission of one Sita Ram S/o Santu in injured condition in M.B. Hospital against MLC No. 314/12, who was admitted by one Jiya Lal. She recorded the said information vide DD No. 29A. She proved attested copy of said DD as Ex.PW3/A. She has not been cross examined by accused despite grant of opportunity.
15. PW5 HC Deep Chand: He is the Duty Officer who proved factum regarding recording of FIR No. 27/12 in PS Bawana. He proved computerized copy of said FIR as Ex.PW5/A and his endorsement as Ex.PW5/B made on the rukka. He deposed that he had handed over copy of FIR and rukka to Ct. Yogender to be handed over to SI Ramesh Chand.
He further deposed that in the intervening night of State V/s. Jai Prakash ("Acquitted.") Page 10 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 27/28.01.2012 at about 2.15 am, he received an information from Control Room regarding death of injured who was referred to Ram Manohar Lohia Hospital from M.B. Hospital. He recorded the said information vide DD No. 5A. Nothing material came on record during cross examination of this witness.
16. PW6 Ct. Kamal: This witness being photographer posted in Mobile Crime Team had accompanied crime team members, to the place of occurrence on 28.01.2012. He deposed that at the instructions of IO and Incharge Mobile Crime Team, he had taken six photographs of the place of occurrence from different angles. He exhibited negatives thereof as Ex.PW6/A1 to Ex.PW6/A6 and photographs as Ex.PW6/B1 to Ex.PW6/B6. He also deposed that some blood spots were also found there.
In his cross examination, he deposed that one or two public persons were present at the spot from whom IO did not enquire anything in his presence. The distance between Nirankari Clinic and the spot where the blood was found, may be 810 paces. No doctor was present in the clinic nor the clinic was open. He further deposed that 23 police officials of PS Bawana were present there. The marking around the blood spot is always done by the Crime Team. He denied the relevant suggestions put to him on behalf of accused.
17. PW10 SI Mahesh Kumar: This witness being draftsman, visited the place of occurrence alongwith Inspector Satish Kumar and SI Ramesh Chander on 07.03.2012, whereafter at the instance of SI Ramesh Chander, he took notes and measurements of the spot. On the basis of said rough notes and measurements, he had prepared scaled site plan State V/s. Jai Prakash ("Acquitted.") Page 11 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 Ex.PW10/A. He further deposed that he had destroyed the rough notes and measurements after preparing the scaled site plan.
In his cross examination, he deposed that the distance between the spot and PS is about 4/5 kms. No police official was present at the spot prior to their arrival. There was no landmark near the spot as it was an industrial area. His statement was recorded on 07.03.2012 at the spot itself. He denied the relevant suggestions put to him on behalf of accused.
18. PW11 HC Azad Singh: This witness had joined investigation of this case with SI Ramesh Chand, Jiya Lal, (son of deceased) and one Bachan Ram on 28.01.2012 when the relevant exhibits i.e. blood stained earth, earth control and two brick pieces are stated to have been lifted/seized in the case. He deposed that scene of crime was got inspected and photographed through crime team officials. Thereafter, he alongwith IO and other staff apprehended accused on the basis of secret information and at the instance of Jiya Lal and relevant proceedings were carried out.
In his cross examination, he could not disclose the registration number of the vehicle used for visiting Shamshan Ghat from PS and for visiting the spot on that day. He could not disclose as to whether IO had recorded statement of Jiya Lal after arrest of accused in this case. He also could not disclose the time of leaving the spot after completing the investigation on that day. IO did not ask any person available in the gas godown situated near the place of apprehension of accused, to join the investigation. He denied the suggestion that accused was produced in PS by his employer on 27.01.2012 at about 5 pm. State V/s. Jai Prakash ("Acquitted.") Page 12 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016
19. PW12 Ct. Jaiveer: This witness had accompanied SI Ramesh Chand to RML Hospital on 28.01.2012. He deposed that he had shifted dead body of deceased Sita Ram from RML Hospital to BSA Hospital, where postmortem on the dead body was got conducted, after the dead body was identified by the relatives. Thereafter, he had visited the spot, where crime team officials had visited. SI Ramesh Chand had seized the relevant exhibits from the spot and seized them after preparing their separate pullandas sealed with the seal of RC. Thereafter, he remained at the spot, whereas SI Ramesh and HC Azad had gone for arresting the accused. After sometime, they returned back to the spot alongwith accused.
In his cross examination, he deposed that some public persons were present at the spot, but IO did not record statement of any public person. Jiya Lal who was son of deceased Sita Ram remained present at the spot throughout and did not go to any place during his stay at the spot.
20. PW15 Ct. Devender: This witness was posted as Computer Operator in CIPA of PS Bawana. He deposed that at about 11 pm, Duty Officer had given a tehrir to him and he fed the contents of the said FIR in computer and recorded the FIR No. 32/12, U/s 308 IPC. Thereafter, he handed over the copy of FIR and original tehrir to the Duty Officer.
21. PW16 Ct. Mukesh: On 17.02.2012, he had deposited sealed pullandas in intact condition in FSL, Rohini after collecting the same from MHC(M), vide R.C. No. 22/21/12. He also took the acknowledgment of receipt of pullanda from FSL and deposited the same with MHC(M) after returning to the PS. In his cross examination, he State V/s. Jai Prakash ("Acquitted.") Page 13 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 denied the relevant suggestions put to him on behalf of accused.
22. PW17 Ct. Yogender: This witness alongwith SI Ramesh Chand had gone to M.B. Hospital on 27.01.2012 at about 10 pm and had collected the MLC of injured Sita Ram. He deposed that IO had recorded the statement of Sita Ram and on the basis of said statement, he made an endorsement on the same and handed over the same to him for getting the FIR registered at the PS. He took tehrir to the police station from the hospital, handed over the same to Duty Officer and got the FIR registered through Computer Operator. After registration of FIR, he had handed over the copy of FIR and original tehrir to IO SI Ramesh Chand at the hospital. He has not been cross examined by the accused despite grant of opportunity.
23. PW19 HC Dharam Pal: This witness was working as MHC(M) in PS Bawana during the relevant period. He deposed that on 28.01.2012, SI Ramesh Chand had deposited four pullandas sealed with the seal of RC and personal search articles recovered from accused Jai Prakash, in malkhana, vide entry at serial no. 120 of Register no. 19. He proved copy of said entry as Ex.PW19/A. He further deposed that on 30.01.2012, SI Ramesh had deposited two sealed pullandas alongwith one sample seal of Department of FM DR BSA DELHI GOVT. in malkhana, vide entry in register no.19. He proved copy of said entry as Ex.PW19/B. He further deposed that on 10.02.2012, one pullanda sealed with the seal of RC (allegedly containing pieces of bricks) were sent to BSA Hospital for opinion purpose, vide RC no. 14/21/12 through Ct. Baljeet and he had made relevant entry at pointA against entry State V/s. Jai Prakash ("Acquitted.") Page 14 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 Ex.PW19/A. The same was received back from BSA Hospital through HC Wazir on 11.02.2012 and he made relevant entry at pointB against entry Ex.PW19/A. He further deposed that on 17.02.2012, all the six sealed pullandas including two sample seals were sent to FSL, Rohini on 17.02.2012 through Ct. Mukesh vide RC No. 22/21/12. He made relevant entry at pointC on Ex.PW19/A. The pullandas alongwith result were received from FSL on 11.07.2012 through Ct. Ugrasen. The result was handed over to IO and he made relevant entry at pointD on Ex.PW19/A. He exhibited copy of said RC as Ex.PW19/C, copy of acknowledgment receipt issued by FSL as Ex.PW19/D and copy of RC no. 14/21/12 as Ex.PW19/E. Nothing material came on record during cross examination of this witness.
24. PW21 Ct. Ugrasen: This witness deposed that on 05.06.2012, he had gone to FSL, Rohini and received six sealed pullandas sealed with the seal of FSL and result in another envelope sealed with the seal of FSL and thereafter, deposited the same with MHC(M). Nothing material came on record during cross examination of this witness.
25. PW22 Ct. Shri Krishan: This witness was posted as Duty Constable in M.V. Hospital, Pooth Khurd, Delhi. He deposed that on 27.01.2012 at about 4.40 pm, one injured namely Sita Ram was admitted in M.V. Hospital in injured condition vide MLC No. 314/12 by his son Jiya Lal. He had given the said information to Duty Officer of PS Bawana vide DD No. 29A. He proved copy of said DD as Ex.PW3/A. In his cross examination, he deposed that injured was in conscious condition and he was speaking. However, the statement of State V/s. Jai Prakash ("Acquitted.") Page 15 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 injured was not recorded by IO in his presence. He was not aware that injured was declared unfit for the statement by the concerned doctor on that day.
26. PW23 SI (Retd.) Prem Singh: He being Incharge of Mobile Crime Team (OD), had visited the spot on 28.01.12 alongwith other Crime Team officials. He deposed that after carrying out inspection at the spot, he had prepared his report Ex. PW23/A. He also deposed that blood stains and one brick were lying at the spot. One blood stained plastic polythene was also lying there.
In his cross examination, he deposed that apart from IO and other police officials, one or two relatives of injured Sita Ram were also present at the spot but IO did not record statement of any witness in his presence. He could not tell if there were shops and offices situated near the spot. He also could not tell if there was any specific mark printed on the plastic polythene. He also could not disclose if the brick lying at the spot was full or half.
27. PW24 Ct. Nishan Singh: This witness had joined investigation with IO Inspector Satish Kumar on 10.04.12 when IO had seized Attendance Register Ex. PW7/B of employees of Factory No. F 145, DSIDC, Bawana from factory owner namely Sh. Jai Kumar. Copy of Rent Agreement mark PW7/A1, was also seized by IO vide memo Ex. PW7/A in his presence.
In his cross examination, he deposed that he himself did not see the entries of said register. The statement of Sh. Jai Kumar was recorded by IO in the factory itself in his presence. Several workers were present in the factory at that time but IO did not make any enquiry from State V/s. Jai Prakash ("Acquitted.") Page 16 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 them in his presence. He did not notice if there was Clinic of any doctor being run on the upper floor of the said factory premises. IO did not collect any document concerning employment of Sh. Jiya Lal in the factory of Shiv Shanker, which was situated at a distance of about 2530 meters from the factory of Sh. Jai Kumar.
28. PW26 Inspector Satish Kumar : He remained IO of this case from 28.01.12 till filing of charge sheet before the Court. He has deposed about the relevant investigation carried out by him during said period. He deposed that on 30.01.12, he had recorded supplementary statement of Jiya Lal and had seized the relevant exhibits produced by SI Ramesh Chand before him, vide memo Ex. PW18/D. On 10.02.12, he had prepared application Ex PW26/A for providing subsequent opinion with regard to weapon of offence and got the same collected through HC Wazir. He also got the relevant exhibits deposited in FSL on 17.02.12 through Ct. Mukesh and also got the scaled site plan prepared through Draftsman SI Mahesh Kumar during investigation. He had also seized attendance register and copy of Rent Agreement from factory owner Sh Jai Kumar on 10.04.12. He had also seized copy of Rent Agreement from Shiv Kumar who was owner of factory no. F205, DSIDC, Bawana. He had also issued Certificate U/s 65B of Indian Evidence Act Ex. PW26/B regarding registration of FIR.
In his cross examination, he admitted that the doctor of M.V Hospital had declared patient Sita Ram as unfit for statement, whereafter no Certificate was issued by doctor for declaring Sita Ram as fit for making statement. He admitted that as per attendance register Ex. PW7/A, accused had marked his attendance on 27.01.12. The place of occurrence State V/s. Jai Prakash ("Acquitted.") Page 17 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 was situated at a distance of 1015 meters away from factory no. F205 which was three storied building.
29. PW27 Ct. Baljeet: He is a formal witness who had collected relevant pullanda containing brick pieces from Malkhana on 10.02.12 vide RC no. 14/21/12 and deposited the same with Autopsy Surgeon for providing subsequent opinion. In his cross examination, he deposed to have handed over said pullanda to concerned doctor at about 11.00 am and testified that relevant departure and arrival entries were made in that regard in PS. MEDICAL WITNESSES:
30. PW9 Dr. Manoranjan: This doctor was deputed by Medical Superintendent RML Hospital to appear and depose on behalf of Dr. Shamshad Ahmed, Jr. Resident and Dr. Raj Kumar who had worked with him in Neuro Surgery Department, RML Hospital as he had seen them writing and signing during the course of their duty. He deposed that as per death report of patient Sita Ram bearing CR No. 3873, he was declared dead on 28.01.2012. He proved said report as Ex.PW9/A bearing the signature of Dr. Shamshad at pointA. He also proved the death summary prepared by Dr. Raj Kumar as Ex.PW9/B bearing the signature of said doctor at pointB. He has not been cross examined by the accused despite grant of opportunity.
31. PW14 Dr. Yudhvir Singh: This doctor was deputed to appear and depose on behalf of Dr. Prakash Jha as concerned doctor had already left the services of M.V. Hospital and his whereabouts were not available in the hospital and he being acquainted with the handwriting and State V/s. Jai Prakash ("Acquitted.") Page 18 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 signature of Dr. Prakash Jha.
He deposed that as per MLC of patient Sita Ram, he was brought to the hospital on 27.01.2012 at about 4.41 pm by his son Jiya Lal with the alleged history of physical assault. As per said MLC, on local examination of said patient, he was found having fresh bleeding near left temporal occipital area and multiple abrasion near temporal occipital area. No other external injury was found present over the body of patient Sita Ram. He proved MLC of said patient as Ex.PW14/A, bearing the signature of Dr. Prakash Jha at pointA. The said patient was unfit for statement when he was brought to the hospital.
In his cross examination, he deposed that in case the patient regains consciousness, opinion regarding fitness for giving statement is given by the concerned doctor on duty to record his statement if demanded by the IO. No such opinion is given by the doctor on duty in the present case. He admitted that as per MLC Ex.PW14/A, the patient remained unfit for statement in M.V. Hospital. He further deposed that possibility of such type of injury, being caused due to fall of patient cannot be ruled out.
32. PW20 Dr. Vijay Dhankar: This doctor was deputed by Medical Superintendent to appear and depose on behalf of Dr. J.V. Kiran Kumar Jha as concerned doctor had already left the services of BSA Hospital and his whereabouts were not available in the hospital. He exhibited the postmortem report no. 46/12 dated 28.01.2012 of Sita Ram prepared by Dr. J.V. Kiran as Ex.PW20/A bearing the signatures of said doctor at pointsA. In his cross examination, he deposed that the external injuries State V/s. Jai Prakash ("Acquitted.") Page 19 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 mentioned in the postmortem report Ex.PW20/A are unlikely to have been caused if a wall falls on to the person. He denied the relevant suggestions put to him on behalf of accused.
On 04.09.2015, this witness was recalled U/s 311 Cr.P.C. pursuant to order dated 04.03.2015. He deposed that report dated 11.02.2012 was prepared by Dr. J.V. Kiran. He exhibited the said report as Ex.PW20/B, bearing his signature at pointA. He further deposed that as per the opinion Ex.PW20/A, Dr. J.V. Kiran received a parcel sealed with the seal of RC containing two brick pieces i.e. one big and other small. Dr. J.V. Kiran had mentioned the measurements of both the brick pieces and their description in his report Ex.PW20/B. He further deposed that after examination, Dr. J.V. Kiran had opined that the injuries mentioned in the postmortem report of deceased Sita Ram, were possible by the said brick pieces.
In his cross examination, he admitted that Dr. J.V. Kiran had not examined the said brick pieces in his presence. He denied the relevant suggestions put to him on behalf of accused.
FORMAL WITNESS:
33. PW25 Ms. Anita Chhari: She being Senior Scientific Officer (Biology) in FSL Rohini, had examined relevant exhibits of the present case in Laboratory. She deposed that on examination of said exhibits, blood was detected on all the exhibits except exhibit 2 i.e. brick pieces. She proved her reports in that regard as Ex. PW25/A and Ex. PW25/B. State V/s. Jai Prakash ("Acquitted.") Page 20 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 PUBLIC WITNESS:
34. DW1 Sh. Sakaldev Rai: He deposed that in the year 2012, he was working in factory no. L11, Sector3, DSIDC, Bawana. On 27 th day of one month of the year 2012, he received telephone call on his mobile number from Jai Kumar who was factory owner of accused Jai Parkash. Jai Kumar had asked him to reach at his factory. Accordingly, he reached at the factory of Jai Kumar and found Jai Kumar as well as police officials present over there. Accused was also present in the said factory at that time. The police officials had told them for taking accused Jai Parkash to PS. Accordingly, he alongwith Jai Kumar had taken accused Jai Parkash to PS. In his cross examination, he deposed that accused was working in the factory of Jai Kumar for the last one year prior to the date of occurrence. He denied the suggestions that they had not taken the accused to PS or that accused Jai Parkash was apprehended from the bus stop at the instance of PW Jiya Lal on the basis of secret information.
ARGUMENTS ADVANCED AND CASE LAW CITED
35. After referring to the testimonies of prosecution witnesses examined during trial and the documents brought on record, Ld. Additional PP vehemently argued that the prosecution has been successful in establishing the guilt of accused for the offence of committing murder of Sita Ram beyond pales of reasonable doubt. For the said purpose, he heavily relied upon ocular evidence more particularly the testimony of PW4 Sh. Jiya Lal and medical evidence available on record. He, therefore, urged that accused should be convicted in this case.
State V/s. Jai Prakash ("Acquitted.") Page 21 of 36FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016
36. On the other hand, Ld. Defence counsel argued that the entire burden to prove its case was upon the prosecution. He argued that the prosecution has failed to bring home the guilt of accused beyond shadow of doubt. He further argued that PW4 Sh. Jiya Lal is an interested witness being son of deceased and his presence at the spot is doubtful. He further argued that PW8 Raju who, as per the case of prosecution, was an eye witness of the occurrence, has not supported the case of prosecution during trial. He, therefore, urged that since reasonable doubt has been created on the case of prosecution, the accused is entitled to be acquitted by giving him benefit of doubt.
37. Before dealing with the rival contentions made on behalf of both the sides and appreciating the evidentiary value of the testimonies of prosecution witnesses examined during trial, it would be appropriate to summarize the evidence relied upon by the prosecution to establish the charge for the offence of murder against the accused. Same can be noted as under:
(i) Statement (Ex. PW4/A) of deceased Sita Ram recorded by PW18 SI Ramesh Chand in M.V Hospital before his death by terming it as dying declaration of deceased;
(ii) Eye Witness Account in the form of testimony of PW4 Jiya Lal (son of deceased);
(iii) That the death of Sita Ram was homicidal in nature in view of Autopsy Report dated 28.01.2012 ( Ex. PW20/A);
(iv) Recovery of weapon of offence i.e. two brick pieces (one big and one small) Ex. P1 & P2;
(v) Subsequent opinion dated 11.02.2012 ( Ex.
PW20/B) of Autopsy Surgeon, whereby it has been opined that injuries mentioned in PM State V/s. Jai Prakash ("Acquitted.") Page 22 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 Report were possible by brick pieces (Ex. P1 & P2) recovered in this case; and
(vi) The subsequent conduct of accused that he absconded after committing murder of Sita Ram and was apprehended on 28.01.2012.
Now, I shall deal with the aforesaid points one by one. DYING DECLARATION OF DECEASED
38. Ld. Additional PP heavily relied upon statement Ex. PW4/A made by deceased Sita Ram during his life time before PW18 SI Ramesh Chand in M.V Hospital, wherein he has claimed that one person who was working as Foremen in factory No. F145, Sector1, DSIDC, Bawana, had inflicted blow on his chest and head with brick and whose name was told to him by his son Jiya Lal as Jai Parkash. Ld. Additional PP argued that since Sita Ram succumbed to the injuries soon after making said statement before SI Ramesh Chand, said statement should be treated as dying declaration of deceased. He further argued that deceased has clearly named the accused herein to be the offender who had inflicted brick blows on his head and chest. Thus, it is an important piece of evidence produced by prosecution during trial.
39. On the other hand, Ld. Defence counsel assailed the veracity and genuineness of the aforesaid statement ( Ex. PW4/A) by contending that no such statement was made by deceased and said statement has been prepared by IO subsequently in connivance with PW4 Jiya Lal who is son of deceased. For the said purpose, he referred to the relevant material available on record. He therefore, urged that said statement should not be termed as dying declaration of deceased should not be relied upon by the Court.
State V/s. Jai Prakash ("Acquitted.") Page 23 of 36FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016
40. As already noted above, criminal law was set into motion on receipt of intimation in PS Bawana on 27.01.2012 at 4.40 pm vide DD no. 29A regarding admission of injured Sita Ram by Jiya Lal (PW4) in M.V Hospital. The said call was entrusted to PW18 SI Ramesh Chand who alongwith PW17 Ct. Yogender had rushed to M.V Hospital for attending the said call. PW18 has claimed during chief examination that deceased had made the aforesaid statement before him in the presence of Jiya Lal (PW4), whereafter he made his endorsement Ex. PW18/A and got the FIR in question registered through Ct. Yogender. However, PW 18 has admitted in his cross examination that he did not meet concerned doctor to know the condition of injured Sita Ram in M.V Hospital and also did not seek opinion of said doctor on MLC of injured as to whether injured was fit to make statement or not. The perusal of MLC (Ex. PW14/A) of injured Sita Ram prepared in M.V. Hospital, would show that he was declared 'unfit for statement' at portion A to A appearing thereupon. The injured is not found to have been declared fit for making statement on said MLC at any point of time. This fact has also been admitted by PW18 during his cross examination held on 10.08.2015. Not only this, PW18 also admitted that he did not make any enquiry from concerned doctor who had declared injured Sita Ram as unfit for statement, to disclose the time when he had declared the said injured as unfit. PW18 claimed during cross examination that he remained in M.V Hospital upto 4.30 pm on 27.09.2012 despite the fact that information was received in PS Bawana at 4.40 pm on that day and the contents of MLC recite that injured Sita Ram had been brought to M.V Hospital on 27.01.2012 at 4.41 pm by his son Jiya Lal.
State V/s. Jai Prakash ("Acquitted.") Page 24 of 36FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016
41. Moreover, PW14 Dr. Yudhvir Singh of M.V Hospital has testified during chief examination that as per MLC Ex. PW14/A of injured Sita Ram, he was declared unfit for statement when he was brought to the hospital. PW14 clarified during his cross examination that whenever patient regains consciousness, opinion regarding fitness for making statement is given by doctor on duty if demanded by IO but no such opinion was given in the present case. PW14 admitted during cross examination that as per MLC Ex. PW14/A, patient Sita Ram remained unfit for statement in M.V Hospital, Delhi.
42. Furthermore, the testimony of PW13 Shiv Shanker who is an independent public witness examined by prosecution itself during trial, is also relevant on the aforesaid aspect. PW13 testified during his cross examination that when he reached M.V Hospital, Sita Ram was unconscious. Not only this, he also went to the extent of saying that even when Sita Ram was shifted to RML Hospital and he went there and met Sita Ram, he was crying with pain and was not able to speak. PW4 has deposed during cross examination that his father Sita Ram remained in M.V Hospital for about 1520 minutes, whereafter he was referred to RML Hospital and was accordingly removed to RML Hospital in the car of owner of his factory i.e. factory no. F205, Sector1, DSIDC, Bawana. This shows that PW13 Shiv Shanker who is shown to be the owner of factory no. F205, Sector1, DSIDC, Bawana, had visited M.V Hospital and subsequently to RML Hospital. As already stated above, PW13 has clearly testified that Sita Ram was unconscious in M.V Hospital.
43. Under the aforesaid facts and circumstances, the question arise as to whether it would be safe to treat the statement Ex. PW4/A as State V/s. Jai Prakash ("Acquitted.") Page 25 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 dying declaration of deceased Sita Ram and to rely upon the same by the Court. The answer, in the opinion of the Court, has to be in negative. The reasons are quite obvious. Before proceeding to record the statement of any injured person, it is the duty of police official to get the patient declared as fit for statement from the attending doctor on duty. Same is not shown to have been done in the present case. Two different versions have come on record with regard to the fact as to whether Sita Ram was in conscious state of mind while he remained in M.V Hospital or not. On the one hand, PW4 Jiya Lal and PW18 SI Ramesh Chand claimed that Sita Ram was in conscious state and was fit to make the statement but on the other hand, PW14 Dr. Yudhvir of M.V Hospital deposed that patient Sita Ram remained unfit for statement till the time he remained in M.V Hospital, as per his MLC Ex. PW14/A. Likewise, PW13 Shiv Shanker who had visited M.V Hospital, also deposed that Sita Ram was unconscious in M.V Hospital. PW22 Ct. Sri Krishan who was on duty as Duty Constable in M.V Hospital at the time of admission of Sita Ram in the hospital, also testified that no statement of Sita Ram was recorded by police official in M.V Hospital in his presence. That being so, Court agrees with the submission made on behalf of accused that factum of making statement Ex. PW4/A by Sita Ram before PW18 SI Ramesh Chand in the presence of PW4 Jiya Lal, cannot be said to be free from doubt. Thus, it would not be safe to rely upon the said statement or to use the same against the accused.
EYE WITNESS ACCOUNT IN THE FORM OF TESTIMONY OF PW4 JIYA LAL (SON OF DECEASED):
44. The prosecution has, most importantly, relied upon the State V/s. Jai Prakash ("Acquitted.") Page 26 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 testimony of PW4 Jiya Lal by portraying him as an eye witness of the incident in question. Ld. Additional PP after referring to the testimony of said witness, argued that the charge against accused stands duly proved on the basis of ocular evidence given by said witness. He contended that PW4 has identified accused to be the assailant who had given kick blows on the chest of deceased as also the blow of brick on the head of deceased which resulted into his death. He therefore, urged that accused is liable to be convicted.
45. On the other hand, Ld. Defence counsel vehemently argued that PW4 is in an interested witness being son of deceased and he was not present at the time of incident in question. He further argued that deceased had sustained injuries due to falling down of wall under construction and after entering into compromise with the owner of the building under construction, PW4 Jiya Lal got the accused falsely implicated by becoming an eye witness to the incident. He also referred to the testimony of PW8 Raju, in support of his contention that PW4 Jiya Lal was nowhere in picture at the time of incident, as per the testimony of PW8.
46. As already discussed above, the prosecution had cited two public witnesses namely Jiya Lal and Raju examined as PW4 and PW8 respectively, to be the eye witnesses of the incident in question. Out of said two witnesses, PW8 Raju has completely turned hostile during trial and did not support the prosecution story. Rather, he contradicted the prosecution story by claiming that after hearing the noise in front of the gate of factory no. F205, on the date of incident, he went outside and saw father of Jiya Lal lying near the road in unconscious condition and Jiya State V/s. Jai Prakash ("Acquitted.") Page 27 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 Lal had followed him by coming outside the gate of the factory premises. In view of the testimony of PW8 Raju that Jiya Lal had reached to the spot subsequent to him, the presence of PW4 at the spot at the time of occurrence becomes doubtful.
47. It cannot be overlooked that PW4 is noneelse but the son of deceased. Considering the fact that PW4 is closely related to the deceased, it becomes the duty of Court to scrutinize his testimony minutely and to adopt cautious approach. Hon'ble Apex Court has held in catena of judgments that the testimony of sole witness must inspire confidence and should be beyond suspicion leaving no doubt in the mind of the Court. Whenever there is a sole witness, his evidence has to be accepted with a mean of caution and after testing it on the touchstone of other material available on record. No doubt, the testimony of sole eye witness can be relied upon but it should be reliable beyond any doubt and has to be corroborated by other evidence produced by the prosecution.
48. In the matter titled as "Kuria @ Anr. Vs. State of Rajasthan" reported at (2012) 10 SCC 433, Hon'ble Apex Court held that: "25. The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased.
Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and State V/s. Jai Prakash ("Acquitted.") Page 28 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 see if the statement of the witness is corroborated. Reference in this regard can be made to the case of Sunil Kumar (supra), Brathi alias Sukhdev Singh V. State of Punjab: (1991) 1 SCC 519 and Alagupandi @ Alagupandian V. State of Tamil Nadu : 2012 (5) SCALE 595".
49. In the light of aforesaid principles, the Court has examine the testimony of PW4 Jiya Lal who remains to be the sole eye witness of the occurrence in the light of material available on record and the discussion made herein above.
50. PW4 Jiya Lal claimed during chief examination that he was working in the basement of factory no. F205, DSIDC Bawana at the time of incident in question. He claimed that his father who had come for taking treatment to Delhi just few days ago, was sitting on chair outside the factory premises and across the road for getting sun light after taking his lunch. After hearing the noise, he had reached there. Still, he testified that accused had abused his father and gave leg blow to his father by saying as to why he was sitting on a chair being belonging to Harijan Community. In case, the said witness had arrived at the place of occurrence only after hearing the noise, it is not clear as to how he came to know that accused had given leg blow to his father and had passed the aforesaid comment to his father as belonging to Harijan Community. This fact assumes importance when PW4 claimed during his cross examination that his father was sitting across the service road in front of the factory wherein he (PW4) was working and he had rushed to the said place only after hearing the noise of the abuses of the accused. It is also pertinent to note that PW4 Jiya Lal had been working in the basement of factory no.
State V/s. Jai Prakash ("Acquitted.") Page 29 of 36FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 F205, while accused was working as foreman in factory no. 145. PW18 SI Ramesh Chand has deposed that there was a distance of about 150 meters in both the said factories which were not situated in the same gali. IO i.e. PW26 Inspector Satish Kumar has deposed that there was a distance of 10 to 15 meters between the place of occurrence and factory no. F205 in the basement of which PW4 Jiya Lal was working at the time of incident. In this backdrop, one cannot believe that PW4 had seen accused having visited the spot or abusing his father or passing aforesaid comment to his father.
51. Be that as it may, PW4 claimed that accused had given 23 leg blows on chest of his father and also hit brick on the head of his father and ran away from there. He claimed to have removed his father to M.V Hospital in the car of owner of the factory and during the process of removing his father to the hospital, his shirt got blood stained. However, he neither showed his said blood stained shirt to the police nor handed over the same to the police during investigation. No explanation whatsoever has been furnished by him on the said aspect. PW4 Jiya Lal claimed that his father was conscious and was in a position to speak even while he was admitted in hospital but said part of his testimony stood contradicted by two other public witnesses examined from the side of prosecution itself. PW8 Raju deposed during his chief examination itself that father of Jiya Lal was in unconscious condition when he was taken to M.V Hospital. He also clarified during his cross examination made on behalf of accused that father of Jiya Lal remained unconscious during the entire span of 30 minutes while he remained admitted in M.V Hospital. Same is the position with PW13 Shiv Shanker who also deposed that State V/s. Jai Prakash ("Acquitted.") Page 30 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 father of PW4 Jiya Lal was lying unconscious in M.V Hospital. PW4 Jiya Lal claimed that statement (Ex. PW4/A) of his father i.e. Sita Ram (since deceased) had been recorded by police in M.V Hospital in his presence. Again, said part of his statement stood contradicted by PW8 Raju who testified during his cross examination that police did not record statement of any person in M.V Hospital. The rukka (Ex. PW18/A) is also silent regarding factum of Jiya Lal (PW4) being an eye witness of the incident in question. There is another aspect involved in the matter. PW 4 claimed during his cross examination that people had gathered at the spot when he reached there but none of those public witnesses from the crowd, tried to save his father. Same also shows that the incident had already taken place prior to the reaching of said witness to the spot. PW4 admitted that he did not raise any alarm, which is again considered to be quite unnatural on his part. It does not stand to logic that a son whose father is being assaulted by the offender, would sit as a mute spectator and would neither raise alarm in order to save his father nor would confront with the offender in order to save his father from his clutches. PW4 has come out with a lame excuse that when he tried to intervene, accused had run away. Had it been the situation where accused would have been assaulting father of PW4 in his presence, the first and natural reaction of PW4 would have been to immediately intervene and to fight with the accused in order to save his father unmindful of the consequences thereof. There is nothing of that sort found to have taken place in the facts and circumstances appearing on record. Even the blood stained shirt of PW4 was not offered or handed over by him to the police. It has come on record in the cross examination of PW4 that head of his father was in his State V/s. Jai Prakash ("Acquitted.") Page 31 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 lap while removing him in the car to the hospital. The deceased is claimed to have sustained injury on his head and PW4 claimed that his father was bleeding from his head due to brick blow given by accused but still, there is nothing on record to show that wearing pant of PW4 got blood stained in any manner. Same again creates reasonable doubt regarding the presence of PW4 at the time of incident.
DEATH OF SITA RAM WAS HOMICIDAL IN NAUTRE:
52. Ld. Additional PP submitted that death of Sita Ram was homicidal in nature. For the said purpose, he heavily relied upon Autopsy Report dated 28.01.2012 ( Ex. PW20/A) and the testimony of PW20 Dr. Vijay Dhankar.
53. The perusal of Autopsy Report available on record clearly shows that death of Sita Ram is opined to be due to cranio cerebral damage consequent to blunt force trauma to the head and all the injuries were antemortem and were caused by blunt object. Not only this, the head injury is opined to be sufficient to cause his death in the ordinary course of nature. Deceased Sita Ram is shown to have sustained as many as five injuries including stitched lacerated wound of the size of 3 cm x 0.5 cm x bone deep on left temporal region of scalp and stitched laceration on the upper part of the Pinna of left ear. PW20 Dr. Vijay Dhankar of Department of Forensic Medicine, has categorically testified during cross examination that those external injuries mentioned in Autopsy Report are not likely to be caused due to falling down of a wall upon the person. Thus, there is no iota of doubt that death of Sita Ram State V/s. Jai Prakash ("Acquitted.") Page 32 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 was homicidal in nature.
RECOVERY OF WEAPON OF OFFENCE:
54. Although, the prosecution has been able to prove recovery of two brick pieces i.e. Ex. P1 and P2 from near the place of occurrence. As per subsequent opinion dated 11.02.2012 (Ex. PW20/B), the injuries sustained by deceased Sita Ram were possible by said brick pieces. However, there is no clinching evidence available on record to show that injuries sustained by deceased were actually caused by said two brick pieces ( Ex P1 & P2). There is no forensic evidence to connect the said brick pieces with the incident in question inasmuch as there is no blood stain whatsoever found appearing on any of those brick pieces. Same can be noted from FSL result dated 05.06.12 ( Ex. PW25/A), wherein it has been opined that no blood could be detected on Ex.P2 i.e. brick pieces which were sent for examination to FSL, Rohini during examination.
SUBSEQUENT CONDUCT OF ABSCONDANCE OF ACCUSED:
55. As per the case of prosecution, the incident took place on 27.01.2012 at about 4.30 pm or so, whereafter accused fled away from there and he was arrested on the next day i.e. 28.01.2012 at about 6.50 pm from main dividing road of Sector 1 and Sector 3, Bawana in the presence of PW4 Jiya Lal. PW4 Jiya Lal and Arresting Officer i.e. PW18 SI Ramesh Chand have deposed on identical lines in that regard. It is claimed by the said two witnesses that accused was arrested on the basis of secret information received by PW18. However, truth came to surface State V/s. Jai Prakash ("Acquitted.") Page 33 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 in the testimony of PW7 Jai Kumar who is owner of factory no. F145, Sector1, DSIDC, Bawana, wherein accused was employed as on the date of incident in question. PW7 Jai Kumar categorically testified in his cross examination that accused had worked in his factory upto 5.00 pm on 27.01.2012. Not only this, he also stated during trial that police official had visited his factory on 27.01.2012 at about 4.00 pm, whereafter he had produced the accused in PS Bawana after 5.00 pm. He also deposed that accused was working in his factory at the time of visit of police official on 27.01.2012. PW7 is noneelse but the witness of prosecution itself. In case, the testimony of PW7 is to be believed then accused was working in factory of his employer upto 5.00 pm on 27.01.2012 and he was produced by his employer before the police in PS on 27.01.2012 itself. There is one more reason for which this fact seems to be probable. As per the case of prosecution, PW12 Ct. Jaivir alongwith PW18 SI Ramesh Chand and PW11 HC Azad Singh were present at the spot concerning investigation of this case on 28.01.12. PW4 Jiya Lal was also present at the spot. The prosecution story says that PW12 Ct. Jaivir stayed back at the spot, whereas remaining police officials alongwith PW4 Jiya Lal had left the spot for the purpose of arresting the accused after secret information was received by PW18 SI Ramesh Chand in that regard. However, PW12 Ct. Jaivir testified during trial that PW4 Jiya Lal remained present at the spot throughout the period alongwith him, while SI Ramesh Chand (PW18) and HC Azad Singh (PW11) alone had gone for arresting the accused on the basis of secret information. Same clearly falsifies the case setup by prosecution in the charge sheet that accused was arrested on 28.01.2012 in the presence of PW4 Jiya Lal. In view of these facts and circumstances, State V/s. Jai Prakash ("Acquitted.") Page 34 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 the submission raised on behalf of State that there was abscondance on the part of accused from the place of occurrence after committing the murder of deceased, is not acceptable. Consequently, same does not provide any link in the chain of circumstances for the purpose of proving the guilt of accused for committing murder of Sita Ram.
56. Apart from above, no effort is shown to have been made by IO to seize the clothes which were worn by accused at the time of incident in question. Although, the wearing clothes of deceased were seized and had been sent to FSL for examination but in the absence of relevant exhibits, be it the wearing clothes of offender stained with blood or weapon of offence being blood stained, no benefit whatsoever can be claimed by the prosecution for the purpose of proving the guilt of accused. Moreover, no motive whatsoever has been attributed on the part of accused to commit the murder of Sita Ram. PW4 Jiya Lal has admitted that he had no previous enmity with the accused. Only single brick blow is stated to have been caused on the head of deceased apart from giving 2 3 kick blows on his chest which is again not sufficient to cause the death of any person. Furthermore, PW4 Jiya Lal has admitted in his cross examination that there was one practicing doctor available on one of the floors of factory premises no. F205, where he was working. Similarly, one chowkidar was also residing on top floor of said factory premises. Incident is shown to have taken place near said factory premises but neither said doctor or chowkidar were examined during investigation nor any of them was produced during trial.
57. The net result of the above discussion is that prosecution has failed to bring home the guilt of accused Jai Parkash for committing the State V/s. Jai Prakash ("Acquitted.") Page 35 of 36 FIR No. 32/12; U/s 302 IPC; P.S. Bawana DOD: 19.07.2016 murder of Sita Ram, beyond pales of reasonable doubt. Consequently, accused Jai Parkash is hereby acquitted of the charge levelled against him by giving him benefit of doubt. He is directed to be released forthwith if not required in any other case.
58. In view of the provision contained in Section 357A Cr.PC and Victim Compensation Scheme, copy of judgment be sent to Ld Secretary(North) DSLSA, Rohini Courts, Delhi for considering award of appropriate compensation to the legal heirs of deceased Sita Ram in accordance with the law and rules framed there under. File be consigned to Record Room after compliance of Section 437A Cr.PC.
Announced in open Court today
On 19.07.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s. Jai Prakash ("Acquitted.") Page 36 of 36