Delhi District Court
Criminal Appeal No. 689/2013 Titled As ... vs . State Of on 25 November, 2014
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 71/1
Unique Identification No. 02404R0207542012
State
Versus
1. Paras @ Monu
S/o late Sh. Surender Mohan Luthra
R/o H.No. K1845,
Jahangir Puri, Delhi.
2. Rajesh Partap @ Pappi
S/o late Sh. Inder Jeet Singh
R/o H.No. K155354,
Jahangir Puri, Delhi.
3. Virender @ Vicky
S/o Sh. Hari Shankar
R/o H.No. K196364,
Jahangir Puri, Delhi.
FIR No. 114/12
PS Jahangir Puri
U/s. 304 PartII/34 IPC
Date of Decision: 25/11/2014
Date of order on sentence: 25/11/2014
ORDER ON SENTENCE
25/11/2014
Present: Ld Substitute APP for State.
All the three convicts in person with their respective counsels.
Heard on the point of sentence.
Learned defence counsel for convict Paras @ Monu has contended that
Session Case No. 71/1 Page 1
convict Paras @ Monu is aged about 36 years. He is married, having one daughter,
wife, aged mother and one younger brother to support. He is also having one sister,
who is mentally disturbed and is aged about 34 years and is still unmarried. He is
working as driver and is earning Rs. 10 to 15,000/ per month. It is further contended
that he is the only earning member of his family. It is further contended that he has
faced trial of one case of cheating, but acquitted in the same. It is further contended
that he is not a previous convict nor habitual offender, hence, lenient view be taken. It
is further contended that he remained in custody in this case from 03/05/12 to
26/04/2013 and from 11/07/2013 to 04/09/13.
Learned defence counsel for convict Rajesh Pratap @ Pappi has
contended that convict Rajesh Pratap @ Pappi is aged about 34 years. He is married,
having one child of aged about 4 years, wife and mother to support. He supplies tyre
tubes and is earning Rs. 10,000/ per month. It is further contended that he is not a
previous convict nor habitual offender, hence, lenient view be taken. It is further
contended that he remained in custody in this case from 03/05/12 to 06/09/13.
Learned defence counsel for convict Virender @ Vicky has contended
that convict Virender @ Vicky is aged about 35 years. He is married, having one
child of aged about five years, wife and aged mother to support. He is working as
Palledar in Azadpur Subzi Mandi and is earning Rs. 10,000/ per month. It is further
contended that he is not a previous convict nor habitual offender, hence, lenient view
be taken. It is further contended that he remained in custody in this case from
03/05/12 to 08/10/12 and from 01/11/12 to 03/09/2013.
On the other hand, learned Substitute APP has contended that considering
the nature and gravity of the offence proved against all the three convicts, appropriate
sentence be awarded upon the convicts alongwith compensation.
Offence u/s. 304 PartII of IPC is punishable with imprisonment of either
description for a term, which may extend to ten years, or with fine, or with both, if
the act is done with the knowledge that it is likely to cause death, but without any
Session Case No. 71/1 Page 2
intention to cause death, or to cause such bodily injury as is likely to cause death.
I have considered the submissions made on behalf of all the three
convicts and also on behalf of State alongwith the age, character and antecedents of
the convicts. Considering the same, three years S.I. is imposed upon each convict
with fine of Rs. 5,000/ each, u/s. 304 PartII/34 of IPC. In default of payment of fine,
each convict shall further undergo six months simple imprisonment.
On the point of compensation, Ld defence counsels have contended that
the considering the financial capacity of the convicts, minimum compensation be
imposed.
It has been held in Delhi Domestic Working Women's forum V. Union of
India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice
Act 1972 which gave the Courts powers to make an ancillary order for compensation in
addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The
Criminal Justice Act 1982 made it possible for the first time to make a compensation order
as the sole penalty. It also required that in cases where fines and compensation orders were
given together, the payment of compensation should take priority over the fine. These
developments signified a major shift in penology thinking, reflecting the growing
importance attached to restitution and reparation over the more narrowly retributive aims
of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required
courts to consider the making of a compensation order in every case of death, injury, loss or
damage and, where such an order was not given, imposed a duty on the court to give
reasons for not doing so. It also extended the range of injuries eligible for compensation.
These new requirements mean that if the court fails to make a compensation order, it must
furnish reasons. Where reasons are given, the victim may apply for these to be subject to
judicial review. The 1991 Criminal Justice Act contains a number of provisions which
directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in
Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of
Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation
have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to
Session Case No. 71/1 Page 3
the violations of human rights or international humanitarian law. Restitution requires inter
alia, restoration of liberty, family life, citizenship, return to one's place of residence, and
restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage
resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical
services.
In view of above, on account of physical or mental harm, including pain,
suffering and emotional distress, costs required for legal or expert assistance, medicines and
medical caused to the family of deceased Kuldeep, compensation to the tune of Rs. 75,000/
is also imposed upon each convict, payable to the LRs of deceased Kuldeep. In default of
payment of compensation, each convict shall further undergo sentence of six months SI.
The matter is also referred to DLSA for awarding compensation, if any under
Victim Compensation Scheme.
Benefit of Section 428 of Cr.PC be also given to each convict.
Fine and compensation not deposited.
Convicts are remanded to serve the sentence.
Announced in the open Court
Today on: 25th of November, 2014 ( Virender Kumar Goyal)
Additional Sessions Judge,
Fast Track Court,
Rohini/Delhi
Session Case No. 71/1 Page 4
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 71/1
Unique Identification No. 02404R0207542012
State
Versus
1. Paras @ Monu
S/o late Sh. Surender Mohan Luthra
R/o H.No. K1845,
Jahangir Puri, Delhi.
2. Rajesh Partap @ Pappi
S/o late Sh. Inder Jeet Singh
R/o H.No. K155354,
Jahangir Puri, Delhi.
3. Virender @ Vicky
S/o Sh. Hari Shankar
R/o H.No. K196364,
Jahangir Puri, Delhi.
FIR No. 114/12
PS Jahangir Puri
U/s. 302/34 IPC
Date of institution of the case: 31/07/2012
Arguments heard on: 12/11/2014
Date of reservation of order: 12/11/2014
Date of Decision: 25/11/2014
JUDGMENT
This case was registered on the statement of one Pradeep @ Vicky on 03/05/2012, u/s. 302/34 of IPC. Prior to that, DD No. 43A was recorded at PS Jahangir Puri on 02/05/2012, at about 11.07 p.m. night, regarding quarrel at K155354, Jahangir Puri, Delhi. Copy of this DD was sent to HC Ram Dayal Session Case No. 71/1 Page 5 through Ct Khem Chand for taking necessary action.
Accordingly, on receipt of DD No. 43A, HC Ram Dayal along with Ct Khem Chand reached at the spot, where they came to know that injured had been removed to BJRM hospital. Accordingly, they reached there and collected MLC of injured Kuldeep, who was declared dead by the doctor. In this regard, DD No. 3A was also recorded at PS Jahangir Puri at about 12.50 night on 03/05/2012, which was handed over to Inspector Dharam Pal for taking necessary action, who left for BJRM hospital along with HC Narender Kumar and Ct Kushvedvan. At the hospital, HC Ram Dayal met Inspector Dharam Pal, who handed over the MLC of deceased Kuldeep to him, on which, doctor had opined the alleged history of physical assault and patient expired on 03/05/2012 at 12.45 a.m. Eye witness Pradeep met them, who got recorded his statement regarding involvement of accused Rajesh Pratap @ Pappi, Virender Bhardwaj @ Vicky and Paras @ Monu in the incident. From the statement, contents of MLC and circumstances, offence u/s. 302/34 of IPC was found to be committed. Accordingly, case was got registered u/s. 302/34 of IPC through Ct Kushvedvan. Thereafter, investigation was handed over to Inspector Dharampal.
During investigation, rough site plan of the place of occurrence was prepared at the instance of complainant Pradeep. Spot was got inspected through crime team and spot was got photographed. Exhibits were lifted and were seized in this case by preparing a memo. Statements of witnesses were recorded. Dead body was preserved in the mortuary of BJRM hospital. Dead body identification statements of Balbir Kumar and Pradeep were recorded. Tshirt of complainant Pradeep, which was stained with blood, while removing the injured to hospital, was also seized in this case by preparing a memo. Brief facts were prepared. Postmortem on the body of deceased was got conducted. After postmortem, dead body was handed over to its claimants by preparing a memo.
Doctor handed over the viscera, clothes of deceased, blood sample in gauze piece along with sample seal to IO, which were seized by preparing a memo.
Session Case No. 71/1 Page 6 Crime team report was collected. PCR form was collected.
On 03/05/2012, all the three accused persons were arrested in this case. Their personal searches were conducted. They made disclosure statements. They also pointed out the place of occurrence. Pointing out memos were prepared in this regard. They were got medically examined.
During further investigation, scaled site plan was got prepared. Exhibits were sent to FSL. The deceased was having mobile phone no. 8802441538 at the time of incident, which was found missing. Its CDR was obtained, which on checking was found Nil. CDR of mobile phone of accused Rajesh was also obtained.
On completion of investigation, charge sheet was filed against all the three accused persons u/s. 302/34 of IPC on 31/07/2012. By that time, FSL result was not ready. Case was committed to the Court of Session on 07/08/2012 and was received on 09/08/2012. On 04/12/2012, charge u/s. 302/34 of IPC was framed against all the three accused persons to which they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW24 in all. On completion of the evidence of the prosecution, statements of all the three accused persons were recorded u/s. 313 Cr. P.C., wherein they have denied the case of the prosecution and have claimed false implication.
In defence, DW1 Rajesh Kumar has been examined on behalf of the accused persons.
I have heard learned APP for the State, learned defence counsels for all the three accused persons and have gone through the material placed on record with evidence adduced.
Complainant Pradeep @ Vicky has been examined as PW8. He has deposed that on the day of occurrence, he was living at H.No. K146162, Jahangir Puri, Delhi. His elder brother Kuldeep was on the third floor of aforesaid house. On 02/05/12, at about 10.30 PM, he alongwith his brother gudda, after taking meals, Session Case No. 71/1 Page 7 was strolling outside the house along with their dog Jimmy and while strolling, when they reached near bada park, 1600 wali gali in K block, near Harayana Dairy, at that time, accused Rajesh Partap @ Pappi, Virender Bhardwaj and Paras @ Monu, who were also resident of their block, met them there. They restrained his brother Kuldeep and said to him "Saale tu apne ko bada badmash samajhta hai", at which, his brother said to them "kya baat ho gayi, maine to aapko kabhi kuch nahi kaha". Meanwhile, accused Paras and Virender caught hold his brother Kuldeep and accused Rajesh Rana gave legs and fist blows on the mouth on his brother Kuldeep and struck his head on the chest of his brother Kuldeep twice or thrice, due to which, his brother fell down and became unconscious. On seeing the same, when he raised alarm, all the three accused persons ran away from the spot. The witness has correctly identified all the accused persons present before the Court.
PW8 has further deposed that when the accused persons ran away from there, he brought his brother to the house. His Bhabhi Meenakshi took his brother to BJRM hospital in the Santro car of his neighbour Sonu, which was being driven by Sonu, where his brother was admitted in the hospital. After sometime, doctor declared him dead. Police came in the hospital and made inquiries from him and recorded his statement Ex. PW8/A. PW8 has further deposed that from the hospital, he accompanied the police to the spot, where police had prepared site plan of the place of occurrence on his pointing. The same is Ex. PW8/B and bears his signatures at point A. At that time, he also handed over his blood stained Tshirt to the police, which he was wearing at the time, when he had removed his brother to the hospital. The Tshirt was of yellow colour, having dark blue colour strip. Same was taken into possession by the police vide seizure memo Ex. PW8/C. PW8 has further deposed that he came to know about the presence of accused persons in a park near Metro Apartment, at which, he took the police officials at that park near Metro Apartment, where all the three accused persons were Session Case No. 71/1 Page 8 found present. They were apprehended by the police at his instance. At that time, police had also recorded his statement in this regard.
PW8 has further deposed that on 03/05/2012, he had identified the dead body of his deceased brother Kuldeep @ Budda, which was lying in the mortuary vide identification memo Ex. PW8/D. After postmortem, the dead body of Kuldeep was received by them vide memo Ex. PW8/E and at that time, his father Balbir Kumar was also present there.
PW8 has identified the clothes of his deceased brother Kuldeep before the Court as Ex. P1 collectively, which his deceased brother was wearing at the time of occurrence. He has also identified his blood stained Tshirt of yellow colour with blue stripes before the Court as Ex. P2, which he was wearing at the time of removing his brother to hospital and which he handed over to the police.
PW4 Meenakshi is wife of deceased Kuldeep. She has deposed that on 02.05.2012, she was present inside her house. At about 10.30/11.00 pm, she heard the voice of shouting of his brother in law (Dewar ) Pardeep i.e. PW8 coming from the gali,outside their house. She came outside the house and saw her husband Kuldeep lying in galli in unconscious condition and her Dewar Pardeep was saying that three neighbouring boys namely Rajesh, Virender and Paras i.e. accused persons had beaten her husband with legs and fist blows. The accused persons were known to her as they had earlier threatened her husband to kill him. She has identified all the three accused before the Court.
PW8 has further deposed that on seeing her husband lying unconscious at that time, she along with her Dewar Pardeep and one neighbour Sonu took her husband to BJRM hospital in the Santro Car of Sonu. In the hospital, her husband was declared dead. On 06.05.2012, police came to her house and made inquiries from her and also recorded her statement. This witness has identified the clothes of her husband before the Court as Ex. P1 collectively.
PW5 Sonu has deposed that on 02.05.2012, in the night at about 10.30 Session Case No. 71/1 Page 9 pm, he was present at his house after coming back from his shop. At that time, he heard the noise in the galli outside his house. So, he came out of his house and saw lot of persons collected there. He saw Kuldeep @ Budda lying unconscious in the galli. His younger brother Pardeep @ Vicky i.e. PW8 was also present there, who told that three persons namely Vicky, Pappe and one another person, whose name he does not remember, had beaten Kuldeep with legs and fist blows. PW8 Pardeep asked him to bring his car to remove Kuldeep to the Hospital. Accordingly, he along with wife of Kuldeep i.e. PW4 Meenakshi removed Kuldeep in his car to BJRM hospital. PW8 Pardeep had also accompanied them. After getting Kuldeep admitted in the hospital, he came back to his house. On the next day, police came to his house and made inquiries from him and recorded his statement.
Since PW5 Sonu has not supported the case of the prosecution, so, he has been cross examined by Ld. APP, wherein he has admitted that PW8 Pardeep @ Vicky told him in the galli that accused Rajesh, Virender and Paras had beaten Kuldeep with legs and fist blows.
It is contended that according to PW8 Pradeep @ Vicky, who is eye witness to the incident, at the time of incident, accused persons restrained his brother Kuldeep and said to him "saale tu apne kop bada badmash samajhta hai", at which, his brother had told that "kya baat ho gayi, maine to appko kabhi kuch nahi kaha", but in the meanwhile, accused Paras @ Monu and Virender caught hold his brother Kuldeep and accused Rajesh gave legs and fist blows on the mouth and struck his head on the chest of his brother Kuldeep twice and thrice, due to which, his brother fell down and became unconscious.
It is further contended that from the incident itself, it is clear that accused persons were not having any common intention nor motive to commit murder of Kuldeep. It is further contended that deceased was BC of the area. PW4 Meenakshi is wife of deceased Kuldeep. PW8 Pradeep is brother of Kuldeep and PW5 Sonu, who had removed Kuldeep to hospital is an interested witness. It is further contended Session Case No. 71/1 Page 10 that there are other contradictions also in the depositions of the witnesses and they have failed to corroborate each other.
It is further contended that PW4 Meenakshi is wife of Kuldeep. She is not eye witness to the incident. She was informed about the incident by PW8 Kuldeep and also was told by Pradeep that all the three accused had beaten her husband with legs and fist blows. She and her devar Pradeep i.e. PW8 had accompanied in the car of PW5 Sonu, while removing Kuldeep to hospital. It is contended that Kuldeep was having mobile phone, but even then, police was not informed from the said mobile phone of Kuldeep. Statement of PW4 Meenakshi was recorded by the police at her house, although she was available in the hospital, which raises doubt on their testimonies.
This witness has been further cross examined regarding previous cases faced by deceased Kuldeep, but merely on this ground, accused persons had no right to beat him or cause such fatal injuries, due to which, Kuldeep died. According to the cross of this witness, accused Paras @ Monu is also known as ATM chor and remained in jail. It is further contended that her husband was threatened by accused persons in April, two days before the incident and accused Rajesh had also threatened outside the court not to give evidence against him. She has also been cross examined to the extent that outside the Court, Amit, Lali, Mani and Lata have abused accused Rajesh. So, except the circumstances, which had taken place regarding removal of Kuldeep to hospital, this witness has not deposed anything else.
PW5 Sonu had removed Kuldeep in his car and got him admitted there PW8 Pradeep and PW4 Meenakshi accompanied him at that time. in the cross examination conducted by ld. APP, PW5 has admitted that PW8 Pradeep told him in the gali that all the three accused persons had beaten Kuldeep with legs and fist blows. In further cross examination, he has admitted that he heard the noise of "maar gayamaar gaya" and backseat of his car had stained with blood, while removing Kuldeep and the same was not taken into possession. He removed the blood stains on Session Case No. 71/1 Page 11 the next day and got dry cleaned the seat after about one week or 10 days. He did not see any blood stains on the wearing clothes of wife of deceased Kuldeep i.e. Meenakshi or Kuldeep.
PW5 has admitted that he had not seen the boys, whose names were disclosed to him by Pradeep as assailants nor they were known to him. So, except proving the fact that he had removed Kuldeep in his car, this witness is also not eye witness to the case of the prosecution.
Eye witness to this case is PW8. He has deposed about the manner in which incident had taken place. Thereafter, he raised alarm. He brought his brother to his house and along with his Bhabhi PW4 Meenakshi removed his brother to BJRM hospital in the car of their neighbour PW5 Sonu and after sometime, doctor declared Kuldeep dead. Police came in the hospital and his statement was recorded Ex. PW8/A. On his pointing out, site plan was also prepared Ex. PW8/B. PW8 had handed over his blood stained Tshirt to the police, which he was wearing at the time, while his brother was removed to hospital. It was seized vide memo Ex. PW8/C. This witness has been cross examined on the aspect that Kuldeep was habitual drinker and on that day also, he was also under heavy influence of liquor, which this witness has denied. Again, this witness has also been cross examined regarding previous involvement of Kuldeep in some cases. He has also stated that he had tried to save his brother and during that time, accused Rajesh had threatened him, while pushing his leg towards him.
Learned defence counsel has contended that according to cross of this witness, accused persons were not armed with any weapon. They reached within 10 minutes at BJRM hospital and during that time, Kuldeep had not talked with his brother Pradeep. So lastly, Kuldeep had not disclosed to Pradeep as to why the incident had taken place.
It is further contended that according to cross of PW8 Pradeep. He had made couple of calls to PCR, but it is not true. He has also denied that his brother Session Case No. 71/1 Page 12 was so heavy that he could not be lifted by him. He has also admitted that his brother was having mobile hone at that time. Again, learned defence counsel has contended that no call was made to the PCR from that phone, to which, PW8 Pradeep had replied that he was busy in looking after his brother, so, he could not make any call to police from the mobile phone of his brother.
It is further contended that according to cross of this witness, Tshirt which PW8 Pradeep was wearing, was having button and button holes were stained with blood, which was seized, whereas before the Court, Tshirt produced was of round neck, so, PW8 has deposed falsely. In my view, it is a minor contradiction and it is not affecting the testimony of this witness because even the round neck Tshirt is stained with blood.
It is suggested to PW8 Pradeep that Kuldeep was heavy drunker or due to this reason, his liver was also affected. He has also denied that his brother was undergoing treatment for his liver problem in Health Care hospital. He has also denied that at the time of incident, his brother was under heavy influence of liquor, due to which, liver of his brother collapsed.
In my view suggesting these facts itself proves that Kuldeep was beaten by the accused persons, but the contention of learned defence counsel is regarding cause of death, which is allegedly separate from the cause of death given by the doctor. The postmortem on the body of Kuldeep was conducted by PW10 . Five lacerated/abrasions were found present on the body of Kuldeep as external injuries i.e. on upper lip and corner of mouth right side, centre of chin and centre of the chest. According to him, cause of death was combined effect of cranio cerebral damage and haemorragic shock as a result of blunt force impact consequent upon head and abdomen as a result of head injury and liver rupture, which was sufficient to cause death in ordinary course of nature. The postmortem report is Ex. PW10/A. In the cross examination, PW10 has denied that injuries observed by him, as mentioned in the PM report, could occur due to fall on staircase or any hard Session Case No. 71/1 Page 13 surface. Liver was found ruptured and about 3 liters blood in the peritoneal cavity of abdomen was found. Only suggestion was given that liver was not examined by him. PW10 was not cross examined on the aspect that being heavy drinker, liver of deceased Kuldeep ruptured and not due to injuries. So, the defence of accused persons is not in consonance with the cross examination of PW10, who had conducted postmortem.
In defence, no evidence has been brought on record to counter the findings as given in the postmortem report regarding cause of death. According to Ex. PW10/A, time death was 10 hours. Postmortem was conducted on 03/05/2012, at about 10.35 a.m., which comes to the intervening night of 0203/05/12, at about 12.35 a.m. night. Incident had taken place at about 10.30 or 10.35 p.m. According to PW8 Kuldeep, after sustaining injuries, Kuldeep was brought to his house and thereafter, he was taken to BJRM hospital in the car of PW5 Sonu and in the hospital, after sometime, Kuldeep was declared dead, so, this finding of PM report is also corroborating with the depositions of PW4 Meenakshi, PW5 Sonu and PW8 Pradeep.
DW1 Rajesh Kumar is examined in defence. He has stated that on 02/05/2012, at about 10/10.30 p.m., a quarrel was going on by the side of the park near his house. He was strolling in the park after taking his dinner. 78 or 10 persons were quarreling. Lots of public persons were also present there. He saw his neighbour Kuldeep also present there. He was also one of the person in the quarreling. Except Kuldeep, he was not knowing other persons, who were quarreling at that time. They were abusing each other and were quarreling with fist blows. Some of the persons were saying that if anyone will quarrel with Bhalswa persons, then they will teach him a lesson. Thereafter, those persons ran towards Bhalswa.
DW1 has further deposed that as Kuldeep was doing the work of cable, so, he used to remain in quarrels oftenly. All the three accused are also his neighbopurs and they are known to him very well. He was not havi9ng any mobile phone with him, so, he asked accused Rajesh, who was present there, to inform the Session Case No. 71/1 Page 14 police. Police came at the spot, but police did not make any inquiry from him. He had not seen the accused persons quarreling with Kuldeep.
DW1 has been cross examined at length by learned APP. By examining DW1, accused persons had tried to shift the burden of injuries caused to Kuldeep on the shoulders of some persons from Bhalswa area. According to DW1, he was present at the spot. He had seen Kuldeep and some persons from Bhalswa quarreling with him. They were abusing each other and quarreling with fist blows and while threatening, the said Bhalswa persons fled away. According to him, he asked accused Rajesh, who was present there to inform the police. So, what DW1 has been able to depose before the Court is that Kuldeep and some persons from Bhalswa area were quarreling with each other with fist blows. The injuries caused with fist blows are not corroborating with the external injuries as mentioned in the postmortem report Ex. PW10/A, whereas the manner, in which, the injuries caused to Kuldeep by accused persons have been found sustained by Kuldeep in the same manner, in which, accused persons had caused him i.e. with legs and fist blows and head blow given on the chest of Kuldeep twice or thrice. Moreover, the presence of DW1 has not been suggested to PW8 Pradeep in any manner nor it is suggested to him that the incident had taken place in the manner, as deposed by DW1, rather from the cross examination of PW8 Pradeep, it is clear that the accused persons were present there because it has been asked from PW8 Pradeep that accused persons were not armed with any weapon, which shows that they were present and were seen by PW8 Pradeep. In the cross examination also, PW8 has stated that his brother was declared brought dead in the hospital at about 12.45 a.m. night, which is again corroborating with the time of death, as mentioned in the postmortem report Ex. PW10/A. PW21 HC Surender Kumar has deposed that in the intervening night of 0203/05/12, he was performing his duties at channel no. 105 in PHQ, CPCR, from 8.00 p.m. to 8.00 a.m. At about 11.04 p.m., on receipt of 100 number call regarding quarrel at K block, 155354, Jahangir Puri, Delhi, he filled up PCR form and after Session Case No. 71/1 Page 15 filling the same, the said information was communicated through net for onward transmission. He has identified the PCR form as Ex. PW21/A. PW21 has not been cross examined in any manner, hence, his testimony is unbuttered and unshaken.
PW22 HC Hari Ram has deposed that on 02/05/12, he was posted as HC at PS Jahangir Puri and on that day, he was working as Duty officer from 4.00 p.m. to 12 a.m. night. At about 11.07 p.m., on receipt of telephonic information from control room regarding quarrel at K15531594, Jahangir Puri, he recorded DD no. 43A. After writing the same, its copy was sent to HC Ram Dayal through Ct Khem Chand. He has proved the copy of DD no. 43A as Ex. PW22/A. He has produced the original DD register before the Court. PW22 is a witness of formal nature. On the information received from PCR, he had recorded DD no. 43A.
PW15 HC Ram Dayal is the first IO. He has deposed that on 02/05/2012, he was posted as HC at PS Jahangir Puri and in the intervening night of 02/03.05.2012, he was on emergency duty at the PS. At about 11.07 p.m., on receipt of DD No. 43A through PW17 Ct Khem Chand, he alongwith PW17 Ct Khem Chand reached at H.No. A155354, where he came to know that injured had been removed to BJRM hospital, so, they reached at BJRM hospital, where he collected MLC no. 40889 of injured Kuldeep son of Parveen, on which, the doctor had opined him unfit for statement and he was in ICU, so, his statement could not be recorded. At about 12.45 a.m. night, doctor had declared him dead. Information regarding death was got recorded at the PS by Duty Constable Vikas.
PW23 HC Ram Avtar has deposed that in the intervening night of 02/03.05.12, he was working as Duty officer from 12 mid night till 8 am next day. On that day, he recorded DD no. 3A at about 12.50 am night, on receipt of telephonic information from Duty Ct of BJRM hospital that one Kuldeep, son of Balbir, aged about 32 years, who was got admitted in BJRM hospital by his wife Meenakshi, was declared dead by the doctor at 12.5 am. After writing DD no.3A, copy of same was handed over to Inspector Dharamapal, who alongwith Ct Session Case No. 71/1 Page 16 Kushvedvan and HC Narender Kumar left the PS for BJRM hospital. Information regarding the contents of DD no.3A was also given to SHO Inspector Yashpal. PW23 has produced the original DD register before the Court. Copy of DD no.3A is Ex.PW23/A. He has also proved certificate u/s 65B of Indian Evidence Act as Ex.PW23/B. PW23 is also a witness of formal nature. Nothing came out from his cross examination to disbelieve his testimony.
PW15 HC Ram Dayal has further deposed that after sometime, PW19 Inspector Dharampal alongwith PW14 HC Narender and PW18 Ct Khushvedvan came in the hospital and he handed over the MLC of Kuldeep to Inspector Dharampal. At that time, Inspector Dharam Pal had recorded statement of brother of deceased namely Pradeep, who was also present there. After making rukka on his statement, Inspector Dharampal handed over the same to PW18 Ct Kushvedvan and sent him to PS for registration of the case.
It is contended that according to cross of this witness, Haryana Dairy was nearby the place of occurrence, but no inquiry was made from there about the incident. In my view, when there was already eye witness to the incident, there could not be any need for making further inquiry. It is further contended that no one was left at the spot for safety of the exhibits, to which, this witness has relied that he did not see anything lying at the spot, so, no one was left there to protect the spot, hence, this contention is also not forceful in any manner.
Similarly, nothing came out from the cross examination of PW18. PW19 Inspector Dharam Pal is the IO of the case. He has deposed that on 02/05/2012, he was posted as Addl. SHO, PS Jahangir Puri. On that day, DD no. 43A was recorded at the PS regarding quarrel and the same was marked to PW15 HC Ram Dayal, who along with PW17 Ct Khem Chand reached at the spot, where they came to know that injured Kuldeep, son of Balbir, was removed to BJRM hospital. Thereafter, at 12.50 am night, on 03/05/12, DD no.3A was recorded at the PS, which was regarding death of injured Kuldeep in BJRM hospital and the same was Session Case No. 71/1 Page 17 marked to him.
PW19 has further deposed that on receipt of DD No.3A, he along with PW14 HC Narender Kumar and PW18 Ct Kushvedvan reached at BJRM hospital, where PW15 HC Ram Dayal alongwith PW17 Ct Khem Chand met him, who handed over to him copy of MLC, on which, doctor had opined alleged history of physical assault and time of death at about 12.45 am. One Pradeep i.e. PW8 also met him there, who told himself to be brother of Kuldeep and eye witness of the incident. So, he recorded his statement Ex.PW8/A. On his statement, he prepared rukka for registration of the case and handed over the same to PW17 Ct Kushvedwan for registration of the case u/s 302 of IPC. Rukka is Ex.PW19/A. Ld. APP has contended that according to cross of PW19, his statement was recorded by the police in the hospital and PW8 Pradeep has also stated so, hence, both have corroborated in this respect. It is further contended that blood stained T shirt of complainant Pradeep was also taken into possession by the IO, which has also been stated by PW8 Pradeep before the Court, so, both have corroborated in this respect also. IO has also corroborated regarding recording of statement of PW8 Pradeep in the hospital. So, nothing came out from the cross examination of PW19 to disbelieve his testimony or that he did not conduct the investigation in fair manner or that he falsely implicated the accused persons.
PW1 HC Ram Avtar has deposed that in the intervening night of 02.03/05/2012, he was posted as Duty Officer from 12 am night till 8.00 am. At about 2.20 am, he received rukka from PW18 Ct Advantageous sent by PW19 Inspector Dharampal, on the basis of which, he got recorded FIR of this case u/s 302/34 of IPC on computer. After registration of FIR, he handed over the original rukka and copy of FIR to PW18 Ct Edwardian to further hand over to PW19 Inspector Dharampal for further investigation. Copy of FIR is Ex. PW1/A. Copies of FIR were also sent through special messenger Ct Mahesh to the concerned MM and senior police officers. He also made Kayami DD No. 5A in the DD register and also Session Case No. 71/1 Page 18 made his endorsement on the rukka in red encircled portion vide Ex.PW1/B. This witness has produced the original FIR register and DD register before the Court. Nothing came out from the cross examination of PW1. Learned defence counsel has failed to point out any contradiction or irregularity to disbelieve this witness in any manner.
PW9 Ct Mahesh has deposed that on 03/05/2012, he was posted as Ct at PS Jahangir Puri. On that day, as per directions of Duty officer, after receiving copies of FIR from the duty officer, he delivered the same to Ld. MM and other senior officers at their residences on government motorcycle No. DL1SS2602. His statement was recorded by the IO in this respect on 25/07/2012. PW9 is also a witness of formal nature. He had delivered the copies of FIR to Ld. MM and to senior police officers. So, nothing came out from his cross examination to disbelieve his testimony.
PW19 Inspector Dharampal has further deposed that thereafter, dead body of Kuldeep was removed to mortuary of BJRM hospital through PW17 Ct Khem Chand. He informed the crime team to reach at the spot. Thereafter, he along with PW14 HC Narender, PW15 HC Ram Dayal and PW8 Pradeep reached at the spot, where crime team also arrived. He prepared rough site plan of the place of occurrence at the instance of PW8 Pradeep, which is Ex.PW8/B. Crime team inspected the spot and crime team photographer had taken photographs of scene of occurrence. Four buttons were also lying at the spot. Blood was also lying at the spot. He lifted blood stained floor, earth control and the four buttons lying there. Same were kept in separate plastic dibbas and were sealed in cloth pullanda with the seal of "DP" and were taken into possession vide memo Ex.PW14/A. PW3 SI Satpal Singh has deposed that on 03/05/2012, he was posted as incharge Crime team, NorthWest district, Delhi. On that day, he received a call from control room at about 1.30 a.m. night. Thereafter, he alongwith his team reached at the spot i.e. 1600 wali gali, Jahangir Puri, Delhi, where he met with SHO Session Case No. 71/1 Page 19 alongwith staff. He inspected the scene of crime and found blood at two places, in the gali. He had also seen four buttons lying in the gali alongwith one pair of hawai chappal make Relaxo. As per his instructions, HC Sudhir Kumar took photographs of the place of occurrence. He prepared his report Ex. PW3/A. His statement was recorded by the IO on the same day.
It is contended that according to Ex. PW14/A, blood stained cloth, earth control and four buttons lying here and there were collected and were taken into possession and according to crime team report Ex. PW3/A, one pair Relaxo hawai chappal was lying, which has not been taken into possession. It seems that Relaxo hawai chappal were not having any relevancy to the incident and IO has stated in this cross examination that chappals were lying in the garbage, so, same could not be taken into possession being irrelevant to the incident. Learned defence counsel has failed to point out as to how pair of Relaxo hawai chappal was connected with this case in any manner, so, these contentions are also not forceful.
PW6 HC Sudhir Kumar has deposed that on 02/05/12, he was working as photographer in the mobile crime team (NW district) and in the intervening night of 02/03.5.12, he accompanied Incharge, Crime team at the spot, where he took 9 photographs of the place of occurrence from different angles, as per the directions of the IO PW19 Inspector Dharampal, from still camera. Later on, on the basis of those photographs, he prepared positives of those photographs and handed over the same to IO. Positives are Ex.PW6/1 to 9 and negatives are Ex.PW6/10 to 18. Nothing came out from his cross examination to disbelieve his testimony.
PW19 has further deposed that in the meantime, PW18 Ct Kushvedvan reached at the spot and handed over copy of FIR and rukka to him. He recorded statement of Crime team Incharge and of photographer. After handing over the three sealed pullandas to PW15 HC Ram Dayal, he alongwith PW8 complainant Pradeep left the spot in search of accused persons and while searching, one secret informer met them, who told about the presence of accused persons in a park near Metro Session Case No. 71/1 Page 20 apartment. Hence, they reached there and on seeing three persons present in the park, PW8 complainant Pradeep had identified them and he came to know their names as Rajesh Pratap @ Pappi, Virender @ Vicky and Paras @ Monu i.e. accused persons. After interrogation, they were arrested in this case vide memos Ex. PW14/B to Ex. PW14/D in the presence of PW14 HC Narender Kumar. Their personal searches were conducted vide memos Ex. PW14/E to Ex.PW14/G. Their disclosure statements were recorded Ex.PW14/H to Ex.PW14/J. PW19 has further deposed that after arrest, all the accused persons led the police party along with complainant to the spot, where they pointed out the place of occurrence vide pointing out memos Ex.PW14/K, Ex.PW14/L and Ex.PW14/M in presence of PW14 HC Narender Kumar. At that time, complainant Pradeep (PW8) had told that his wearing Tshirt was stained with blood, when he removed his brother Kuldeep to hospital. Hence, Tshirt of yellow colour was taken into possession after preparing its pullandas with the seal of "DP" vide seizure memo Ex. PW8/C. He also recorded supplementary statement of Pradeep in this regard. One Sonu i.e. PW5, in whose Santro car injured Kuldeep was removed to hospital, was also examined by him and he recorded his statement. After that, they came back to PS, where accused persons were put in lockup and the pullandas were deposited in the malkhana.
PW19 has further deposed that thereafter, he along with PW14 Head Ct Narender and PW18 Ct Kushvedvan reached at the mortuary of BJRM hospital, where inquest proceedings were carried out for conducting postmortem on the body of deceased. Form No. 25.35 (1) (b) was filled up, which is Ex. PW19/B. He prepared brief facts Ex. PW19/C and also recorded statements of Balbir Kumar and Pradeep regarding identification of dead body of deceased, which are Ex. PW19/D and Ex.PW8/D respectively. He also made request for postmortem vide Ex. PW19/E. After postmortem, dead body was handed over to father of deceased vide Ex.PW8/E. After postmortem, doctor handed over sealed viscera, sealed pullanda of clothes of Session Case No. 71/1 Page 21 deceased, sealed envelope containing blood sample in gauze cloth piece alongwith sample seal to him, which were taken into possession vide seizure memo Ex. PW19/F. He handed over the pullandas to PW17 Ct Khem Chand. Thereafter, they came back to PS. Thereafter, accused persons were taken out from the lockup and were got medically examined and were produced before the concerned court, from where, they were sent to J.C. After that, police party came back to PS, where he got deposited the case property in the malkhana. He also recorded statements of accompanying police witnesses regarding their respective investigation.
PW19 Inspector Dharam Pal has further deposed that on 06/05/12, he recorded statement of Meenakshi, wife of deceased Kuldeep i.e. PW4. On 10/05/2012, he took SI Manohar Lal to the spot, who took rough notes and measurements at his instance. Later on, on the basis of those rough notes and measurements, he prepared scaled site plan, which was collected by him.
PW7 SI Manohar Lal has deposed that on on 10/05/2012, he accompanied PW19 Inspector Dharam Pal to the spot, where he took rough notes and measurements at the instance of IO, on the basis of which, he prepared scaled site plan Ex. PW7/A on 11/05/12 and handed over the same to the IO on 25/07/2012. IO recorded his statement in this regard. PW7 is a witness of formal nature.
PW19 has further deposed that on 06/06/12, he moved application to concerned Nodal officer through concerned ACP via email for collecting CDR of the four mobile phones of accused persons. The photocopy of the said application is Ex. PW19/G. On 14/06/12, he obtained CDR of the mobile phones of accused persons and after going through the same, he came to know that on 02/05/12, at 11.08 p.m., a 100 number call was made from mobile no. 9958737686 pertaining to accused Rajesh. The call detail record, which was obtained of the aforesaid mobile phone from Air Tel company, the owner ship of the said mobile phone was mentioned as of Rajesh, R/o K1554, Block K, Jahangir Puri, Delhi. The call detail record is Ex. PW19/H. Session Case No. 71/1 Page 22 PW19 Inspector Dharam Pal has further deposed that on 25/07/2012, he moved application to the nodal officer of Air Tel mobile company to provide the call detail record of mobile no. 9958737686 for the period from 02/05/12 to 04/05/12 along with certificate u/s. 65B of Indian Evidence Act. He also made request to preserve the above aforesaid CDR. On his application, on the same day, the Nodal Officer had provided call detail record of abovesaid mobile phone along with Certificate u/s. 65B of Indian Evidence Act Ex. PW12/A and Ex. PW12/B respectively. His application is Ex. PW19/I. PW12 Vishal Gaurav has deposed that on 25/07/12, he was working as Nodal officer in Bharti Airtel, having office at D/184, Okhla Ind. Area PhI, Delhi, and on that day on the request of IO, he issued call detail record of mobile number 9958737686 for the period from 02/05/12 to 04/05/12. At that time, he also issued certificate u/s 65B of Indian Evidence Act to the IO. Call detail record is Ex.PW12/A. Certificate u/s 65B is Ex.PW12/B. He also made endorsement on the application of the IO regarding handing over these documents to IO, which is Ex.PW12/C. PW12 has produced the aforesaid call detail record alongwith the customer application form, in original, customer voter ID card, cell ID chart alongwith distributer calling feedback form. Photocopy of customer application form is Ex.PW12/D. Feedback form is Ex.PW12/E. Election ID card is Ex.PW12/F and cell ID Chart is Ex. PW12/G. As per record, the above mobile number was issued to accused Rajesh, son of Kamlesh R/o K155354 K block, Jahangirpuri,Delhi.
It is contended that PW12 has proved the customer application form of accused Rajesh Ex. PW12/D, according to which, the mobile phone number 9958737686 was issued in the name of accused Rajesh. It is further contended that according to DW1, at his instance, accused Rajesh had informed the police on 100 number and he was not involved in the incident. It is further contended that in the PCR form Ex.PW21/A, mobile phone number of accused Rajesh is appearing as 9968737686. He informed the police about quarrel at K15531554 Block, Jahangir Session Case No. 71/1 Page 23 Puri, at about 11.04 p.m., so, he could not be involved in the incident in any manner and had it been so, then he would not have informed the police about the incident.
On the other hand, Ld. APP has contended that according to rough site plan Ex. PW8/B and scaled site plan Ex. PW7/A, the incident had taken place in K Block, 1600 wali gali, wherein house numbers are starting from 1600 and in both the site plans, none of the house 15531154 has been shown. It is further contended that according to PW8, incident had taken place at about 10.30 p.m. in 1600 wali gali, K Block near Haryana Dairy and PW21 has not been cross examined in any manner in this respect nor PW8 Pradeep has been cross examined and suggested that incident had taken place at K15531554, Jahangir Puri, Delhi. Even PW7 and PW8 have also not been cross examined about the place of incident. It is further contended that it is deposed that incident of this case happened at 10.30 p.m. and the said information as recorded in Ex. PW21/A i.e. PCR form 11.05 p.m. is separate from the incident of this case. It is further contended that it has been mentioned in the PCR form Ex.PW21/A that they reached at the spot and came to know about the issue of "paiso ke liye jhagra", but no such incident of dispute over money had happened nor it has been deposed by PW8 Pradeep, eye witness. It was also not suggested to the witness in any manner that a quarrel had taken place on the issue of money. So, the contention of learned defence counsel in respect that accused Rajesh himself has informed the police about the incident, which had taken place with injured and some other persons of Bhalswa area is not tenable in any manner.
PW19 Inspector Dharam Pal has further deposed that on 14/06/2012, he collected crime team report from crime team incharge SI Satpal. On 18/06/2012, he collected PCR form regarding DD No. 43A. On 25/07/12, he also recorded statements of HC Narender Singh, HC Ram Dayal, Ct Sri Pal, HC Jaipal, HC Surender Kumar, Ct Mahesh and SI Manohar Lal. On completion of investigation, he prepared the challan and handed over the case file to the SHO. By that time, FSL result was not available. So, the same was collected later on and was submitted Session Case No. 71/1 Page 24 before the Court vide his application Ex.PW19/J. The FSL report prepared by M.S. Imrana is Ex. PW19/K and by S.S. Badhwal is Ex. PW19/L and of Dr. Adesh Kumar is already Ex. PW20/A. PW19 has identified the blood stained Tshirt of yellow colour with blue stripes as Ex. P2, which was taken into possession from the complainant Pradeep,blood stained earth as Ex. P3 and earth control as Ex. P4, which were lifted from the spot and four buttons as Ex. P5, which were taken into possession.
PW14 HC Narender and PW118 Ct Kushvedvan has deposed the same facts as of PW19 Inspector Dharam Pal regarding joining the investigation and conducting of proceedings. This witness has also been cross examined regarding the character of the deceased to the extent that he was BC of the area. Merely this fact being BC of area had not given any right to the accused persons to cause injury to said Kuldeep, who died.
PW16 HC Jaipal Singh has deposed that on 22/05/12, he was posted as MHC(M) at PS Jahangirpuri. On that day, he handed over 6 pullandas to Ct Shreepal to be deposited in FSL Rohini vide RC no. 65/21/12. Out of 6 pullandas, four were sealed with the seal of DP and two were sealed with the FMT BJRM and one sample seal was also sent. Accordingly, the same were deposited by Ct Shreepal to FSL Rohini, who handed over to him the acknowledgment receipt. On 22/05/12, vide RC no. 66/21/12, sealed viscera was handed over to Ct Shreepal to be deposited in FSL Rohini, which was deposited on the same day.
PW13 Ct Shripal has deposed that on 22/05/12, he was posted at PS Jahangirpuri and on that day, as per the directions of IO Inspector Jai Parkash, he took the exhibits of this case from MHC(M) alongwith FSL form to be deposited at FSL Rohini vide RC no. 65/21/12. Accordingly, he deposited the same vide receipt no. 2012/C3536 dated 22/05/12 and handed over the same to MHC(M). Till exhibits remain in his possession, the same were not tampered with. His statement was also recorded by the IO. On 25/07/12, IO had again made inquiries from him and at that Session Case No. 71/1 Page 25 time, he told him that on 22/05/12, he took seven exhibits in all, which were four pullandas sealed with the seal of DP and one pullanda sealed with the seal of FMT BJRM and one envelope also sealed with the seal of FMT BJRM alongwith one sample seal of FMT. Apart from the aforesaid pullandas, he also took one sealed pullanda of wooden box containing viscera sealed with the seal of FMT BJRM alongwith sample seal of FMT BJRM hospital alongwith FSL form vide RC no. 66/21/12. His supplementary statement was also recorded by the IO to this effect on 25/07/12. PW13 had deposited the exhibits at FSL, so, nothing came out from his cross examination to disbelieve his testimony.
PW16 HC Jaipal Singh has further deposed that on 09/11/12, Ct Vijender handed over six sealed pullandas sealed with the seal of FSL alongwith two FSL reports to him and he deposited the same in the malkhana and handed over the report to IO. On 26/09/12, Ct Anil had handed over sealed viscera alongwith FSL Report to him and he deposited the same in the malkhana and handed over the report to IO.
PW16 has further deposed that he made entries in malkhana register regarding sending and again depositing the exhibits by him opposite entry no. 3257. He has produced the original malkhana register before the Court. Copy of relevant entries is Ex.PW16/A. He has also produced original RC register no.21 before the Court in proof of entry no. 65/21/12, copy of which is Ex.PW16/B and copy of RC no. 66/21/12 is Ex.PW16/C. Acknowledgment receipt of six pullandas is Ex.PW16/D and the acknowledgment receipt of viscera is Ex.PW16/E. According to PW16 HC Jaipal Singh, entries regarding depositing the pullandas in the malkhana vide entry no 3257 and 3258 were made by earlier MHC(M) HC Jagbir. PW16 was working as MHC(M). He is a witness of formal nature. He has not been cross examined on any material aspect.
PW20 Dr. Aadesh Kumar has deposed that on 22/05/2012, he was working as Senior Scientific Officer (Chemistry) in FSL Rohini, Delhi. On that day, Session Case No. 71/1 Page 26 one sealed wooden box along with sample seal was received at their office from SHO PS Jahangir Puri in connection with this case. The same was marked to him for chemical examination. He found the seal intact. He examined parcel No. 1 i.e. wooden box, which contained Ex. 1A i.e. stomach pieces of small intestine with contents kept in a sealed jar, 1B i.e. pieces of liver, spleen and kidney kept in a sealed jar, 1C i.e. blood sample 10 ml kept in a sealed bottle and 1D i.e. reddish colour liquid approximately 8 ml stated to be blood sample for alcohol.
PW20 has further deposed that on chemical and GCHS examination, Ex. 1A, 1B, 1C and 1D were found to contain ethyl alcohol. Ex. 1C and 1D were found to contain ethyl alcohol measuring 58.90 mg and 125.20 mg per 100 ml of blood respectively. After examination, the remnants were resealed with the seal of "AY FSL DELHI". He prepared his detailed report Ex. PW20/A in this regard. PW20 has not been cross examined in any manner, hence, his testimony is unrebutted and unshaken.
Cause of Death:
PW2 Dr. Gopal Krishna has deposed that on 02/05/2011, he was working as CMO in BJRM hospital and on that day, at about 11.30 pm, patient Kuldeep son of Balbir, a male aged about 32 years, who was brought by his wife Meenakshi with alleged history of physical assault in the casualty department, was examined by Dr. Subhash Singh under his supervision, who has left the services of the hospital and his present whereabouts are not known. After examination by Dr. Subhash Singh, patient was referred to SR Surgery, SR Medicine and SR Ortho. Accordingly, patient was also examined by SR Ortho and SR Medicine. PW2 has proved the MLC as Ex.PW2/A and has identified the handwriting and signatures of Dr. Subhash Singh at point A on the MLC as he had seen him writing and signing during the official course of his duties, except the notes made by SR Medicine and also his signatures at point B. PW2 has further deposed that at about 12.45 am, on 03/05/12, patient Session Case No. 71/1 Page 27 had expired and he made endorsement to this effect in the red encircled portion on MLC Ex. PW2/A. The patient was also examined by Dr. Manoj, SR Ortho. Portion A to A on the back side of this MLC is in the handwriting of Dr. Manoj and bears his signatures at point D. PW2 has identified the writing and signatures of Dr. Manoj as he had seen him writing and signing during the official course of his duties. As per MLC Ex.PW2/A, patient had sustained abrasion over left side forehead, abrasion over right upper side of lid and lacerated wound over right side of upper lid approx 0.5 x 0.5 cm.
PW11 Dr. Ravinder has deposed that on 02/05/11, he was working as SR Medicine in BJRM hospital and on that day, patient Kuldeep son of Balbir Singh, a male about 32 years, after examination by Dr Subhash, was referred to SR Medicine, SR Ortho and SR Surgery for further treatment. Accordingly, at about 11.30 pm, he further examined the patient and after treatment, he also referred the patient to SR Surgery and SR ortho for further treatment. During examination, he found that pulse and BP of the patient was not recordable. The patient was immediately intubated and was put in CMB mode of ventilating support and the require treatment was provided. At about 11.45 pm, the patient was examined by him and at that time also, pulse and BP was not recordable. Both the pupils were semi dilated and reacting sluggish and ECG was showing sinusteachycardia. Patient was comatose i.e. was not responding. He also made entries on MLC regarding his examination and treatment given to the patient. MLC is Ex.PW2/A and entries in red encircled portion are in his handwriting and bears his signatures at point C. According to PW24 Dr. Gopal Krishan, on 02/05/2012, at 11.30 p.m., patient Kuldeep was brought to the casualty of their hospital and was examined by Dr. Subhash Singh under his supervision. The patient was also examined by Dr. Ravinder, SR (Medicine) and Dr. Manoj, SR (Ortho). The condition of the patient deteriorated. On 03/05/12, at about 12.15 a.m., the patient had cardiac arrest. CPR was done but despite of all available resuscitative measures, the patient could not be Session Case No. 71/1 Page 28 revived and he expired at about 12.45 a.m. Thereafter, the dead body was sent to the mortuary. He also prepared death summary Ex. PW24/A. He also issued death certificate Ex. PW24/B. PW10 Dr. Sudesh Kumar has deposed that on 03/05/12, he was working as Medical Officer at BJRM Hospital and on that day, he conducted postmortem on the body of Kuldeep son of Balbir Kumar, male about 32 years, who was brought with alleged history of deceased as per brief facts. The person was brought dead in the BJRM hospital and was sent for autopsy. On general examination, he found that dead body was wearing check shirt, white baniyan and blue nicker. Body was well built and rigour mortis was present all over the body. Postmortem staining was present at back. Eyes and mouth were found closed. Conjunctivea congested, cornea hazy and tongue was inside.
PW10 has further deposed that he observed certain external and internal injuries on the body of the deceased. In his opinion, cause of death was combined effect of "Craniocerebral damage" and haemorragic shock as a result of blunt force consequent upon head and abdomen as a result of head injury and liver rupture was sufficient to cause death in ordinary course of nature. All injuries were fresh in duration and antemortem in nature. Time since death, as per hospital record was 10 hours.
PW10 has further deposed that viscera was also preserved and was handed over to IO to rule out the possibility of common poisoning. Total number of inquest papers prepared were 15. His detailed report in this regard is Ex.PW10/A. Clothes of the deceased were sealed with the seal of FMT, BJRM Hospital and the same were handed over to IO. Blood in gauze piece was also preserved and sealed and was handed over to the IO alongwith sample seal.
PW10 has seen FSL report no. 2012C/3536 dated 13/09/12, which was prepared by Dr Adesh Kumar, Senior Scientific officer (Chemistry), FSL Rohini. According to FSL report, no common poisoning was detected in Ex. 1a, 1b and 1c, Session Case No. 71/1 Page 29 so, according to PW10, the cause of death of deceased is also same as told by him in his postmortem report.
According to report Ex. PW19/K and biological report, which is per se admissible u/s. 293 of Cr.P.C., the exhibits, which were lifted from the spot i.e. T shirt of PW8 Pradeep and wearing clothes of deceased along with his blood sample were found having human blood. Presence of human blood in the Tshirt and in the exhibit lifted from the spot i.e. blood stained earth itself proves that incident had taken place in 1600 wali gali as shown in rough site plan and scaled site plan.
Accused Rajesh has not explained in his statement recorded u/s. 313 Cr.P.C. as to in what reference quarrel had taken place at about 11.04 p.m. at K15531554. In his statement recorded u/s. 313 Cr.P.C., accused Rajesh has denied his knowledge about the PCR call, which allegedly made by him at the instance of DW1 Rajesh Kumar as stated in reply to question no. 13 about the recording of information at PHQ by PCR officials. In the last of his statement, accused Rajesh has stated that he had made a call about the quarrel between deceased and some boys.
From the deposition of PW12 Vishal Gaurav, it is clear that this is the address of accused Rajesh himself, which is different from the place of occurrence. So, DW1 Rajesh Kumar cannot be relied upon and call made by the accused was not about the incident of this case. Address of accused Rajesh is not far away from the place of occurrence, so, after causing injuries, he could have reached at his house easily till 11 p.m. No details of the call are available, so, it could be a false call also to divert the attention of the police and investigation.
It is contended by Ld. APP that PW4 Meenakshi and PW8 Pradeep both have stated that accused persons had threatened to kill Kuldeep prior to the date of occurrence and on the day of incident, they had caused injuries to Kuldeep with intent to commit his murder.
On the other hand, Ld. Defence counsels have contended that no report has been lodged in respect of the said threat and PW8 Pradeep has admitted that there Session Case No. 71/1 Page 30 was no prior enmity between the accused persons and his family members. So, there could not be any possibility of threatening of Kuldeep by accused persons to kill him on any issue. It is further contended that accused persons were neither having any intention nor motive to commit murder of Kudeep, so, the case of prosecution is not falling u/s. 302 of IPC.
All the witnesses i.e. PW8 Pradeep, eye witness to the incident and PW4 Meenakshi and PW5 Sonu have corroborated each other to the extent that accused persons in furtherance of their common intention caused injuries to Kuldeep with knowledge that such injuries were likely to cause death and further that, after sustaining injuries, Kuldeep was removed to BJRM hospital, where he was declared dead at about 12.45 a.m. night, as deposed by PW8. Other witnesses to the investigation have also corroborated each other. The contentions of learned defence counsel are not forceful in any manner regarding the Tshirt, whether it was round neck or was having button holes, regarding the call made by accused Rajesh to the police about a quarrel, contradictions about the call, regarding place of incident and also about the time because the incident had taken place, according to PW8 Pradeep, at about 10.30 p.m., whereas call was made at about 11.00 p.m. Accused Rajesh has also not preferred to depose the facts about the call on oath before the Court, rather he has examined some other defence witness in respect of the fact that at the instance of DW1, he had made a call. Accused Rajesh has also failed to explain the circumstances about the quarrel in his statement recorded u/s. 313 Cr.P.C., so, same is no inspiring any confidence, hence, DW1 Rajesh Kumar cannot be relied upon.
According to the depositions of the witnesses, accused persons were arrested from a park near Metro Apartment, Jahangir Puri, in between 4.15 a.m. to 4.45 a.m. on 03/05/2012. In this respect, accused persons have not explained as to what they were doing in the early morning and why they were not present at their houses, if they had not committed the offence. Accused persons have raised the plea Session Case No. 71/1 Page 31 of innocence only and have failed to explain as to in what manner, they were arrested by the police officials, if not arrested in the manner as deposed by the police officials, so, mere denial is not sufficient, which shows that they were absconding after causing the injuries to Kuldeep.
In view of above, the prosecution has been able to prove offence u/s. 304 PartII of IPC read with Section 34 of IPC against all the three accused persons beyond reasonable doubts, for which, they are held guilty and convicted for the same.
Announced in the open Court
Today on: 25th of November, 2014 ( Virender Kumar Goyal)
Additional Sessions Judge,
Fast Track Court,
Rohini/Delhi
Session Case No. 71/1 Page 32