Delhi District Court
State vs . (1) Pradeep Kumar on 16 July, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII(NW): ROHINI COURTS: DELHI
Session Case: 636/06
Unique Case ID No. 02404R0234732006
State Vs. (1) Pradeep Kumar
S/o Sh. Umed Singh
R/o House No. 46,
Village Pooth Kalan,
Delhi
(Convicted)
(2) Ashok Kumar
S/o Sh. Man Singh
R/o House No. 47,
Village Pooth Kalan,
Delhi
(Convicted)
(3) Satish Kumar
S/o Sh. Man Singh
R/o House No. 47,
Village Pooth Kalan,
Delhi
(Convicted)
FIR No.: 298/2005
Police Station: Jahangir Puri
Under Section: 307/323/341/34 IPC
St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 1
Date of committal to Session Court: 15.2.2006
Date on which orders were reserved: 2.6.2011
Date on which judgment pronounced: 16.7.2011
JUDGMENT:
As per allegations on 16.4.2005 at about 5:30 pm at BJRM Hospital, Jahangir Puri, Delhi all the accused Pradeep Kumar, Ashok Kumar and Satish Kumar in furtherance of their common intention caused injuries on the head of Chattar Singh and Arun with a leather cutting Raapi which such intention or knowledge and under such circumstances if by the said act death is caused they would be guilty of murder. Further, it is also alleged that the accused wrongfully restrained Chattar Singh.
BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 16.4.2005, DD No. 54B was received at Police Station Jahangir Puri pursuant to which SI Dev Karan along with Ct. Ravinder reached at BJRM Hospital and collected the MLCs of Chattar Singh, Arun Kumar and Jag Pravesh. SI Dev Karan recorded the statement of Chattar Singh wherein he informed the police that on 16.4.2005 he had gone to village Jati Kalan, Haryana in connection with some engagement of his niece and returned home at about 1:00 PM when his wife St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 2 informed him that his daughter in law namely Poonam had vomited and his son Arun had taken her to BJRM Hospital. According to Chattar Singh, at about 2:00 PM he received a call from Arun informing him that Poonam was admitted in the hospital and when he reached BJRM Hospital he came to know that Poonam had expired. The injured Chattar Singh had further informed the police that he had accordingly informed the brother of the deceased namely Satish Kumar on telephone and at about 5:30 PM, Satish Kumar, Ashok Kumar and Pradeep Kumar i.e. the brothers of Poonam and many other persons from the village Pooth Kalan reached the Hospital. Thereafter they started abusing him and while Ashok and Satish caught hold of him, the accused Pradeep inflicted injuries upon on his head, back and waist and stomach with the help of a Rapi. According to the Chattar Singh, he was rescued by his son Arun Kumar, Jag Pravesh and the police officials.
On the basis of the statement of Chattar Singh, the present case was got registered and all the three accused Satish Kumar, Ashok Kumar and Pradeep Kumar were arrested. Pursuant to the arrest of Pradeep Kumar, he got recovered the Rapi from the drain/ nali in front of Emergency Ward of BJRM Hospital. After completion of investigations, all the accused were charge sheeted for the offence under Sections 307/323/341/34 Indian Penal Code. St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 3 CHARGE:
The Ld. Predecessor of this court had settled the charges under Section 307/323/341/34 Indian Penal Code against all the accused to which they pleaded not guilty and claimed trial. EVIDENCE:
In order to prove its case the prosecution has examined as many as Nine witnesses as under:
Public witnesses/ eye witness/ complainant:
PW3 HC Vijay Kumar is the eye witness who has deposed that on 16.4.2005, he was posted in Police Station Jahangirpuri and was deputed as a duty Head Constable at BJRM Hospital from 8.00 AM to 9.00 PM. According to him, on that day at about 5.30 PM, he was present in the Casualty when he heard loud noises outside the casualty on which he came out and saw that one person was caught by two persons and the third person was giving beatings to him with a 'rapi' (instrument for cutting of leather). According to the witness, with the help of public persons, the person who was being beaten was rescued and the names of three persons who were giving beatings were later on revealed as Satish, Ashok and Pardeep. He has further deposed that the person who was being given beatings was Chattar Singh. PW3 has testified that two persons who had caught hold of Chattar Singh were Satish and St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 4 Ashok whereas the third person who was giving beatings to Chattar Singh with rapi was Pardeep Kumar. He has correctly identified all the three accused in court today and has deposed that he gave information on telephone to police station Jahangirpuri where DD No.54B was registered. According to him, during the medical examination of injured Chattar Singh, the doctor seized his blood stained shirt in a pullanda sealed with the seal of BJRM and handed over the same to him and the investigating officer seized the pullanda vide memo Ex.PW3/A. In his cross examination the witness has deposed that prior to the incident the accused persons were not known to him and he had not joined the Test Identification parade of the accused persons. He has denied the suggestion that he had not seen the incident or that he was told the names of accused persons by Chattar Singh while he told that they have caused injuries to him. PW3 has also denied the suggestion that Chattar Singh sustained injuries due to fall on the ground or that Chattar Singh told him the names of the accused persons.
PW4 Arun Kumar has deposed that on 16.04.05 he took his wife Poonam to BJRM Hospital as she had suffered food poisoning and they reached in the hospital at around 12.30 PM and after being admitted in the hospital, Poonam was given treatment till St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 5 3.30 PM. He has also deposed that his father Chattar Singh and his cousin Jag Parvesh came to the hospital at around 4.00 pm. According to the witness, when they inquired from the doctor, the doctor declared his wife dead on which he came out and told the fact that Poonam had expired to his father Chattar Singh on which his father and he himself started weeping. PW4 has testified that he told his father to give this information to his in laws at home and accordingly his father telephoned his inlaws. According to him, at around 5.30 PM, about 25 to 30 people came from his inlaws place who gave beatings to his father Chattar Singh. He has further deposed that the accused Ashok and Satish caught hold of his father Chattar Singh and accused Pardeep gave blow with some sharp edged weapon on his father Chattar Singh who received injuries on head, back and stomach and he and his cousin Jag Parvesh tried to save his father but the other relatives of Poonam chased him and Jag Parvesh and hence they both entered inside the hospital and were saved in the hospital by the police persons. The witness has testified that he was thereafter taken to the police station where he came to know that his father was serious and was in hospital. He has correctly identified all the accused in the court.
In his cross examination by Ld. defence counsel, the witness has deposed that he entered the hospital after running for about 20 steps and two or three police officials came inside the St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 6 hospital. He has admitted that he was facing trial in case FIR No. 143/05 U/s 304B/498A/34 IPC in connection with dowry death of his wife Poonam and his father Chattar Singh, his mother Smt. Ramrati and his brother Amardeep are also the accused in that case. He has further admitted that prior to registration of the present case against him, case FIR No. 143/05 U/s 304B/198A/34 IPC was registered in Police Station Alipur against him and his family members but states that he was not aware whether it was registered prior to registration of the present case or not. He has denied that he along with his family members used to harass his wife Poonam in connection with demand of dowry. According to him Poonam had married him on 26.11.2001 and she died unnatural death on 16.04.05 but he is not aware how his wife committed suicide. He has denied that his wife committed suicide due to harassment caused by them to her on account of demand of dowry and she went to her parental house as he and his family members harassed her for demand of dowry and he only brought Poonam with him when she brought Rs. 5060 thousand from her parents. The witness has also denied that he had not seen the accused Pardeep in the hospital on 16.04.2005 and his father falsely implicated the accused persons only as a counter blast FIR No.143/05 against them. He has admitted that his wife Poonam had gone to her parental house and he had gone to bring his wife Poonam from his in laws house on 31.03.05. St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 7
PW5 Chattar Singh is the injured who has deposed that on 16.04.05 he had gone to Jati Kalan, Haryana in connection with some engagement of his niece and came back to his home at around 1.00 PM when his wife told him that Sneh @ Poonam wife of his son Arun Kumar had vomited and was taken to hospital in Delhi. According to him, at around 2.00 PM Arun Kumar called up in the house of their neighbour Dhanno where he went to the house of Dhanno and attended the call of Arun Kumar who told him that Poonam was unwell and admitted in BJRM hospital Jahangirpuri. The witness has testified that thereafter he went to BJRM Hospital and reached there at 4.00 PM and found that his son Arun Kumar was sitting in the parking and was weeping. The witness has also deposed that Arun told that Poonam had expired in the hospital on which he made a telephone call in the parental house of Poonam, which was attended to by Satish, brother of Poonam. According to the witness, at around 5.15/5.30 PM SI Dalbir Singh along with Ct. Prem Pal Singh came to BJRM hospital and started recording his statement and in the meantime, relatives of Poonam also came in the hospital who were 40/50 in number and all of them started giving beatings to him. PW5 has further deposed that one of the assailant was under the influence of liquor and he told Pardeep to use the weapon given by him and thereafter Pardeep, Satish and Ashok took St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 8 him aside and gave him beatings. The witness has testified that the accused Pardeep gave a blow with Rapi in his stomach and thereafter Ashok took that rapi from Pardeep and gave a blow with it on his head and back of waist and brought him back and threw him there on which he became unconscious. He has deposed that he regained his consciousness only at around 7.45 PM when he found his shirt stained with blood and went inside the emergency room of the hospital where Raj Singh (chacha of Poonam) who gave beatings to him, when Satish came there and asked Raj Singh to leave him (injured) saying that they had done whatever they intended. He has also deposed that the hospital staff took him to the dressing room where he was given stitches on his head, back of the waist and stomach and then he was shifted to Emergency Room. According to PW5 the doctor had taken his blood stained shirt and the Investigating Officer seized the same vide memo Ex.PW3/A. Further, according to the witness, police had seized the rapi recovered from the possession of accused Pradeep which was also sealed with the seal of BJRM Hospital and seized vide memo Ex.PW5/B. The witness has further deposed that on 17.04.05 at 7.00 AM two Head Constables of Police Station Alipur came to BJRM hospital where he was admitted and they told him that they would take him to a nursing home but they took him to police station St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 9 Alipur where he was arrested in a case for the dowry death of his daughter in law Poonam. The witness has also deposed that his son Arun Kumar and his wife Ramrati were already available in the police station along with two of his grand daughters and on 18.04.05 he was sent to jail and there in jail hospital his stitches were removed. He has correctly identified the accused as well as the case property i.e. his shirt which is Ex.P1 and the rapi which is Ex.P2.
In his cross examination, this witness has deposed that he had a copy of FIR No.298 dated 16.04.05 police station Jahangirpuri and he had gone through the FIR prior to his deposition. He has denied the suggestion that he had not become unconscious and states that when he regained consciousness he himself went to Emergency Ward. According to the witness, when 40 to 45 persons started bearing him, SI Dalbir Singh and Ct. Prem Pal Singh ran away from the spot, though he requested SI Dalbir Singh and Ct Prem Pal to save him but they did not hear his request and left him there. The witness has further deposed that none was apprehended out of those 40 to 45 persons who gave him beatings in the hospital and none of them was arrested subsequently also. According to PW5, the police then arrested the accused in the present case and they were arrested only because they are real brothers of deceased Poonam. He has also deposed that when 40 to St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 10 45 persons were giving beatings to him, except SI Dalbir Singh and Ct. Prem Pal, no other police official or public person was present. The witness has also testified that when he regained consciousness and went inside the hospital then he was beaten by Raj Singh, (chacha of Poonam) who after beating him left the hospital and could not be apprehended and was also not arrested subsequently. PW5 has testified that he was discharged from the hospital at about 7.00 AM but he does not know who recorded his statement. According to him, Maan Singh was apprehended by the police but was later on left off. He has admitted that he was facing trial in the dowry death case of Poonam where he was an accused. He has denied that he and his family members used to compel Poonam to bring money and dowry articles which were being demanded by him and his family as a result of which she used to face harassment. The witness has also denied that he, his wife and other family members had subjected Poonam to beatings and compelled her to return to her father's house and that they had been subjecting Poonam to harassment even after accepting Rs.50,000/ or that Poonam committed suicide after facing mental and physical harassment from his and his family in connection with dowry demand. He has denied that his son Arun Kumar had brought back Poonam, because Poonam's brother had taken her away from his (witness) house. According to him, the at the time when Poonam had expired, he was St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 11 Senior Assistant in NDMC, Vigilance Department and has denied that his signatures were taken by the police on documents in the police station and he had got this present case registered on false grounds only to pressurize and compel the family of Poonam not to depose against him and his family in the other case.
PW6 Jag Parvesh is a friend of Arun Kumar who has deposed that on 16.04.05 he had gone to BJRM hospital as he came to know that wife of Arun Kumar who resides in his neighbourhood was admitted there. According to him, when he reached hospital he found Arun Kumar and his father Chattar Singh outside the hospital and they were weeping and they told him that Poonam had expired at about 4.00/4.30 PM. He has also deposed that thereafter at about 5/5.30 PM 20 to 25 persons came in the hospital and they inquired from him as to from where he was on which he told that he was from village Bakhtawarpur. According to PW6, Arun Kumar was also with him at that time and his father Chattar Singh was at some distance and the said persons started giving beatings to Arun Kumar and when his father came to his rescue, he was also given beatings and when he (witness) tried to intervene he was also given beatings by those persons. He has testified that thereafter some boys had taken Chattar Singh aside at a distance of about 10/15 paces and gave blows to him with a rapi on which the police officials who present St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 12 there intervened but they were also beaten by those persons and thereafter police officials called other police and other police force reached at the spot in police vehicles but by that time some of these boys ran away and some remained present there and were arrested by the police. According to him, since he had also sustained injuries, therefore he was medically examined after which the police recorded his statement. He has deposed that out of those persons who gave beatings to them, one or two were known to him prior to incident and one of them was Satish Kumar, younger brotherinlaw of Arun Kumar and the other was the cousin brother of Satish Kumar and some uncles were also present. The witness has deposed that later on names of those persons were revealed through police as Ashok Kumar and Pardeep Kumar. According to the witness, during the quarrel he also heard the names of Raj Singh, Rajesh etc. He has correctly identified the accused Satish Kumar, Ashok and Pardeep Kumar in the court.
Addl. PP for the State with permission of the court has put leading question to the witness regarding the vehicles and the words uttered by the accused and specific role of different accused persons during which the witness has deposed that he is not aware whether the accused and other persons came in a tempo in the hospital or whether the accused along with other persons after reaching in the hospital started giving abuses to the family of Arun St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 13 Kumar and started saying that they would take the revenge of the death of Poonam. However, he has admitted that Ashok and Satish caught hold Chattar Singh and Pardeep Kumar gave rapi blow on the body of Chattar Singh.
In his cross examination by the Ld. defence counsel the witness has deposed that Raj Singh and Rajesh were not apprehended by the police nor any other persons from 2025 who gave beatings was arrested. According to him, no police officials talked with Chattar Singh prior to the incident and he had only seen Chattar Singh while he was getting treatment in BJRM Hospital. He has deposed that SI Dalbir Singh had not reached in the hospital in his presence nor SI Dalbir Singh recorded statement of Chattar Singh in his presence. He has testified that Arun Kumar was his friend since school times and was also his neighbourer. He had not saved Chattar Singh while he was being taken by three to four persons out of 2025 persons, he was saving Arun Kumar. He has deposed that Arun Kumar and Chattar Singh were at a distance of 1520 paces away from each other and his statement was recorded on the same day. He is not aware when the police of Police Station Alipur arrested Chattar Singh, father of Arun Kumar. According to him, he went to police station on the next day to meet Chattar Singh and he found Arun Kumar, Chattar Singh wife of Chattar Singh present in police station Alipur on 17.04.05 at around 11.30 AM. St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 14 The witness has testified that he used to visit at the house of his friend Arun frequently. He has denied the suggestion that Arun and his family members used to harass and gave beatings to Poonam for demand of dowry or that due to this reason Poonam committed suicide or that he has seen the accused for the first time in court or that he had not seen them in the hospital. He has deposed that he only came to know the names of Satish and Ashok Kumar, elder brother of Poonam and Pardeep, the cousin/ neighbour of Poonam, (which relation he do is not aware) later on being told by the police, but he had already seen them at the time of incident. The witness has denied the suggestion that accused persons present in court were not amongst those 2025 persons who gave beatings to the complainant and his son.
Medical Evidence:
PW2 Dr. Sanjay Kumar has deposed on behalf of Dr. Sanjay and has identified the signatures of Dr. Sanjay on the ME No. 21236 of Chattar Singh which is Ex.PW2/A, ME No. 21245 of Arun Kumar which is Ex.PW2/B and ME No. 21239 of Jag Parvesh which is Ex.PW2/C. According to him the patients were fit for statements and Chattar Singh was having simple sharp injury and Arun Kumar was having Simple Blunt injury. He has further deposed that the injured Chattar Singh was having injuries on chest, partial region St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 15 and hypochondrium on right side i.e. below coastal region on the right side. He has not been cross examined on behalf of the accused and his testimony has gone uncontroverted Police officials:
PW1 HC Kishori Lal has deposed that on 16.4.2005 he was posted at Police Station Jahangirpuri as Duty Officer from 4 PM to 12 night and on that day at about 7.55 PM, he received a rukka from Ct. Ravinder sent by ASI Dev Karan on the basis of which he recorded the present FIR copy of which is Ex.PW1/A. He has also proved having made endorsement on the rukka which is Ex.PW1/B. In his cross examination by Ld. defence counsel the witness has stated that when he received the rukka, the signature of the complainant was present on the same. According to him, he did not obtain permission of SHO before recording the FIR.
PW7 ASI Dev Karan has deposed that on 16.04.05 he was posted as ASI in Police Station Jahangirpuri and on that day he received DD No. 54B, copy of which is Ex.PW7/A and thereafter he along with Ct. Ravinder reached BJRM Hospital from where he collected the MLC of Chattar Singh, Arun Kumar and Jag Parvesh. He has proved having recorded the statement of Chattar Singh and attested his signature at point X. The witness has also proved having prepared the rukka which is Ex.PW7/B which he handed St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 16 over to Ct. Ravinder for getting the FIR registered. He has also deposed that Ct. Ravinder came back at the spot and handed over to him the copy of FIR and original rukka. According to him, HC Vijay handed over to him one blood stained shirt of Chattar Singh which was in a pullanda sealed with the seal of BJRM along with sample seal and seized vide memo Ex.PW3/A. The witness has also testified that accused Satish, Ashok and Pardeep who were present in the hospital were apprehended at the instance of Chattar Singh who were interrogated and arrested vide memos Ex.PW7/D to Ex.PW7/F and their personal search was conducted vide memos Ex.PW7/G to Ex.PW7/J. According to him, thereafter the accused Pardeep produced one rapi from the nali (drain) in the hospital with which he had attacked on the complainant which rapi was produced before the doctor who had opined that injuries on the MLC of Chattar Singh could be possible by that rapi /weapon after which the said rapi was put up into pullanda and sealed with the seal of BJRM and seized the same vide memo Ex.PW5/B. He has also deposed that the accused were released on bail and he recorded the statements of witnesses. The witness has also proved that after completing the investigation, he prepared the challan and filed in the court. He has correctly identified all three accused in the court and the case property i.e. the rapi which is Ex.P2.
St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 17
In his cross examination this witness has deposed that SI Dalbir and Ct. Prem Pal from Police Station Ali Pur did not meet him in the hospital. He has further deposed that Chattar Singh did not tell him that while his statement was being recorded by SI Dalbir of PS Alipur, 40/45 persons reached in the hospital, they started beating him and after seeing the incident SI Dalbir along with Ct.Prem Pal ran away from the spot. According to him, Chattar Singh was found admitted in the emergency was of BJRM hospital and prior to recording his statement, he had obtained the permission from the doctor on duty. He does not remember whether he had made an endorsement to the effect that the doctor had opined fit for statement or not but states that he had certainly taken permission from the doctor to this extent on the ME itself. After seeing the endorsement made on the rukka i.e. Statement of Chattar Singh the witness has deposed that there was no mention either of this declaration of fitness or permission for recording his statement. He is not aware whether Chattar Singh was involved in some other case. According to him, he reached in the hospital at about 5.45 PM and recorded the statement of Chattar Singh at about 6.45 PM. He has denied the suggestion that he joined hands with Chattar Singh to help in the registration of the present case and the present case was registered after the registration of FIR No. 143/05 U/s 304B/498A/34 IPC PS Alipur. The witness has testified that Chattar St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 18 Singh told him that so many persons came in a tempo in the hospital and has denied the suggestion that he in collusion with Chattar Singh fabricated his statement or that the accused were not found present in this hospital. According to the witness, no independent public person was joined either from the hospital staff or any of the patient. He has denied the suggestion that Pardeep did not make any disclosure statement or that he obtained signatures on the papers forcibly and fabricated and disclosure statement or that no recovery of rapi was effected at the instance of accused Pardeep.
PW8 Retd. SI Dharampal has deposed that on 18.09.05 he was posted at police station Jahangirpuri as Sub Inspector. He has testified that the charge sheet of this case had already been filed by ASI Dev Karan but Ld. MM has not taken the cognizance under Section 323/341/34 and further directed that the Section 307 IPC was attracted in this case therefore directed for further investigations. According to him, the further investigation of this case was handed over to him and he received the case file from the MHC(R) and perused the same. He has deposed that he interrogated the eye witness Jag Parvesh and recorded his statement under Section 161 Cr.P.C. and the accused persons namely Pardeep Kumar, Satish and Ashok Kumar were formally rearrested as they were on anticipatory bail and prepared the charge sheet under St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 19 Section 307/323/341/34 IPC and submitted the same before the Ld. MM.
In his crossexamination by the Ld. Defence Counsel, the witness has deposed that except supplementary statement of eye witness, no other evidence was available to add or found under Section 307 IPC. He has further deposed that he has filed the charge sheet under Section 307 IPC only on the basis of the supplementary statement of the injured and added section 307 IPC as it was directed by the Ld. MM and after adding section 307 of IPC, he has filed the charge sheet under Section 307 IPC in compliance of the direction of Ld. MM. He has denied the suggestion that the injured had not given any supplementary statement and fabricated the supplementary statement only to file the challan under Section 307 IPC.
PW9 Ct. Ravinder Singh has deposed that on 16.04.05, he was posted at police station Jahangir Puri and on that day he along with Investigating Officer ASI Dev Karan Singh reached at BJRM hospital at about 5:35 PM on the receipt of DD No.54 B. According to him, the Investigating Officer collected the ME sheet of three persons namely Pradeep, Ashok and Satish and recorded their statements and thereafter the Investigating Officer prepared the rukka and sent the same through him to the police station for registration of the case. The witness has testified that he St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 20 brought the copy of FIR and original rukka in the hospital and handed over to the Investigating Officer. According to him, the accused persons were arrested in this case vide memos Ex.PW7/D to Ex. PW7/F and their personal search was conducted vide memos Ex.PW7/G to Ex.PW7/J. In his crossexamination by the defence counsel, the witness has denied that he did not accompany the Investigating Officer in the hospital and the Investigating Officer did not handed over him the rukka as stated by him in his examination in chief and he had not got the case registered as deposed by him in the examination in chief. He has further denied that he did not bring the rukka along with the copy of the FIR and handed over to the Investigating Officer.
Statement of the accused/ defence evidence:
After completion of prosecution evidence, the statements of the accused were recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to the accused which they have denied. According to him, they are innocent and have been falsely implicated in the present case. The accused Pradeep has denied that any rapi was got recovered by him. They have stated that the present case was registered only to pressurize them and is a counter blast to the FIR No. 143/04 under Section 498A/304B/34 St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 21 Indian Penal Code. However, the accused have not examined any witness in their defence.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Counsel appearing on behalf of the accused. I have also gone through the testimonies of the various witnesses examined by the prosecution and the material on record.
Identity of the accused:
In so far as the identity of the accused are concerned, the same is not disputed. The complainant and the accused are previously known to each other being close relatives. The accused Ashok Kumar and Satish Kumar are real brothers of the deceased Poonam the wife of injured Arun and daughter in law of injured Chattar Singh. The accused Pradeep Kumar is the cousin brother of Ashok Kumar and Satish Kumar. They have also been duly identified by the injured and the eye witness in the court. Allegations against the accused:
Smt. Poonam daughter of Maan Singh i.e. the sister of the accused was married to injured Arun Kumar S/o Chattar Singh. As per the allegation, she had died unnatural death within seven St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 22 years of marriage and a case under Section 498A/304B/34 IPC vide FIR No. 143/05 was registered against her husband and in laws including Chattar Singh. According to the complainant Chattar Singh, Poonam had suffered food poisoning and thereafter Arun Kumar rushed her to BJRM Hospital where she was declared brought dead by the doctors. On this Arun Kumar and Chattar Singh informed the family of the deceased about her death on which Ashok Kumar, Satish Kumar and Pradeep Kumar who are the brothers of the deceased came to the hospital and on reaching the hospital after seeing the condition of the deceased they started assaulting the husband of the deceased namely Arun Kumar and father in law Chattar Singh. As per allegations, as many as 40 - 45 persons had collected at the spot including Maan Singh - father of the deceased, Raj Singh and Umed Singh but the police have only apprehended Satish Kumar, Ashok Kumar and Pradeep Kumar.
HC Vijay Kumar (PW3) who was posted at BJRM Hospital is an eye witness to the incident who has deposed that on 16.4.2005 while he was deputed at Duty Head Constable at BJRM Hospital from 8:00 am to 9:00 PM, at about 5:30 PM he heard loud noise outside the Casualty and found that one person was being caught hold by two persons and the third person was given beatings to him with Rapi (instrument used for cutting of leather). According to him, he saved the said person with the help of public persons and St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 23 later he came to know that the person who was given beatings was Chattar Singh, the two persons who had caught hold of Chattar Singh were Satish and Ashok and the third person who was giving beatings to Chattar Singh with Rapi was Pradeep Kumar. He has duly identified all the three accused in the court.
Similarly, PW4 Arun Kumar the husband of the deceased has deposed that on the date of incident he had taken his wife Poonam to BJRM Hospital since according to him, she had suffered food poison and after being admitted in the hospital she was given treatment till 3:30 PM and in the meanwhile his cousin Jag Pravesh and his father Chattar Singh came to the hospital at about 4:00 PM and when they inquired from the doctor, the doctor declared his wife to be dead on which he informed his father about the same and they started weeping. He told his father to give information to the parents of the deceased on which his father telephoned his in laws and at around 5:30 PM at about 25 30 persons from his inlaws house came to the hospital and started giving beatings to his father Chattar Singh. According to him, the accused Ashok and Satish caught hold his father Chattar Singh and accused Pradeep gave blow with some sharp edged weapon on his father Chattar Singh as a result of which his father received injuries on head, back and stomach. Arun Kumar has testified that when he and Jag Pravesh tried to save his father, the other relatives of St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 24 Poonam chased them on which they went inside the hospital to save their lives and later he came to know that his father was in the hospital in a serious condition. PW5 Chattar Singh the injured has similarly deposed. According to him, on 16.4.2005 he had gone to Jati Kalan, Haryana in connection with some engagement of his niece and when he came back, his wife informed him that Poonam @ Sneh the wife of Arun Kumar had vomited and was taken to Hospital. At around 2:00 PM Arun called up in the house of their neighbour Dhanno and he attended the call of Arun who informed him that Poonam was unwell and was admitted in the hospital. According to Chattar Singh, he went to BJRM Hospital and reached there at about 4:00 PM where he found that his son Arun was sitting in the parking and was weeping and told him that Poonam had expired. Pursuant to the aforesaid he made a telephone call to the parental house of Poonam which was attended by Satish and at about 5:15 to 5:30 PM SI Dalbir Singh along with Ct. Prem Pal came to BJRM Hospital and started recording their statements when about 40 - 50 relatives of the deceased came to the hospital and all of them started beating him. He has deposed that one of the assailant was under the influence of liquor and it was Pradeep who used the weapon and gave a blow with rapi in his stomach after which Ashok took that Rapi and gave a blow with it on his head and back of waist on which he became unconscious. According to him, later at about St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 25 7:45 PM he regained consciousness and found his shirt stained with blood on which he went inside the Emergency room of the hospital where Raj Singh - uncle/ chacha of deceased Poonam also gave beating to him and Satish came inside and asked Raj Singh to leave him as they had done whatever they intended for. According to Chattar Singh, it was the hospital staff who took him to the dressing room where he was given stitches on his head, back of the waist and stomach. He has proved that his blood stained shirt was seized at the hospital vide seizure memo Ex.PW3/A. He has admitted that he was arrested in a case for the dowry death of his daughter in law Poonam.
Both Arun Kumar and Chattar Singh have been examined at length and have denied the suggestion that they had falsely implicated the accused only to frame them in a counter case as they themselves were involved in killing of Poonam. It is argued by the Ld. Counsel appearing on behalf of the accused that the present case is a counter blast as a dowry death case was lodged on the statement of Maan Singh wherein both Chattar Singh and Arun are accused and therefore, the accused in the present case are liable to be acquitted.
I have considered the submissions made before me. Arun Kumar and Chattar Singh have been most consistent in so far St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 26 as the allegations made against Pradeep to the extent that he was the person who had used Rapi upon Chattar Singh and also in so far as the allegations against Ashok Kumar and Satish Kumar that they were the persons who had caught hold of Chattar Singh. Chattar Singh (PW5) has improved upon his statement when he stated that Ashok took the Rapi from Pradeep and gave a blow with it on his head and back of waist, whereas on the other hand HC Vijay Kumar (PW3) who is the eye witness has stated that it was only Pradeep Kumar who had hit Chattar Singh with the help of Rapi and therefore, the statement of Chattar Singh (PW5) to that extent is required to be ignored. Hence, the allegations against Ashok, Pradeep and Satish stand established as aforesaid. Medical Evidence:
The Medical Examination reports of the injured which are Ex.PW2/A and Ex.PW2/B have been duly proved by Dr. Sanjay Kumar (PW2). It is evident that in so far as Arun Kumar is concerned, the only injury received by him was abrasion over the left ear pinna which was opined to be simple and blunt. Further, in so far as Chattar Singh is concerned, he had received the following injures:
1. CLW over right hypochondria region (4 x 1 cm)
2. CLW over left back side of chest (4 x 1 cm) St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 27
3. CLW over parital region (4 x 1 cm) All the aforesaid injures were opined to be Simple and Sharp showing that they had been given by a Rapi. The ME shows that there was no bone injury. Therefore, I hold that the injuries received by both the injured were simple in nature.
Recovery of the weapon of offence i.e. Rapi:
The case of the prosecution is that after the arrest of the accused Pradeep her pursuant to his disclosure, had got recovered the Rapi with which he had inflicted injuries upon Chattar Singh, seizure of which Rapi has been duly proved by PW5 as Ex.PW5/B. The said Rapi has been duly identified by the injured. However, it is evident from the record that at the time of the incident the said Rapi was wrapped with a cloth and it was got recovered by Pradeep from the nali/ drain in front of the Emergency Ward of BJRM Hospital front portion of which Rapi was sharp and was having a wooden handle. I may observe that had the injury being given on the head of the injured by sharp portion it would have been fatal for him but it appears that the injured had been hit with the Rapi in the same condition i.e. with a cloth wrapped over it due to which reason Chattar Singh sustained minimum injuries. The intention under no circumstances would be to cause death nor the use of said weapon in the said form would cause any grievous injury or death to Chattar St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 28 Singh. Therefore, under these circumstances, the ingredients of Section 307 Indian Penal Code do not stand satisfied. However, I hold that the recovery of the Rapi stands established. Motive:
According to the prosecution, the accused are the brothers of the deceased and their intention was to seek revenge of the death of their sister who as per the allegations was being harassed for demand of dowry. The accused being aggrieved on the death of their sister were agitated and in a fit of rage inflicted injuries upon Arun Kumar and Chattar Singh. In his regard I may observe that the testimony of PW3 HC Vijay does not show the presence of large number of persons rather, he had only seen the accused assaulting Chattar Singh and it appears that the injured Chattar Singh had deliberately involved the entire family of the deceased in the alleged incident including the father and the uncle as a counter blast to the earlier FIR connected with the death of his daughterinlaw Poonam. The injuries received by Chattar Singh and Arun Kumar were simple in nature. Where there was a history of demand of dowry and harassment to the deceased it was only natural for the brothers of the deceased and the death of Poonam provoked the accused. I hereby hold that the prosecution has failed to prove that the motive for inflicting injuries was to seek revenge St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 29 and the intention of the accused was to cause murder of Arun Kumar and Chattar Singh which aspect does not stand established. Rather, it is evident that the incident had occurred on account of sudden provocation due to the death of Poonam who was the wife of Arun Kumar and daughter in law of Chattar Singh.
Common intention:
The case of the prosecution is that all the accused in furtherance of their common intention wrongfully restrained Chattar Singh and caused injuries upon him and Arun Kumar. In this regard, I may observe that Section 34 Indian Penal Code has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 30 direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 31 prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.
Applying the settled principles of law to the facts of the present case it is evident that the allegations against Ashok Kumar and Satish Kumar are that they had caught hold the hands of Chattar Singh whereas the accused Pradeep had given Rapi blows on his head, back of chest and stomach. Keeping in view the nature of injuries received by Chattar Singh and the place where the injuries were inflicted and the acts attributed to the accused, the common intention of the accused is borne out.
Wrongful restrain:
The case of the prosecution is that the injured Chtar Singhw as wrongfully restrained by the accused persons in BJRM Hospital and pursuant to the same caused injuries upon him. In this regard the testimony of Chattar Singh (PW5) which finds due corroboration from the testimony of Arun Kumar (PW4) and HC Vijay (PW3) is very specific and clear. It is evident that while St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 32 Chattar Singh was present in the hospital, the accused wrongfully restrained Chattar Singh while Satish and Ashok caught hold of Chattar Singh and accused Pradeep gave Rapi blows upon him. HC Vijay (PW3) was present in the Hospital on duty and has witnessed the entire incident and supported this version given by Chattar Singh and Arun Kumar. Therefore, I hereby hold that the aspect of causing wrongful restrain by the accused stands established. FINAL FINDINGS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 33
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the settled principles of law to the facts of the present case, it is evident that the identity of the accused stands established. The accused Ashok and Satish are the real brothers of the deceased Poonam the wife of injured Arun Kumar and the accused Pradeep is the cousin brother of deceased Poonam. It also stands established that on 16.4.2005 the injured Arun Kumar rushed Smt. Poonam to BJRM Hospital where she was got admitted and later she expired. It further stands established that Chattar Singh informed the parents of the deceased on telephone on which the accused had come to the hospital. It has also been established that the accused Satish Kumar, Ashok Kumar and Pradeep Kumar wrongly restrained Chattar Singh and while the accused Satish St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 34 Kumar and Ashok Kumar caught hold of Chattar Singh, the accused Pradeep Kumar inflicted injuries on the person of Chattar Singh with the help of a Rapi (a leather cutting instrument). The recovery of the Rapi at the instance of accused Pradeep Kumar in front of the nali/ drain of Emergency Ward of BJRM Hospital also stands established. It also stands established that injures received by the injured were simple in nature but the manner in which the injuries were inflicted, shows that it was wrapped with a cloth at the time it was recovered and it is evident that the injured had been hit with the Rapi in the same condition i.e. with a cloth wrapped over it only due to which reason Chattar Singh sustained minimum injuries.
The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MEs, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.
St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 35
However, I hereby hold that the intention was not to cause death nor the use of said weapon in the said form would cause any grievous injury or death to Chattar Singh. The prosecution has failed to prove that the motive for inflicting injuries was to seek revenge and the intention of the accused was to cause murder of Arun Kumar and Chattar Singh which aspect does not stand established. Rather, it is evident that the incident had occurred on account of sudden provocation on account of the death of Poonam who was the wife of Arun Kumar and the daughter in law of Chattar Singh.
Therefore, I hold that the ingredients of Section 307 Indian Penal Code do not stand satisfied for which the accused Pradeep Kumar, Ashok Kumar and Satish Kumar are hereby acquitted and they are held guilty of the lesser offence under Section 323/341/34 Indian Penal Code for which they are accordingly convicted.
Ld. Counsel for the convicts requests that arguments on sentence may be heard today itself as he is ready with the same. On request of the counsel, be listed for arguments on the point of sentence at 2:00 PM.
Announced in the open court (Dr. KAMINI LAU) Dated: 16.7.2011 ASJII(NW)/ ROHINI St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 36 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII(NW): ROHINI COURTS: DELHI Session Case: 636/06 Unique Case ID No. 02404R0234732006 State Vs. (1) Pradeep Kumar S/o Sh. Umed Singh R/o House No. 46, Village Pooth Kalan, Delhi (Convicted) (2) Ashok Kumar S/o Sh. Man Singh R/o House No. 47, Village Pooth Kalan, Delhi (Convicted) (3) Satish Kumar S/o Sh. Man Singh R/o House No. 47, Village Pooth Kalan, Delhi (Convicted) FIR No.: 298/2005 Police Station: Jahangir Puri Under Section: 307/323/341/34 IPC Date of Conviction: 16.7.2011 Arguments heard on: 16.7.2011 Date of sentence: 16.7.2011 St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 37 APPEARANCE:
Present: Sh. Taufiq Ahmed, Addl. PP for the State.
All the three convicts in person with Sh. Tarun Gehlot Advocate.
ORDER ON SENTENCE:
Vide my separate detailed judgment of even date, all the three convicts namely Pradeep Kumar, Ashok Kumar and Satish Kumar have been held guilty of the offence under Section 323/341/34 Indian Penal Code. However, they have been acquitted of the charge under Section 307 Indian Penal Code.
As per the allegations on 16.4.2005 at 5:30 pm at BJRM Hospital, Jahangir Puri, all the accused namely Pradeep Kumar, Ashok Kumar and Satish Kumar in furtherance of their common intention caused injuries on the head of Chatar Singh and Arun with the help of Raapi (leather curring instrument) with such intention or knowledge and under such circumstances that if by the said act death is caused, they would be guilty of murder. It was also alleged that all the accused in furtherance of their common intention wrongfully restraining Chatar Singh. However, on the basis of the testimonies of the eye witnesses examined by the prosecution and also in view of the medical evidence on record, all the accused Pradeep Kumar, Ashok Kumar and Satish Kumar have been acquitted of the charge St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 38 under Section 307 Indian Penal Code but they have been held guilty of the offence under Section 323/341/34 Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. The convict Pradeep Kumar is aged about 39 years having a family comprising of aged widow mother, wife and two sons. He is 12 th class pass and is a labour by profession. He is a first time offender and is not involved in any other case. The convict Ashok Kumar is aged about 48 years having a family comprising of aged father, wife, one son and three daughters. He is 9th class pass and is a labour by profession. He is a first time offender and is not involved in any other case. The convict Satish Kumar is aged about 45 years having a family comprising of aged father, wife, one son and one daughter. He is 12th class pass and is a labour by profession. He is a first time offender and is not involved in any other case.
Ld. counsel appearing on behalf of the convicts has argued that the convicts Satish Kumar and Ashok Kumar are real brothers and the convict Pradeep is their cousin brother. He has also argued that all the convicts are first time offenders and are not involved in any other case. He submits that the offence was not premeditated but was an outcome of an emotional outburst when the convicts saw the body of the deceased. He requests that a lenient St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 39 view be taken against the convicts. The Ld. Addl. PP for the State on the other hands has prayed for a strict punishment keeping in view the allegations involved.
I have considered the rival contentions. Keeping in view the fact that the convicts are not criminals and have been involved in a criminal case for the first time i.e. in the present case which was a result of an emotional outburst when they saw the body of their deceased sister in the hospital, any harsh view would be prejudicial to their future and family and will take away the chances of their reformation. Under the given circumstances, the ends of justice would be met in case if the benefit of the Probation of Offenders Act is given to the convicts.
I accordingly direct that the convicts Pradeep Kumar, Ashok Kumar and Satish Kumar be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 for a period of One Year with supervision, on their furnishing a personal bond for a sum of Rs.15,000/ each with one local surety of the like amount and to appear and receive sentence when called upon during such period and in the meantime to keep the peace and be of good behaviour. In case of any default or repetition of offence, the convicts shall undergo Simple Imprisonment for a period of one year each. Further, the convicts shall also pay a fine to the tune of Rs. St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 40 1,500/ each. The entire fine amount of Rs.4,500/ (Rs.1,500/ from each of the convicts) shall be paid to the injured Chattar Singh as compensation under Section 357 Code of Criminal Procedure.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 16.7.2011 ASJ (NW)II: ROHINI
St. Vs. Pradeep Kumar Etc., FIR No. 298/05, PS Jahangir Puri Page No. 41