Delhi District Court
Fir No. 04/2009; State vs . Azad Kumar Mishra Page 1 Of 23 on 3 August, 2011
IN THE COURT OF SH. RAVINDER DUDEJA: ADDL SESSIONS
JUDGE03: NW : ROHINI : DELHI
Sessions Case No. 153/09
FIR No. 04/09
PS: Adarsh Nagar
U/s: 304 IPC
STATE
Versus
AZAD KUMAR MISHRA
s/o Sh. Ram Sewak
r/o A9/226, Brijpuri,
PS Gokulpuri, Delhi
Date of Institution: 23032009
Date of arguments: 19072011
Date of judgement: 02082011
J U D G M E N T
1. The Prosecution case is that on 04012009 at about 7:10 pm a wireless information was received at PS Adarsh Nagar regarding an accident at Ring Road, opposite Azadpur bus terminal, near Shastri Market. The information was recorded vide DD no. 20A. On receipt of this information, ASI Dalbir Singh along with Ct. Sanjeev Kumar FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 1 of 23 and Ct. Ved Prakash reached the place of accident where they found a blue line bus bearing no. DL1PB3232 of route no. 982 standing. The body of a person, who was run over under the left rear wheel of the bus, was lying. The body was identified to be that of Roop Chand s/o Nanak Chand. One eyewitness Gurmeet Singh was also present at the spot. His statement was recorded wherein he stated that at about 3:30 pm he had gone to DPark, Model TownII for roaming where his friend Roop Chand @ Roopa and Azad Kumar @ Lile met him. They sat together in the park and talked with each other. At about 6 pm, they went at a liquor theka, near Akash cinema. Roop Chand purchased a liquor bottle. All three of them took the liquor. After taking liquor, Azad Kumar @ Lile told them that he was to go to Bhajanpura and requested them to drop him at the bus stand. From there, they reached at the road, GTK Road, in front of Azadpur Shastri Market. An altercation took place between Lile and Roop Chand. Lile pushed Roop Chand. As a result of the push given by Lile, Roop Chand came under the rear wheel of the blue line bus and died at the spot itself. On seeing this, Lile got perplexed and tried to run FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 2 of 23 away. He was chased by him and handed over to the police. He further stated that in this process, he and Lile both received injuries. FIR was registered u/s 304 IPC. Crime Team was called at the spot. The spot was got photographed. The body was sent to BJRM hospital Mortuary for postmortem. Accused Azad Kumar @ Lile was arrested. After postmortem, the body was handed over to relatives of the deceased. Mechanical inspection of the bus was got conducted. On completion of investigation, chargesheet was filed u/s 304 IPC against accused.
2. After compliance of section 207 Cr. P.C., case was committed to Session Court. Charge u/s 304 IPC was framed against the accused to which he pleaded not guilty.
3. In order to prove its case, Prosecution examined 17 witnesses. PW1 is HC Raghubir Singh. He had recorded DD no. 20A Ex. PW1/A and the FIR Ex. PW1/B. PW2 is Gurmeet Singh. He is the complainant. He proved the statement given to the police as Ex. PW2/A. He proved the arrest memo and personal search memo of FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 3 of 23 accused as Ex. PW2/B and PW2/C respectively. He is also witness to the seizure memo of bus.
PW3 is Satyawan, driver of the blue line bus no. DL1PB3232 at route no. 982. He deposed that on 14012009 at about 7 pm when he reached at G. T. Road, near Azadpur, the speed of the bus was slow because of Metro work going on there. Suddenly, the Conductor Om Prakash gave signal to stop the bus. He immediately applied the brakes. He and the Conductor got down from the bus and saw that body of a person was lying near the left rear wheel of the bus. The head of the body was lying crushed. He deposed that the Conductor told him that someone had pushed the victim due to which he came under the wheel.
PW4 is ASI Dalbir Singh. He is the first IO. He had recorded the statement of Gurmeet Singh at the spot, prepared the rukka Ex. PW4/A and sent the same at PS through Ct. Ved Prakash for registration of FIR. He stated that Gurmeet Singh and accused Azad Kumar Mishra were having injuries on their person and therefore they were sent to BJRM hospital with Ct. Sanjeev. He got the spot FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 4 of 23 photographed from a private photographer. He further deposed that SI Krishan Lal, who came at the spot after registration of FIR, prepared the site plan on the pointing out of Gurmeet Singh.
PW5 is Dr. K. Goel from BJRM hospital. He had conducted postmortem of the deceased. His report is Ex. PW5/A. PW6 is Vinod Kumar, brother of deceased Roop Chand. He identified the body of his brother at BRJM Hospital mortuary.
PW7 is SI Manohar Lal. He had prepared the scaled site plan Ex. PW7/A on the pointing out of Gurmeet Singh.
PW8 is Sanjay, private photographer. He took four photographs from his digital camera. He proved the photographs as Ex. PW8/P1 to PW8/P4.
PW9 is Om Prakash. He is the Conductor of the bus. He deposed that due to Metro construction work, the traffic was moving slow at Azadpur. At about 7 pm, they took passengers from Azadpur bus stand and the bus was moving slowly due to traffic. He was sitting at the Conductor seat and looking outside. He saw three persons walking on FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 5 of 23 the left side of the road. Suddenly, one of them pushed the other person due to which he fell down and came under the rear left wheel of the bus. He immediately gave whistle and got the bus stopped. On getting down, he found that person who came under the wheel had already expired. He further deposed that person, who had given the push, had run away and was chased by the third person. After 10--15 minutes, the third person, who chased the second person, brought him at the spot and his name came to be known as Azad Kumar Mishra.
PW10 is Nand Kishore, brother of deceased. He had also identified the body of his brother. His statement with regard to identification of body is Ex. PW10/A. He stated that body, after postmortem, was handed over to them vide receipt Ex. PW10/B. PW11 is HC Ved Prakash. He is the witness of investigation who accompanied ASI Dalbir Singh to the spot. He had taken the rukka from the spot to the PS for registration of FIR.
PW12 is HC Prahlad Singh, then MHCM. He proved the relevant entries of Register no. 19 as Ex. PW12/A and FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 6 of 23 PW12/B. PW13 is Dr. Neeraj Chaudhary from BJRM hospital. He proved the MEs of Gurmeet Singh and accused as Ex. PW13/A and PW13/B respectively.
PW14 is Ct. Baikunth Shukla. He had deposited three sealed pullandas at FSL Rohini.
PW15 is SI Kishan Lal. He is the second IO who took over investigation after the registration of FIR. During investigation, he sent the body to BJRM Mortuary, seized the bus, arrested the accused, and conducted the personal search. He recorded statements of relatives of deceased regarding identification of body, prepared the Inquest documents Ex. PW15/A and after postmortem, handed over the body to the relatives. He seized the blood sample and a pullanda containing the clothes of deceased vide memo Ex. PW15/B. The blood sample of the deceased, in a sealed glass bottle handed over by the doctor, was seized vide memo Ex. PW15/C. He filed application in the court for getting the statement of Gurmeet Singh u/s 164 Cr. P. C. recorded. He had also got conducted mechanical inspection of the bus, got prepared the scaled site plan and sent the FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 7 of 23 case property to FSL. After collecting the FSL result Ex. PW15/E and PW15/F, the same was filed in court. He had also prepared site plan Ex. PW15/H on the pointing out of Gurmeet Singh.
PW16 is Ms. Kiran Gupta, MM Mahila Court. She had recorded the statement of Gurmeet Singh u/s 164 Cr. P. C. which has been proved as Ex. PW16/B. PW17 is Retd. ASI Devender Kumar. He had conducted mechanical inspection of the bus and proved the report as Ex. PW17/A.
4. Statement of accused was recorded u/s 313 Cr.
P. C. wherein he stated that he is innocent and has been falsely implicated in this case.
5. In his defence, accused examined DW1 Sukhi Ram. He deposed that on 04012009, he had gone to Azadpur Mandi to purchase vegetables. At about 7 pm, while he was returning from Mandi, he saw that a person, who was under the influence of liquor and was not walking properly, met with an accident with a private bus at route no. FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 8 of 23 982 due to which he died. He with the help of public caught the bus driver and handed him to the police.
6. Arguments have been heard from Ld. APP. Ld. Defence counsel has preferred to file written submissions. The defence of the accused is that it was an accidental death and that deceased was in a state of intoxication and while in such a condition, he accidentally came under the wheel of the bus and died. It has also been submitted that accident took place due to rash and negligence driving by the Bus Driver but the police gave him clean chit and falsely implicated the accused. Ld. APP however has argued that PW2 Gurmeet Singh and PW9 Om Prakash who are the eyewitnesses of the occurrence have clearly stated that it was the accused who had pushed the victim due to which he came under the wheel of the bus and died.
7. PW2 Gurmeet Singh deposed that on 04012009 at about 3 pm his friend Roop Chand @ Roopa and Azad Kumar @ Lile met him in DPark, Model TownII. They sat in the park and talked with each other in the park. FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 9 of 23 At about 5 pm they went towards the Akash Cinema where Roop Chand purchased a liquor bottle from a liquor shop. All three of them consumed liquor at the back of the liquor shop. After consuming the liquor, the accused told them that he had to go to Bhajanpura and requested him to see him off at the bus stand. Roop Chand also accompanied them saying that he would take the bus for Model Town from the bus stand. At about 7:15 pm, when they reached G. T. Road, in front of Azadpur Shastri Park Market, a verbal altercation took place between Roop Chand and accused. Suddenly, accused pushed Roop Chand due to which Roop Chand fell down and came under the rear wheel of blue line bus coming from behind which was on route no. 982. Roop Chand died at the spot itself. On seeing this, accused became perplexed and started running away. He chased him and overpowered him near Akash Cinema but in the process of apprehending him, he and accused sustained minor injuries. Accused was then handed over to police. He further deposed that he and accused were sent to BJRM hospital for medical examination. In crossexamination, he denied that some other person had pushed Roop Chand. FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 10 of 23 He denied that accused was not present with them. He denied that he himself was not present at the time of accident.
8. Barring few suggestions, there is hardly anything in the crossexamination of Gurmeet Singh. He has withstood the test of crossexamination. Nothing has been brought out in the testimony of Gurmeet Singh which could shake his credibility. The testimony of Gurmeet Singh finds corroboration from the testimony of Bus Conductor Om Prakash (PW9). In the crossexamination of Om Prakash, the defence itself suggested that place of incident was congested due to traffic. Thus, the possibility that bus was at a fast speed is ruled out. In crossexamination, Om Prakash stated that accused pushed the deceased when half of the bus had already passed him. Thus, the driver of the bus cannot be attributed with any negligence on his part for causing the accident. Om Prakash denied the suggestion that bus was at a fast speed. He denied that he was read over his statement outside the court by police officials. He denied that he had not seen the accused giving FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 11 of 23 push to the deceased. He denied that deceased was walking in an inebriated condition. According to him, the deceased was walking properly. Nothing has been brought out in the crossexamination of PW9 Om Prakash which can help the accused in any manner.
9. It has come in evidence that Gurmeet Singh and accused were having minor injuries and were therefore got medically examined from BJRM hospital. The medical examination report of accused is Ex. PW13/B which proves lacerated wound over right side of his forehead. Ex. PW13/B also proves the smell of alcohol in the breath of accused. Accused has not explained as to how he received such an injury. Rather, the medical examination report of accused Ex. PW13/B as also the medical examination report of Gurmeet Singh Ex. PW13/A, which shows abrasions over his right hand, not only corroborate the testimony of Gurmeet Singh but also explain the presence of injuries on the person of accused.
10. I have carefully gone through the testimonies of FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 12 of 23 other witnesses as well and have no hesitation in holding that all the necessary documents prepared during investigation have been duly proved by the Prosecution. The defence has not been able to bring out any infirmity, much less a material one, in the investigation conducted in the present case. All the requisite documents have been duly proved. It also has been proved that accused was chased and apprehended by Gurmeet Singh and brought back at the spot and was handed over to police.
11. The defence' contention is to the effect that deceased was in an inebriated condition and accidentally came under the bus. In order to substantiate the defence version, the accused has examined DW1 Sukhi Ram who stated that he had seen a person, who was under the influence of liquor and was not walking properly, met with an accident with a private bus due to which he died. According to him, he with the help of public caught the bus driver and handed over to the police. But no suggestion was given to any of the Prosecution witnesses that Bus Driver was caught by the public and handed over to the police. It transpired during the FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 13 of 23 crossexamination of DW1 that he knew the accused as he was his neighbour and also knew his father who worked with him in a cloth mill. If at all Sukhi Ram knew that accused has been falsely implicated and that actual perpetrator was the driver of the bus, he should have brought such a fact of false implication to the notice of higher authorities. Rather, he chose to keep mum and never lodged any sort of complaint anywhere. He did not take any step at all and therefore, it becomes perceptible that defence has come up with a false story. After all, he knew the accused and his family and therefore his silence on the crucial aspect seems illogical and unnatural and thus makes the defence version improbable.
12. From the aforesaid discussion and from the testimonies of record, following facts stand duly proved by the Prosecution:
(i) On 04012009 Gurmeet Singh, Roop Chand and accused Azad Kumar took liquor together;
(ii) While they were going together towards the bus stand, a verbal altercation took place between accused and Roop FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 14 of 23 Chand;
(iii) Accused pushed Roop Chand due to which he fell down and came under the rear wheel of the bus and died at the spot itself.
13. Accused has been charged for causing culpable homicide not amounting to murder. Culpable homicide is defined in Section 299 IPC which reads as under: Culpable homicide: "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
14. This Section defines culpable homicide as the act of causing death:
(i) with the intention of causing death or;
(ii) with intention of causing such bodily injury as is likely to cause death or;
(iii) with knowledge that such act is likely to cause death.
The first and second Clause of Section refer to intention apart from knowledge and the third Clause refers to FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 15 of 23 knowledge apart from intention. It is to be seen whether the accused had caused the death of Roop Chand by doing an act with intention of causing death or with an intention of causing such bodily injury as was likely to cause death or whether he had the knowledge that his act was likely to result in the death of Roop Chand.
15. Undoubtedly, it is a case where a person has lost his life but still it is primary and paramount duty of the Prosecution to show and establish that such death is probable consequence of intentional act or that accused had the requisite knowledge that his act would result in death of victim. By intention, it is meant a normal and reasonable expectation of the consequences of such act. The intention has to be gathered or inferred from the act of the offender. Such intention has to be judged by the act and conduct of the accused or by his utterances, if any. Every act has a natural and probable consequence and it has to be seen as to what would have been the natural and probable consequence of the act of the accused. In the present case, the act of the accused is confined to giving push. The FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 16 of 23 deceased was under the influence of liquor, so was the accused. It has come in evidence that accused and the deceased were friends of each other and had chatted in the park and took liquor before this occurrence took place. There was no previous enmity or ill will between the two. It has come in evidence that only a verbal altercation took place while they were going towards the bus stand. What was the origin of verbal altercation is not known. Following court questions were put to PW Gurmeet Singh during his examination in court:
"Court question: Did you see the bus coming from behind prior to the giving of push by the accused? Ans: No. I saw the bus immediately after the victim was pushed and fell down, when he came under the wheel of the bus.
Court Question: Did the accused know that the bus was coming from behind and therefore deliberately pushed the victim?
Ans: No."
16. It is thus evident that accused had no intention to throw Roop Chand before the passing bus as he himself did not know that bus was coming from behind and therefore it was FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 17 of 23 not a deliberate act of pushing the deceased before the moving bus. Thus, in such a situation, it is virtually impossible to hold that accused had intention to cause death of Roop Chand or had the intention to cause such bodily injury as was likely to cause his death. His having the knowledge in this regard is absolutely ruled out. Thus the consequence of act of accused cannot be assumed to be death. In the case of Md. Isak Md. Vs. State of Maharastra AIR 1979 (SC) 1434, deceased was assaulted after sudden exchange of abuses. The Apex Court held that there was no evidence to gather intention to cause death and it was observed that intention was to cause grievous hurt and the offence fell u/s 325/34 IPC and not u/s 304 (1) IPC and conviction was altered accordingly. Following observations are noteworthy:
"The occurrence in the course of which deceased was assaulted took place suddenly and after hot exchange of abuses, which took place between the deceased and appellants. The appellants are said to have assaulted the deceased with sticks. There is no evidence to prove as to which of the appellants struck the fatal blow on the deceased. Having regard therefore to the circumstances of the present case and the nature and injuries sustained by FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 18 of 23 the appellants, we are unable to agree with High Court that case falls u/s 302 IPC. There is no evidence of any intention on the part of appellants either to cause death of the deceased or cause such injuries of which the appellants could have the knowledge that it was likely to cause death although it cannot be doubted that appellants had the intention to cause grievous hurt to deceased by the lathis. Thus, the offence falls u/s 325/34 IPC and not u/s 302 and 304 (1) IPC."
17. In the case of Afrahim Sheikh Vs. State of W.B. AIR 1964, SC 1263, it has been observed as under:
"The causing of death of a person by doing an act accompanied by intention in the two ways described in Section 299 or with knowledge that the act is likely to cause death also described there is thus distinguished from the cases of deaths resulting from accidents or rash and negligent act and those cases where death may result but the offence is of causing hurt either simple or grievous."
18. Judgement in the case of Jarnail Singh Vs. State of Punjab AIR 1982 SC 70 reads as under: "We are of the view that having regard to the circumstances in which the offence took place, it is not possible to convict the appellant Jarnail Singh of the offence u/s 302 r/w Section 34 IPC since there was no preconcert between Sarwan Singh and appellant nor a meeting of minds FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 19 of 23 between them before the offence took place. We, therefore, set aside the conviction of the appellants u/s 302 r/w 34 IPC and since he merely gave a takwa blow on the ear and caused simple injuries, we alter his conviction to one u/s 324 IPC. We are told that appellant has been engaged for 2½ years and we therefore reduce the sentence imposed upon him with already undergone by him and direct that he may be set at liberty forthwith."
19. In the case of Gulab Sheikh 1970, SCC (Crl) 532 (as found mentioned in Law of Crimes by Rattan Lal and Dheeraj Lal 26th Edition, page no. 1365) deceased was drunk and hurled abuses under the influence of liquor. Accused warned him not to do so but upon persistence of deceased in abusing him, accused gave blows to the deceased and pushed him down. Deceased died as a result of head injury received by him due to fall and it was held that accused could be convicted u/s 323 IPC.
20. The facts of the present case are quite similar to the facts of the case of Gulab Sheikh. Rather, the present case is on a better footing where pursuant to the verbal altercation, the accused who was under the influence of FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 20 of 23 alcohol, had only pushed Roop Chand but he fell down and came under the wheel of the bus.
21. Hence, in view of my aforesaid discussion, I come to the conclusion that intention of the accused at best was to inflict simple hurt by giving push to Roop Chand. There was neither intention to cause any death or bodily injuries as were likely to cause death nor he had any such guilty knowledge. I, therefore, hold the accused guilty only u/s 323 IPC and convict him accordingly.
(RAVINDER DUDEJA) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 02082011 FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 21 of 23 IN THE COURT OF SH. RAVINDER DUDEJA: ADDL SESSIONS JUDGE03: NW : ROHINI : DELHI Sessions Case No. 153/09 FIR No. 04/09 PS: Adarsh Nagar U/s: 304 IPC STATE Versus AZAD KUMAR MISHRA s/o Sh. Ram Sewak r/o A9/226, Brijpuri, PS Gokulpuri, Delhi Order on sentence
1. It has been submitted by Ld. Counsel of convict that convict is a young man aged about 32 years and has a widow mother to support. It is stated that he is the only bread earner of his family and remained in custody for about four months during investigation/ trial. Request has been made for taking a lenient view. Ld. APP has submitted that convict be sentenced with one year Rigorous Imprisonment along with compensation to the family members of victim.
2. Although the convict was charged u/s 304 IPC but has FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 22 of 23 been convicted only u/s 323 IPC which provides punishment upto a period of one year or with fine which may extend to Rs. 1,000/ or with both. The convict has been facing trial since last two years. He has remained in custody for a period of 3 months and 18 days. The present trend in the penology is that efforts should be made to bring about correction and reformation of the individual offender and not to resort to retributive justice. In my view, no purpose shall be served by sending the convict to jail wherein he may come in contact with hardened criminals. In my view, interest of justice would be sufficiently met if the convict is sentenced with imprisonment already undergone by him in custody during investigation/trial coupled with compensation of Rs. 10,000/ for the family of victim, in default of payment of which, he shall undergo one month SI. Copy of judgement and order on sentence be given to the convict free of cost.
(RAVINDER DUDEJA) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 03082011 FIR No. 04/2009; State Vs. Azad Kumar Mishra Page 23 of 23