Delhi District Court
State vs . Ram Kishan @ Vakil S/O Ram Karan on 12 September, 2012
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 64/11
Unique Case ID No.02405R0219522011.
State Vs. Ram Kishan @ Vakil s/o Ram Karan
R/o House No. C-228B, Gali No.2,
Nangli Sakrawati,
Ekta Marg, Najafgarh,
New Delhi.
Date of Institution/filing :17.06.2011
FIR No.117/11 dated 14.04.2011.
U/s. 308/304 IPC
P.S. Najafgarh.
Date of reserving judgment/Order :07.09.2012.
Date of pronouncement :12.09.2012.
JUDGMENT
1. The accused has been charge sheeted by the Police for having committed the offence punishable u/s 308/304 IPC. He is accused of having hit the deceased Vikas on his neck by cricket bat while playing cricket, which proved to be fatal and the deceased died of the same in the hospital.
2. As per the prosecution case, the information about the incident was first given to PS Ranhola. When SI Ajmer Singh of PS Ranhola reached the spot, he realised that it falls within the territorial jurisdiction of PS Najafgarh and accordingly passed on the information to PS Najafgarh on telephone which was recorded there as DD No. 21A to the effect that Vikas s/o Shyam Sunder r/o C-205, Nangli Vihar, Najafgarh has been hit by a bat on his head SC No.64/11. Page 1 of 11 and he has been got admitted in injured condition in Gandhi Nursing Home by his uncle. The copy of the DD was handed over to SI Ramdhan for suitable actin. SI Ramdhan alongwith constable Pawan Kumar reached the spot i.e. Chhath Puja Park, Nangli Vihar, New Delhi where he found SI Ajmer Singh of PS Ranhola present. SI Ajmer Singh handed over to him MLC No. 337/11 of injured Vikas and an application whereupon the doctor had declared the injured unfit for statement. SI Ramdhan made inquiries from the spot and then he reached the residence of the injured where he was told that the injured is under treatment in Balaji Action Hospital. No eye witness was found at the spot. Thereafter SI Ramdhan alongwith constable Pawan reached Balaji Hospital and found that the injured had been taken to operation theater for some surgery. He waited till the surgery was over and the doctor then told him that the injured is not fit for statement. On the basis of the MLC and on seeing the condition of the injured, he prepared rukka and got the FIR registered u/s 308 IPC.
3. It is further the case of the prosecution that the investigation of the case was carried out by SI Ramdhan himself, during the course of which he recorded the statements of eye witnesses namely Prince s/o Ram Sunder, Manish s/o Prabhu Nath Shah and Rishi s/o Hari Shanker. All of them stated that during a fight between deceased Vikas and accused Ram Kishan, over playing cricket, accused Ram Kishan hit Vikas with a cricket bat on his head near the shoulder, on seeing which they got frightened and ran away from the spot. Search for accused Ram Kishan was made but he was not found. Unfortunately, Vikas expired in the hospital on 17.4.2011. The postmortem on the dead body was SC No.64/11. Page 2 of 11 conducted on 18.04.2011 and on the basis of the postmortem report, Section 304 IPC was added to the FIR. Accused Ram Kishan came to be arrested thereafter and he is stated to have made a disclosure statement admitting that he had hit Vikas with a cricket bat. He got the cricket bat recovered from amongst the bushes near the spot of incident, which was seized by the Police. After the completion of the investigation, charge sheet was laid before the concerned court and the case was thereafter committed to the Court of Sessions.
4. Following charge was framed against the accused on 06.08.2011:-
"That on 14.4.2011 at 10.45 a.m., at Chhath Pooja Park, Nangli Vihar, Najafgarh, New Delhi, within the jurisdiction of P.S. Najafgarh, you hit deceased Vikas with a cricket bat on his head knowing that with this act, you are likely to cause his death, as a result of which he died and thus you committed the offence of culpable homicide not amounting to murder punishable u/s.304 Part-II IPC and within the cognizance of this Court."
5. The accused pleaded not guilty and, therefore, prosecution was called upon to lead its evidence.
6. The prosecution has examined 13 witnesses to prove the charge against the accused. The accused was examined u/s.
SC No.64/11. Page 3 of 11313 Cr.P.C. on 28.2.2012 wherein he denied all the incriminating circumstances put to him and claimed innocence as well as false implication in this case. The accused also examined two witnesses in his defence.
7. I have heard ld. APP for State and ld. Counsel for accused. I have also perused the entire material on record including the written submissions filed on behalf of accused.
8. Ld. APP submitted that the guilt of the accused gets fully established from the testimony of eye witnesses examined by the prosecution and the accused is liable to be convicted. On the other hand, ld. Counsel for accused submitted that there are material contradictions in the testimonies of the eye witnesses i.e. PW-2, PW4 and PW-5 which make them un-reliable witnesses. He submitted that infact, the deceased had stumbled against a pind (pyramid) made of bricks in the ground while running to catch the ball which had been hit by another boy named Suraj, while the boys were playing cricket in Chhath Puja Park. According to him, this stands proved from the deposition of two defence witnesses and hence, the accused is liable to be acquitted. He also submitted that the accused has been falsely implicated in this case on account of some property dispute going on between his father and Ashok Kumar, the maternal uncle of the deceased.
9. According to prosecution, PW-2, PW-4 and PW-5 were the eye witnesses to the incident. They were playing cricket in Chhath Puja Park, where the incident took place, at the time of incident and the incident happened in their presence. PW-2 who is SC No.64/11. Page 4 of 11 a boy of 15 years age, and the brother of deceased Vikas has deposed in his examination in chief that on 14.4.2011 at about 9 am,, he alongwith his friends Rishi and Manish were playing cricket at Chhath Puja Park, Nangli Vihar. Another boy Badal was also playing cricket with his friends at another place in the same park. They requested Badal to allow them to play with him but Badal did not allow them to play. They remained standing thee for about 15 minutes. Thereafter his brother i.e. deceased Vikas also came to the park to play cricket. On seeing Vikas, Badal told him that he has called an anti social element (Badmash) and further told him that he would also call somebody. Thereafter Badal left the park and brought a boy named Ram Kishan @ Vakil alongwith him. Another boy named Gulli was also accompanying Ram Kishan. On reaching the park, Ram Kishan and Gulli called him. His brother intervened and told them to talk to him. Gulli slapped Vikas and also threw a piece of stone upon him. Thereafter they returned to their house. As per his further deposition, they again came to the park for playing cricket after half an hour. At that time Ram Kishan was present in the park playing cricket but Gulli was not present there. A verbal altercation took place between Vikas and Ram Kishan. Ram Kishan hit Vikas with a cricket bat on his neck. Vikas fell down unconscious and even after falling down, Ram Kishan and his friends kicked Vikas with their feet. He came to the house and informed his maternal uncle Ashok about the incident and thereafter Vikas was taken to Gandhi Nursing Home. He, at first, failed to recognise accused Ram Kishan @ Vakil but recognised him later on on the pointing out of ld. APP in the form of a suggestion.
SC No.64/11. Page 5 of 1110. In the cross examination, PW-2 admitted that there are several pyramids like Pinds made of cement and bricks on the sides of the park. He, however, added that there is no such pind in the middle of the park. He stated that Manish and Rishi are the sons of his maternal uncle and admitted that he did not know other boys playing in the park accept Manish and Rishi. He denied that any dispute regarding commission on the sale of properties is going on between his maternal uncle Ashok and accused's father Ram Karan.
11. PW-4 Manish is a boy of aged 12 years and the cousin of deceased Vikas. He stated in his examination in chief that on 14.4.2011 at about 9 am he alongwith Rishi, Vikas and Prince were playing cricket at Chhath Puja Park, Nangli Vihar. At that time a boy named Badal was also playing cricket in the same park. They requested Badal to allow them to play with him but he did not accede to their request. Thereafter Badal went out of the park and called his 8/9 friends. The witness remembered the names of only two of them as Ram Kishan @ Vakil and Gulli. According to him, Gulli slapped his brother Vikas and thereafter they returned to their home. He further deposed that after about half an hour, they again went to play cricket in the park. Badal, Ram Kishan and Gulli etc. were present in the park. A verbal altercation took place between them and his brother Vikas. Ram Kishan took a bat and hit Vikas on his neck below ear. Vikas fell down and these persons beat him with kicks even after he fell down. He identified accused Ram Kishan correctly in court. In his cross examination, he could not say whether Vikas was hit on the left side of head or on the right side. He also denied the suggestion that any dispute SC No.64/11. Page 6 of 11 regarding commission on the sale of property is going on between his maternal uncle Ashok and accused's father Ram Karan.
12. PW-5 Rishi is also a 12 years aged boy and another cousin of Vikas. He deposed that on 14.4.2011, he alognwith prince, Vikas and Manish was playing cricket in at Chhath Puja Park, Nangli Vihar. A boy named Badal was also playing cricket with his fiends in the park. They requested Badal to allow them to play cricket with him but he refused to do so and started abusing them. Then Badal called 9/10 boys. He remembered the names of only two boys i..e Gulli and Vakil. He further stated that Gulli said to Prince "Kalu Idhar Aao" (Come here). At this Vikas told Gulli that Prince is his brother and he should talk to him. Thereafter Gulli slapped Vikas and then a fight ensued. Thereafter Vakil hit Vikas with a cricket bat on his neck. Vikas fell down and those persons started kicking him. Then they went home and informed uncle Ashok about the incident. In the cross examination, he stated that he cannot recognise all those boys who were playing in the park at the time of incident and also does not know their names. He had not seen accused Vakil before the incident. He had seen Gulli one or two times before the incident. According to him, the cricket bat with which Vakil hit Vikas was of normal size and it was of chocolate colour. He did not recollect whether anything was written on the bat. He recognised the bat Ex. P-1 when shown to him in the court. He also denied that there is any dispute over the commission of sale of any property going on between his maternal uncle Ashok and accused's father.
13. It is evident that the testimony of these three material SC No.64/11. Page 7 of 11 witnesses of the prosecution is absolutely in sync with each other and corroborate each other in material particulars. I do not find any noteworthy contradictions in the depositions of these three witnesses. There are minor discrepancies regarding the time of the incident and number of boys accompanying the accused Ram Kishan a the time of incident, however, in my opinion, these do not affect the prosecution case at all. It is to be remembered that these witnesses are minor children and in all probability they would not have been wearing watches at the time of incident. It will be absolutely unjustified to expect them to tell he correct time when incident took place . Moreover, the power of observation of an incident and power of memorizing the incident vary from child to child. It is for this reason that minor discrepancies have crept in the testimony of these witnesses. Of course, there are also some improvements also in their testimony before the Court, over their previous statements recorded by the Police but those improvements are also totally insignificant and worthy to be ignored. I find these three witnesses absolutely truthful and reliable. There is nothing in their deposition to suggest that they are tutored witnesses. Their presence at the spot of incident is not disputed by the accused as no suggestion has been given to any of these witnesses in this regard. Therefore, it is absolutely certain that they have witnessed the occurrence in which Vikas got injured.
14. The defence sought to be raised by the accused, which is manifest from the testimony of DW1 and DW2, that deceased Vikas stumbled against a pyramid in the park while running to catch the ball hit by one Suraj, fell down and became unconscious SC No.64/11. Page 8 of 11 appears to be a mere after thought. It has not been suggested to either of these witnesses that accused did not hit Vikas with a cricket bat. Suraj who is stated to have hit the ball and Rahul, who was bowling,as deposed by DW1, have not been examined as witnesses by the accused. The testimony of DW1 and DW2 is evidently unconvincing and untrustworthy. If a person would stumble, while running, against a pyramid made of bricks and cement he will fall on his face and would get injury on his face. Certainly he would get some external injury on his face. No such external injury was seen on the body of the deceased Vikas, when brought to Gandhi Nursing Home by PW6. PW3 Dr. Pawan Gandhi has specifically stated that he did not find any external injury on the body of Vikas. He had suffered an internal injury in right fronto temporo -parietal region, which could be known only after CT scan. Such an injury is possible by a hit from a cricket bat which has only blunt edges and no sharp edge.
15. DW2 has also sought to dispute the presence of the accused at the spot. In his cross examination, he has stated that accused was not present at the spot as a Bhandara had been organised at his home by his father. He nowhere states how did he know this when he himself was present in the park. He did not participate in the Bhandara. Accused has not examined his father to prove this fact. His father was the best witness in this regard. DW1 has not spoken about absence of the accused at the spot when the incident happened. Hence, this assertion of PW2 is absolutely false and concocted on the face of it.
16. From the testimony of the eye witnesses PW2, PW4 SC No.64/11. Page 9 of 11 and PW5 coupled with the CTC Head of the deceased (Ex.PW3/B), it is clear that the deceased was hit by the accused with a cricket bat on the right side of his head. The deceased had suffered serious internal injuries known as subdural haematoma with midline shift and ultimately succumbed to these injuries. Postmortem report Ex.PW8/A mentions the cause of death to be cranio cerebral damage (head injury) consequent upon blunt force impact. There does not remain any doubt that the deceased died of the head injury, he had suffered on being hit by the accused with a cricket bat.
17. It is also important to note that the weapon of offence i.e. a cricket bat was got recovered by the accused himself from the bushes near the spot of incident after his arrest on 18.4.2011. It was submitted by Ld. Counsel for the accused that the recovery of the cricket bat cannot be believed as there is no public witness to the same. It may be stated here that the IO appearing as PW13 has deposed in his cross examination that he requested four or five persons to join the investigation at the time of recovery of the bat, but none agreed to do so. He further stated that there is no residential house near the spot of recovery of the bat. Thus, it is apparent that the investigating officer had made sincere efforts to rope in public witnesses at the time recovery of the cricket bat, but as generally happens, particularly in Delhi, no public person expressed willingness to join the investigation. Therefore, the recovery of the cricket bat at the instance of the accused cannot be faulted with on this score. The bat was correctly identified by PW5 as well as by the investigating officer as also by the autopsy doctor PW8, who had given a subsequent opinion regarding this SC No.64/11. Page 10 of 11 cricket bat saying that the injuries suffered by the deceased could be possible by the said bat. The said cricket bat is Ex.P1.
18. The aforesaid discussion leads the court to only one conclusion that the accused has committed the offence with which he has been charged. In the opinion of the court, the prosecution has been successful in proving the guilt of the accused. However, it is noteworthy that it does not appear from the evidence led by the prosecution that the accused intended to cause death of deceased Vikas. From the manner in which the accused hit the deceased on his head with force by a cricket bat, knowledge can be imputed to the accused that his hit could cause death of the deceased. Head is a vital part of human body and it is a matter of common knowledge that any forceful impact upon the head of a person can cause his death. The accused has committed the offence punishable u/s.304-II IPC.
19. The accused is therefore, convicted for having committed the offence mentioned in second clause of section 304 IPC.
Announced in open (VIRENDER BHAT)
Court on 12.9.2012. A.S.J. :Dwarka Courts
New Delhi.
SC No.64/11. Page 11 of 11