Delhi District Court
State vs 1. Bhim Rattan, S/O Mukat Singh, on 16 February, 2015
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
SC No.58/2011
FIR No.137/2011
PS Tilak Nagar
U/s 304/341/34 IPC
State Versus 1. Bhim Rattan, S/o Mukat Singh,
R/o C372, New T.C. Camp A,
Raghubir Nagar, Delhi.
2. Chander Parkash,
S/o Bajrang Lal,
R/o C364, New T.C. Camp A,
Raghubir Nagar, Delhi.
Received on Assignment. : 20.10.2011.
Date of Arguments. : 13.02.2015.
Date of Judgment. : 16.02.2015.
: J U D G M E N T :
1.The above named accused persons were booked by SHO PS Uttam Nagar U/s 307/34 IPC and have faced trial for having committed the offences punishable U/s 304/341/34 IPC.
2. It is the case of prosecution that on 04.05.2011 on receipt of DD No.26A, PSI Satish Kumar reached at DDU Hospital, where he collected the MLC No.8497/11 of injured Lachhi S/o Sh. Manku R/o H. No.C75, New T.C. Camp, Raghubir Nagar, Delhi, who was found admitted there in the hospital. Upon the MLC of injured doctor mentioned "alleged H/O Assault 1 day back as told by BB and result U/o Blunt and patient was (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.1 of pages 31 declared unfit for statement". Said PSI carried out the investigation and during that course, he came to know that quarrel had taken place at Khyala Road from Subhash Nagar Mor, which area falls within the jurisdiction of PS Tilak Nagar. Thereafter, on 10.05.2011 on information received from PS Rajouri Garden, further investigation was carried out by HC Vijender Singh of PS Tilak Nagar and during that course he visited DDU Hospital and presented before the court a written request for recording the statement of injured, whereupon the doctor mentioned as "unfit for statement". On the same day son of injured and eye witness of occurrence namely Raju S/o Sh. Lachhi R/o H. No.C75, New T.C. Camp, Raghubir Nagar, Delhi, got recorded his statement to HC Vijender Singh wherein he stated that "he has been residing alongwith his parents at the aforesaid address and studying at VIII class. His father is a cleaner at Sant. Sisilia School, Vikas Puri and he used to sell vegetables through Rehri in the evening. On 03.05.2011, he was helping his father in selling the vegetables at Rehri and at about 11.30 p.m (night) two persons were having golgappa on rehri. The gol gappa seller had put his rehri in the middle of road. His father asked the gol gapps seller, to remove his rehri from there, to which the said two boys started abusing his father. When his father asked the said boys not to abuse him, the said boys started giving fist blows. His father tried to run away from there but the said two boys got him stopped in the way and did not let him go. When he tried to save his father, they slapped him and while giving beatings to his father, they pushed him as a result of which his father fell down and he stained injuries on his head and became unconscious. He raised noise but the said boys managed to escape from there."
From the above statement, MLC of injured and (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.2 of pages 31 circumstances, a case U/s 323/341/34 IPC was found to be made out and accordingly, HC Vijender Singh prepared a tehrir and got registered the case in the matter and thereafter, investigation of the case was handed over to SI Basant Kumar, who during investigation observed that since doctor has opined the nature of injury as "grievous", so he added Sec.325 IPC in the matter and also recorded the statements of witnesses. Search for eye witness of the occurrence was made but on finding no other eye witness of the occurrence, at the instance of complainant namely Raju, place of the occurrence was inspected and at his instance site plan of the place of occurrence was prepared by IO/SI. Search for accused persons were made but no clue could be found against them. On 27.07.2011, during treatment injured Lachchi expired at DDU Hospital and accordingly, Sec.304 IPC was added in the case. On 28.07.2011, after got conducting the postmortem on the dead body of Lachchi, the dead body was handed over to its claimant. Postmortem report of the deceased was collected from the hospital, whereupon doctor opined as "1. The caused of death is due to acute encephalitis and associated complications consequent upon sustained head injuries. The head injuries (intra cerebral haemorrhage) were sufficient to cause instant/delayed death in ordinary course of nature. However, the extension of life is possible by means of prompt and reasonable treatment as practiced in this case. 2. Time since death is consistent to time of hospital death (as mentioned in death summary). 3. Manner of death is homicide." On 02.08.2011, at the instance of complainant Raju, accused Bhim Rattan S/o Sh. Mukat Singh R/o H. No.C372, New T.C. Camp, Raghubir Nagar, Delhi and Chander Prakash S/o Sh. Bajrang Lal, R/o H. No.C364, New T.C. Camp, Raghubir Nagar, Delhi were apprehended and interrogated and during (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.3 of pages 31 that course they admitted their crime. Their respective disclosure statements were recorded in the matter and on finding sufficient material against them, they were formally arrested in this case. Thereafter, both the accused persons got identified the place of occurrence. Both the accused persons were sent to Judicial Custody through Court. Then after completion of investigation, charge sheet U/s 304/341/34 IPC against both the accused persons was filed before the court of concerned Metropolitan Magistrate.
3. After supply of copies etc., Ld. MM committed the case to the court of Sessions where after due deliberation charge under Sec.304/341/34 IPC was framed against both the accused persons, to which they pleaded not guilty and claimed trial. Prosecution was called upon to adduce evidence to establish the charges. Eleven witnesses were tendered towards prosecution evidence. Thereafter, PE was closed and statements of accused persons U/s 313 Cr.P.C were recorded wherein they rebutted the entire evidence as fabricated and pleaded innocence. Accused Bhim Rattan has claimed that on 01.08.2011, he was brought to the PS Tilak Nagar because a quarrel took place between him and his neighbour Shaym regarding cleaning of drain. After that Shyam left PS and he was detained in the PS and was falsely implicated in this case. Accused Chander Prakash claimed that on 27.07.2011 in the evening at about 6.00 p.m, he was taken by police of PS Tilak Nagar from the clinic of Dr. Munish Mirwani situated at Moti Nagar, Delhi with the plea that he was required for investigation. He was illegally detained in the Police Station Tilak Nagar and later on, in the night of 02.08.2011, he was sent to lock up of PS Tilak Nagar and this false case was planted against him.
Both the accused persons namely Bhim Rattan and (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.4 of pages 31 Chander Prakash opted to lead evidence in their defence and accordingly examined Shyam and Dr. Munish Mirwani respectively in their defence as D1W1 & D2W1 respectively.
4. I have gone through the entire records and given my prolonged consideration to the controversy in hand.
5. PW1 Raju (complainant and eye witness of occurrence) stated that his father Lachhi (since deceased) used to work at Saint Cicilia School, Vikas Puri as Safai karamchari and he also used to sell vegetables on rehri in the evening after his duty hours. On 03.05.2011 at about 11/11.30 p.m, when he along with his father Lachhi were selling vegetables on rehri of his father on road in front of TC Camp opposite Jhuggi Shyam Nagar, Raghubir Nagar, one person was selling Gol Gappa on a rehri on road ahead to their rehri. Two boys were eating gol gappa on the said rehri. His father asked the owner of the gol gappa rehri to remove his rehri from road stating that as there might be jam on the road. Thereafter both the boys, who were eating gol gappa started abusing his father. He stated that those two boys are present in the court. He further stated that when his father asked the accused persons not to abuse him, the said accused caught hold his father and they started beatings to his father with leg and fist blows and they also hit the head of his father with rod and they also pushed his father on the road. His father become unconscious due to the said injuries. When he tried to save his father, he was also beaten by both the accused persons. Thereafter both the accused ran away from the spot. He called his mother Smt. Savitri, who was present at the house, which was near to the spot. Accordingly, she reached there and then he along with his mother removed his injured father Lachhi to DDU Hospital, Hari Nagar in a Santro car of his friend. On (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.5 of pages 31 03.05.2011 i.e. the date when his father was hospitalized, his statement Ex.PW1/A bearing his signature at point A was recorded. His father died in the DDU hospital during his treatment on 27.07.2011. Both the accused persons namely Chander Prakash and Bhim Rattan were arrested by the police on his information and at his instance in the evening time at about 8.30 pm vide memo Ex.PW1/B and Ex.PW1/C respectively bearing his signature on both at point A. He could not tell the date of arrest of accused persons. He also proved on record the personal search memo of accused Bhim Rattan and Chander Prakash as Ex. PW1/D & Ex.PW1/E respectively, both bearing his signatures at point A. He further stated that after the postmortem on the body of his deceased father, dead body was handed over to them vide receipt Ex.PW1/F bearing his signature at point A. He pointed out the place of occurrence to IO, who prepared site plan at his instance. He conceded that on 02.08.2011 accused Chander Parkash was arrested from house no. C364, near TC Camp, Raghubir Nagar, Delhi and accused Bhim Rattan was arrested from H. No.C372, TC Camp, Raghubir Nagar in his presence. His supplementary statement was also recorded regarding the proceedings conducted by IO on 02.08.2011.
During cross examination he stated that his used to have rehri for vegetables and separate rehri for meat. The distance between the space where we used to sell the meat and the vegetables rehri is about 2 feet. The footpath were they used to sell meat is about 6/7 feet wide and they sit on footpath for selling meat. The footpath is at a distance about one metre from the door of his house. They started selling vegetables at the rehri at about 4/4.30 pm. The gol gappa rehri was started at about 10.00 pm in the night. His father had asked the gol gappa (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.6 of pages 31 wala raheri person to keep his rehri on the side even before reaching of accused persons at gol gappa rehri. The gol gappa wala was not keeping his rehri earlier at the spot. He could not tell as to where he used to sell gol gappa prior to the incident. The place where they had vegetables rehri the bazar is there every day for selling vegetables. The gol gappa rehries used to be available in the vicinity of that bazar but they moved here and there. He had not told the name of assailants in his statement Ex. PW1/A. There was no rush on the road on which there was sabji bazar mentioned above at the time of incident. His father was known to Mukat Lal, father of accused Bhim Rattan and not known to the father of accused Chander Parkash. He was not medically examined in this case. He conceded that he had not mentioned in his statement regarding the injuries received on his body parts. He clarified that he was slapped by the accused persons and he had not received the kind of injuries for which he would have been medically examined. He further stated that when accused persons pushed his father and his father fell down on the ground, he intervened in the matter and tried to save his father by holding both the accused persons, at that time he was given beatings by both the accused persons. He denied the suggestion that his statement was not recorded on 03.05.2011. He conceded that on 03.05.2011, he had not telephoned the police informing about the incident, however, he clarified that immediately after the incident they took their father to the hospital. He had signed three/five documents in the police station on 02.08.2011 but he does not know the contents of the documents which he had signed in the police station. On 02.08.2011 in the night IO met him in the police station before they visited house of accused Chander Prakash. It might be 8.00/9.00 pm when IO met him in (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.7 of pages 31 the police station on 02.08.2011. He conceded that police did not record statement of his father in the hospital on 03.05.2011 and 04.05.2011. He further conceded that on 02.08.2011 he had not visited house of accused Chander Prakash. There are number of other meat and vegetables shops near his shop. Gopal runs meat shop at a distance of two - three shops from his shop and Zameel sells eggs in adjacent shop to mine. When he raised alarm, the shopkeepers of nearby shops reached at the spot but these shopkeepers did not get their statements recorded to the police as they were scared of accused persons. On first floor of his house, there are four tenants who live alone and at the time of incident they were present in the tenanted premises. Police did not make his tenants as witnesses. The police station is at a distance of two
- three kilometers from the spot and police booth is at a distance of one kilometer from the spot. He did not ask anyone to inform at police booth about the incident on 03.05.2011. No one had informed the police in respect of this incident. He stated that in his complaint, he had mentioned description of accused persons. However, he clarified that he had mentioned name of accused persons and the torn shirt of accused Bhim Ratan was with me as when he tried to apprehend him, he ran away and he had thrown that shirt thinking that it was of no use.
PW2 Smt. Savitri Devi (wife of deceased) stated that on 03.05.2011 her husband had received some injuries in a quarrel happened with two or three boys in the market. She had taken her husband to DDU Hospital, where her husband was not allowing the doctors to given vaccine. There was no superficial external injuries and she was not knowing that her husband had received some internal head injuries and doctor had sent him back from the hospital. She had not told to the (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.8 of pages 31 doctor anything regarding quarrel taken place on 03.05.2011. Next morning, on the advise of private doctor as the condition of her husband was quite serious, she took her husband again to DDU Hospital, where he was admitted and medically examined and he underwent number of tests and remained admitted in the hospital for about three months and thereafter, he expired.
During cross examination, she conceded that at the time of incident, she was present at his residence. She denied that he had not seen quarrel between two boys. She stated that eightten boys had taken her husband to the hospital. She also stated that when they returned back from the hospital on 03.05.2011, her husband was in a position to talk. Further on 04.05.2001 i.e. on the next day of incident, she herself and her son Raju had taken her husband to DDU Hospital in the vehicle of nearby meat shopkeer namely Mota. She further stated that neither her tenants came at the spot nor police recorded the statements of her tenants, however, she clarified that police recorded the statement of one egg seller namely Zameel. She denied that her husband was heavy drunker, therefore, his lungs were not functioning properly or that on 04.05.2011, her husband had fallen down from the stairs, therefore, she had taken him to the hospital. She further denied that when condition of her husband started deteriorating, she alongwith her son Raju got the false case registered on the basis of concocted story on 10.05.2011 to save their own skin or that her husband had died due to infection pursuant to surgery.
PW3 ASI Om Kanwar, the then Duty Officer at PS Tilak Nagar, proved on record the computerized copy of FIR of the instant case as Ex.PW3/A, his endorsement, made on rukka as Ex.PW3/B bearing his signature at point A and Certificate U/s 65B of Evidence Act as Ex.PW3/C bearing his signature at (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.9 of pages 31 point A. PW4 HC Ishwar proved on record the copy of relevant entry made at Sl. No.5459 of register no.19 regarding depositing of one sealed parcel duly sealed with the seal of DFMT DDU Hospital alongwith the sample seal of hospital and carbon copy of seizure memo by SI Basant Kumar on 28.07.2011 with him, as Ex.PW4/A. PW5 SI Satish Kumar is the witness, who on 04.05.2011 on receipt of a telephonic information from Duty Officer in respect of admission of one injured Lachchi in DDU Hospital, reached at DDU Hospital, where he met with the wife of injured Lachchi, who was present outside the ward. On making inquiry, wife of Lachchi (PW2) told that her husband had some quarrel with some one in the market and she was not knowing anything as to with whom the quarrel took place. She further informed him that the said fact was told to her by her son. Thereafter, he met the doctor, who declared the patient as unfit for statement. Wife of injured refused to accompany him to the place of occurrence on that point of time. On visiting the house of injured, no one found there and even the persons present outside the house of injured did not tell anything about the occurrence. On 05.05.2011, he again went to DDU Hospital, where wife of injured again met him. On that day also, injured was unfit for statement. Wife of injured again expressed her inability to accompany him to the spot. On 07.05.2011, he again visited DDU Hospital, where he met with the wife of injured, 23 other relatives and her son. The wife and son of injured accompanied him to the spot, which was within the jurisdiction of PS Tilak Nagar. Wife of injured produced two eye witnesses namely Jamil and Ram Dass from whom he made inquiries and recorded their statements Ex.PW5/D & Ex.PW5/E respectively, (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.10 of pages 31 wherein they stated that there was a quarrel took place between Lachchi and two boys but they were not able to identify those boys. He had also recorded the statement of the wife of deceased Lachhi. Thereafter, he prepared his report Ex.PW5/A and went to PS Tilak Nagar and briefed the facts to SHO and as per his instructions, he handed over to the Duty Officer, a copy of DD No.26A Ex.PW5/A, his report Ex.PW5/A and statements of Smt. Savitri (wife of injured), Zamil and Ram Dass Ex.PW5/C, Ex.PW5/D & Ex.PW5/E respctively alongwith his applications dated 05.05.2011 & 08.05.2011 Ex.PW5/F & Ex.PW5/G respectively written to the doctor of DDU Hospital for recording the statement of injured and the MLC of injured. Further on 08.05.2011, he had shown the place of occurrence to HC Vijender Singh of PS Tilak Nagar.
During cross examination, he stated that he had recorded the statements of Smt. Savitri, Zamil and Ram Dass Ex.PW5/C, Ex.PW5/D and Ex.PW5/E respectively on 07.05.2011. He conceded that these statements do not bear the date. He further conceded that these statements are signed by the witnesses. On 07.05.2011, he had met the son of injured in the hospital alongwith the wife of injured but he did not record the statement of son of injured as he had left the spot for the hospital immediately. He did not visit the hospital again to record the statement of son of injured because by that time she came to know that the incident pertained to the jurisdiction of PS Tilak Nagar. He conceded that he did not register the zero FIR on the statement of Smt. Savitri. He clarified that he immediately left for PS Tilak Nagar alongwith the relevant document and handed over the same to concerned Duty Officer. He confirmed that neither HC Vijender Singh nor IO recorded his statement U/s 161 Cr.P.C in this case.
(SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.11 of pages 31 PW6 SI Mahesh Kumar, is the Draftsman, who proved on record the scaled site plan of the spot i.e. Road Side in fron of H. No.C75, TC Camp, Raghuvir Nagar, Delhi, as Ex.PW6/A bearing his signature at point A. During cross examination he conceded that since Raju did not mention about the golgappa rehri (hand cart), therefore, he did not mention the place of golgappa rehri in the Site Plan.
PW7 Dr. Babita is the witness, who appeared in the court to depose on behalf of Dr. Daibasarathi (Jr. Resident), who examined the patient Lachchi (brought by Savitri (wife) with the history of physical assault) vide MLC no.8497 Ex.PW7/A bearing his signature at point A. On examination, patient was conscious, oriented and drowsy. On local examination, (1) avulsion of upper right incisor (2) small CLW present on inner surface of upper lip. The patient was referred to Dental Emergency and Neuro Surgery Emergency.
During cross examination she stated that as per MLC, it is not certain that the avulsion of incisor was fresh or old. She confirmed that injury no.2 is simple in nature. She stated that if she considers both the injuries no.1 & 2, the patient can not be drowsy. It is possible that if person is in heavily drunk, he could be in state of drowsiness. She confirmed that as per MLC, the injured was in state of understanding and he was in senses.
PW8 HC Surender Singh is the witness of arrest of accused persons. He stated that on 02.08.2011, he along with SI Basant Kumar, Ct. Anil and complainant Raju (son of deceased) went for the search of accused persons. Complainant Raju led them to the house of Chander Prakash i.e. H.No. C364, New TC Camp, Raghubir Nagar Delhi from where accused Chander Prakash was caught. Complainant identified Chander Prakash to be the person, who had beaten (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.12 of pages 31 his father and on his identification, he interrogated by the IO and arrested vide arrest memo Ex.PW1/B. Personal search of the accused was also conducted vide Ex.PW1/E and he made his disclosure statement vide Ex.PW8/A. Thereafter, complainant Raju led them to house of Bhim Rattan i.e. H.No. C372, New TC Camp, Raghubir Nagar, Delhi, from where accused Bhim Rattan was caught. Complainant also identified him to be the person, who had beaten his father and on his identification, accused Bhim Rattan was interrogated by the IO and arrested vide arrest memo Ex.PW1/C. Personal search of the accused Bhim Rattan was conducted vide Ex.PW1/D and he made his disclosure statement vide Ex.PW8/B. He stated that both the accused Chander Prakash and Bhim Rattan led them to the place of occurrence and pointed out the same vide pointing out memos Ex.PW8/C & Ex.PW8/D respectively. He correctly identified both the accused persons.
During cross examination, he stated that first of all they went to the house of complainant Raju and reached there at about 08:00 PM and at that time they all were in uniform. Raju told to the IO that he can point out the houses of accused, which he told when he met them at his house. He stated that no independent public person except the Raju was asked to accompany. The house of accused Chander Prakash is situated at 200 meters away from the house of complainant. They directly went to the house of Chander Prakash. He neither could tell the colour of walls and doors of house of accused persons nor the description of the doors of the house of accused persons whether it was wooden door or iron door. He stated that accused was called out side his house and was caught. The writing work was done by sitting on the chair, outside the house of accused Chander Prakash and the chair (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.13 of pages 31 was brought by one public person. No public person except complainant was joined at the time of arrest of accused persons. Further the distance between the house of accused Bhim Rattan and the complainant was about 10 steps. He conceded that no date is mentioned on the disclosure and pointing out memo of the accused Bhim Rattan. His statement was recorded in the PS, after 11:00 PM. We reached at police station at 11:40 PM from the hospital.
PW9 Dr. Santosh Kumar is the witness, who conducted postmortem on the dead body of deceased Lachchi and prepared the postmortem report Ex.PW9/A bearing her signatures at point A. He stated that on 28.07.2011 at about 02:00 PM, he received the inquest papers for conducting postmortem on the body of deceased Lachhi aged 46 years male with alleged history of physical assault by two unknown persons while selling the vegetables on 03.05.2011 at about 11:30 PM and on the next day he was brought to casualty at about 12:45 PM in DDU Hospital with history of loss of consciousness and admitted in neuro surgery department, the patient was operated for head injury and on 27.07.2011 at 09:00 AM the patient expired during treatment.
GENERAL EXAMINATION: The rigor mortis was present all over the body, the postmortem staining was present on the back aspect of the body. Both eyes were partially opened with cornea dry and hazy, mouth was partially opened. Multiple cannula prick marks were present over the bilateral cubbital fossa and wrist region. Old healed surgical scar mark of craniotomy was present on the right fronto temporo parietal region of scalp. Tracheotomy incision(partially healed) was present on anterior mid part of neck. Bed sore was present on the lower back extended on the (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.14 of pages 31 bilateral side of buttocks of size 7cm x 4 cm with granulation tissue was present on the base and margins with emitting foul smell. Upper central incisor tooth was missing without revealing any fresh injury at socket.
EXTERNAL EXAMINATION: No fresh external injury was seen on the body except bed sore on the back and buttocks. The injuries which are mentioned in the MLC are completely healed up without leading any external scar marks.
INTERNAL EXAMINATION: Scalp : Scar mark of surgical intervention was present on the scalp.
Skull : Fractured occipital bone with partially healed up. The circular bone flap on the right temporo partial part of bone replaced again at surgical site after craniotomy which seen partially healed up.
Brain, Meninges & Vessels : The dura mater resected at right temporo parietal region during surgical intervention. N o obvious blood clots were seen on subdural space except fibrous remnant of blood clots with yellowish in colour traceable on the right fronto temporo parietal and basal part of brain was present. Whole brain moderately oedematous with sloughing of upper and bassal parts of the brain. Multiple pus pockets were present on the basal part of the brain(suggestive of acute encephalitis) Base of skull :Intact.
Blood in gauze was preserved, sealed and handed over to the IO.
OPINION: The cause of death is due to acute encephalitis and associated complications consequent upon sustained head (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.15 of pages 31 injuries. The head injuries(intra cerebral haemorrhage) were sufficient to cause instant/ delayed death in ordinary course of nature. however, the extension of life is possible by means of prompt and reasonable treatment as practiced in this case.
The time since death was consistent to time of hospital death. Manner of death was homicide.
During cross examination, he conceded that the injuries shown in MLC Ex.PW7/A were completely healed up without leaving any external scar marks. He further conceded that the death could not be caused individually by CLW(clear lacerated wound) present in the inner surface of the upper lip. He clarified that death was caused due to the head injuries/intra cerebral hemorrhage. He further stated that septicemia could be developed due to prolong hospitalisation of the patient. He conceded that he received inquest papers which include death summary Ex.PW9/DA.
PW10 HC Vijender Singh is the witness, who on 10.05.2011 on receipt of DD No.26A Ex.PW5/P regarding admission of Lachchi admitted by his wife Savitri in DDU Hospital, went to the DDU Hospital and found Lachchi admitted in the hospital. He moved an application Ex.PW10/A and doctor opined that patient is unfit for statement. In the hospital, he met complainant Raju and recorded his statement Ex.PW1/A. Thereafter, he made endorsement under section 341/323/34 IPC Ex. PW10/B and presented the rukka to duty officer, who recorded FIR and handed over the copy of FIR Ex.PW3/B and original rukka to him. On the direction of the SHO, the investigation was handed over to SI Basant Kumar.
During cross examination, he conceded that doctor had not opined on the MLC Ex.PW7/A that injured was unfit for statement. Injured was not talking at that time and he was not (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.16 of pages 31 in senses. He denied that he deliberately did not record the statement of injured Lachchi as he told him that no one caused injury to him. He stated that Smt. Savitri was not present in the hospital on the day when he visited the hospital. He did not ask any reason from complainant Raju as to why he did not give statement from dated 03.05.2011 to 10.05.2011 to any police official?
PW11 SI Basant Kumar (IO of the case) narrated about his entire role played in the investigation. He stated that on 12.05.2011, investigation of the case was marked to him and on perusing the case file he found the injured Lacchi admitted in the DDU hospital. Accordingly, he went there but the injured Lachchi was unfit for statement as the injury on his person was grievous. He added section 325 IPC in the case. He proved on record Site Plan as Ex.PW11/A bearing his signature at point A. Injured Lacchi remained unfit for statement during his treatment in the hospital. Further on 21.07.2011, complainant Raju met him in DDU Hospital and he told him that his father was beaten and pushed by Bhim Rattan and Chander Prakash. He recorded the statement of Raju u/s 161 Cr.P.C on 23.07.2011. On 27.07.2011, he received DD No.19A Ex.PW11/B from DDU Hospital to the effect that injured Lacchi has expired. On 28.07.2011 he moved an application Ex.PW11/C for the postmortem of deceased Lacchi. He prepared the brief facts of case Ex.PW11/D and filled in form 25.35(1)(B) Ex.PW11/E. He also collected death summary Ex.PW9/DA. On 28.07.2011, the dead body of deceased Lacchi was identified by Munna Lal and Gore Lal and he recorded their statements Ex.PW11/F and Ex.PW11/G respectively. The postmortem of deceased Lacchi was conducted by the Autopsy Surgeon and he collected the postmortem report Ex.PW9/A. The Autopsy Surgeon handed (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.17 of pages 31 over him one sealed envelope containing blood gauze piece and one sample seal of DFMT and he seized the same vide seizure memo Ex.PW11/H. The dead body of deceased was handed over to the relatives of deceased vide memo Ex.PW1/F. He also narrated about arrest of both the accused persons, conducting of their persons search, recording of their respective disclosure statements and about pointing out of the place of occurrence by them. He also stated that on 18.08.2011, he called SI Mahesh Kumar (the draftsman) and visited the place of occurrence, where they called Raju and at his instance scaled site plan Ex.PW6/A was prepared. On 23.09.2011, he recorded statement of Savitri W/o Lacchi.
During cross examination, he conceded that he has not mentioned the distance between the house of injured Lacchi and the place where Rehdi in the site plan Ex.PW11/A and he has also not shown the place where Rehdi of Golgappa was stationed. No public person including golgappa wala was examined u/s 161 Cr.P.C. as they were not found at the spot. There was a police booth on the road where the vegetable Rehdi was stationed. The distance between the police booth and the vegetable rehdi was about 400 meters. He conceded that in the statement Ex.PW1/A and statement u/s 161 Cr.P.C. dated 12.05.2011, complainant Raju did not name any person or description/stature who had attacked his father Lacchi, however, he had stated that he could identify them. Further from 12.05.2011 to 20.07.2011, he met the complainant Raju in the hospital a number of times and during this period Raju had not disclosed the names of the accused persons to him. Only on 23.07.2011, complainant Raju disclosed the complete address of accused persons. He conceded that neither the TIP of both the accused was got conducted nor did he ask the accused (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.18 of pages 31 persons whether they wished to get conducted the TIP. He confirmed that injured Lacchi and his family members used to arrange a Rehdi of Meat outside his house and he has not mentioned the exact distance between the Meat Rehdi and vegetable Rehdi in the site plan Ex.PW11/A. He has also not mentioned the distance between the house and the road and the distance between the Rehdi of Meat and footpath in site plan Ex.PW11/A. The writing work was done outside the house of accused Chander Prakash in the gali while sitting on a chair. No writing work was done in the house of accused Chander Prakash. There was light from the house of accused Chander Prakash for writing work. No public person gathered outside the house of accused Chander Prakash while he was doing writing work. He could not tell the time of his departure and arrival in the police station on 02.08.2011. He conceded that he did not seize the torn shirt of accused Bhim Rattan and shirt of accused Chander Prakash. He could not tell as to whether on 28.07.2011, one accused Sarwan was brought to the police station in a theft case. He also could not tell as to whether on 29.07.2011, one accused Gautam was brought to the police in a matter u/s 376 IPC or on 31.07.2011 one accused Shankar was brought to the police station in a matter of quarrel. He conceded that he did not lift any blood of injured Lachchi or blood stained mud from the spot. He further conceded that no statement of complainant Raju was recorded on 03/04.05.2011. Further deceased was hospitalised for a longer period. He had enquired from Raju about description of GOLGAPPE WALA, however, Raju did not give description and only told that he was GOLGAPPE WALA. He conceded that at the spot hawkers/ REDHI WALAS come and go regularly. He did not record statement of any neighbour/neighbouring hawker/REDHI (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.19 of pages 31 WALA.
6. D1W1 Sh. Shyam Lal stated that on 01.08.2011 it was Monday and at about 05:00 PM, he was alone in his house. Accused Bhim Rattan was cleaning the drain(Nali) outside his house. While doing that, Bhim Rattan spread some dirty water in front of his house and he had also broken the stone which was over drain of his house and altercation took place between him and Bhim Rattan. He also slapped him. He reached at police post Subhash Nagar to lodge complaint against Bhim Rattan where a police official met and he told the incident to him. He took him on his motorcycle to his house, where Bhim Rattan was present outside his house. That police official took him and Bhim Rattan on his motorcycle to P.S. Tilak Nagar, where his statement was recorded by the police official for half an hour. That statement was not signed by him. Thereafter, that police official asked him to leave and to take necessary action against Bhim. He came back to his house and Bhim remained in the police station. He does not know anything else thereafter.
During cross examination he stated that he does not know, who was Lachchi S/o Manku. He also could not tell the name of the person, who died in this case nor he could tell the residential address of the deceased. He conceded that deceased was resident of his locality i.e. New T.C. Camp, Raghubir Nagar, Delhi. He denied that he is deposing falsely in order to save the accused because he does not know, who was injured and victim of this case or that he mugged up the date. According to him, accused Bhim Rattan was booked on his complaint dt. 01.08.2011.
D2W1 Dr. Munish Mirwani stated that accused no.2 Chander Prakash is working in his clinic as an Assistant since the last 67 years. The timings of his abovesaid clinic are from (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.20 of pages 31 05:00 PM to 08:00 PM and it remains closed on Friday. On 26.07.2011 at about 06:30 PM, two police officials from P.S. Tilak Nagar came to his clinic and told that they wanted to take Chander Prakash with them to police station for questioning. He asked them about any notice/warrant, to which they told that it was a government procedure and it was none of his business. They took Chander Prakash with them. On 27.07.2011 it was Wednesday and after closing his clinic at 08:00 PM, he went to P.S. Tilak Nagar and saw Chander Prakash present there. He met SI Basant Kumar there and asked as to why Chander Prakash was detained in the police station. SI Basant Kumar told him that the routine questioning was going on and they would released Chander Prakash after finishing the questioning procedure. Chander Prakash was not released for two days thereafter. On 29.07.2011 at about 02:30 PM, he again visited P.S. Tilak Nagar and Chander Prakash was present there. He again asked SI Basant Kumar and told him that his clinic work was suffering and requested him to release Chander Prakash. SI Basant Kumar told him that still questioning was going on and he could arrange some other Assistant. After 45 days, he telephoned to the father of Chander Prakash, who told him that Chander Prakash was sent to Tihar Jail. Thereafter, he employed one another Assistant in his clinic. After three months, Chander Prakash came to his clinic and told that he was falsely implicated in a case of quarrel.
During cross examination he stated that he had not given in writing to any higher police official or any authority from dt. 26.07.2011 to 29.07.2011 and thereafter. He stated that he can not produce any single document by which he can prove that accused Chander Prakash was working in his clinic at any point of time. He clarified that since he has only one assistant in his (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.21 of pages 31 clinic as such he did not make any attendance register of the employee and is still working in his clinic. On 26 to 28.07.2011, he did not visit to the house of the accused Chander Prakash to inform his parents that Chander Prakash has been taken from to police from his clinic. However, he clarified that on 27.07.2011 in the morning, father of Chander Prakash namely Bajrag Lal met him near his house since he is a contract and work in the colony at Rajouri Garden and he informed his father. He denied that he is deposing falsely in order to save the accused because he does not know, who was injured and victim of this case.
7. I have carefully heard the submissions of Ms. Reeta Sharma, Ld. Addl. PP for the State and also of Sh. S.D. Pushkar and Sh. Baldev Raj, Ld. Counsels for the accused Bhim Rattan and Chander Prakash respectively. I have also carefully perused the entire material placed on record.
8. As per Ld. Addl. PP for the State the prosecution has been successfully able to connect the accused persons with the offence charged with. During her two folds arguments, Ld. Addl. PP for the state has contended that by way of consistent and trustworthy evidence of the material witnesses i.e. PW1 Sh. Raju (complainant and son of deceased), PW2 Smt. Savitri (wife of deceased) coupled with the testimonies of official witnesses and the medical evidence brought on record, the prosecution has been able to prove its case against the accused persons U/s 304/341/34 IPC beyond shadow of reasonable doubt. However, even for the sake of arguments if is accepted that the death was not the direct result of the injuries caused and that the ingredients of offence U/s 304 IPC is not satisfied but certainly the conviction of accused persons U/s 325/34 IPC is made out, as after the incident the deceased (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.22 of pages 31 remained hospitalized for more than twenty days. PM Report of the deceased, which is in consonance to the ocular testimony of PW1, also indicates that there was internal bleeding. Due to the said reason, the condition of injured deteriorated. Admittedly, accused persons were neither having any enmity with the complainant nor with the police, so there is no chance of their false implication in this case at the instance of complainant. Even otherwise, the testimony of complainant i.e. PW1 Sh. Raju is natural and trustworthy, which is also supported by the other prosecution witnesses and as such they are sufficient for the conviction of accused persons in this case. PW2 Smt. Savitri also confirmed the fact that after the incident, they took the injured to the hospital. The accused persons were well aware that a push with force given to an old man by two young persons could result into his death by sustaining head injuries like in the present case. The intensity of push given to the deceased was very high and it can be seen from the fact that the deceased fell down and his head was collided with the road. Further non mentioning the position of rehri of golgappa seller in the Site Plan is insignificant as the sole purpose of Site Plan is to pin point the place of incident and if is not mentioned in the Site Plan, it does not go to the root of case, in the situation where admittedly the golgappa rehri was not a fixed rehri, rather, it was a movable one. The contradictions pointed out by Ld. Counsel for accused persons are minor in nature and that can not be the basis of acquittal of accused persons.
Per contra, according to Ld. Counsel for accused persons, the prosecution has been miserably failed to prove its case under any of the sections, for which they have been charged. Firstly the testimony of PW1 (the alleged eye witness of occurrence) is not trustworthy and the same can not be (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.23 of pages 31 safely relied upon, as he is a planted witness, who was introduced lateron. Further there is a considerable delay of seven days in lodging the FIR of instant case and this fact can not be overlooked. Further initially in the FIR, which was registered U/s 341/323/34 IPC, wherein neither the names and particulars nor their physical appearance have been mentioned and their names creped up subsequently that too after a considerable period of time. Further perusal of the record reveals that the accused persons were earlier not know to PW1 and no judicial TIP of the accused persons were got conducted by IO in this case. The statement of PW2 Smt. Savitri U/s 161 Cr.P.C was recorded by the police after around more than two months and moreover, her testimony is of hearsay nature as at the time of incident, she was not present at the spot. Further in this case the goldgappa seller has not been examined, who could have been the most material witness in this case. IO even did not take any sincere step to get him traced and examined. Even the nearby meat seller namely Mota, in whose vehicle the injured was removed to the hospital was neither produced nor examined in this case. Further many persons and shopkeepers were present at the spot but none of them was made as a witness. Even in the Site Plan, place of gogappa rehri has not been depicted. In fact, the deceased had lost his life to be negligence and carelessness on the part of attending doctors during the period of his long treatment. The factum of arrest of the accused persons is also doubtful in the absence of any independent public witness. The presence of PW1 at the arrest of accused persons is also not free from doubt which can be seen from the testimony of said witness. Even otherwise there are number of material contradictions and improvements in the testimonies of PWs examined which are very significant.
(SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.24 of pages 31 Further the plea of Ld. Addl. PP that the accused can be convicted for the offence punishable U/s 325 IPC is also not tenable and is liable to fail in the absence of necessary material/evidence on record. Thus the accused persons are entitled for an order of acquittal in their favour.
9. Having heard the rival submissions of both the sides and carefully perusing the entire material placed on record, I have come to the considered opinion that the prosecution has not been able to prove the guilt of accused persons beyond the shadow of reasonable doubt and therefore, they are entitled for an order of acquittal in their favour by giving them benefit of doubt for the reasons firstly, there is a considerable delay of seven days in lodging the FIR of instant case, as the date of incident in the matter is 03.05.2011 at about 11.30 p.m and date of lodging of FIR is 10.05.2011 at 9.15 p.m, which is very significant particularly in the circumstances where PW7 Dr. Babita in her statement has clearly mentioned that as per MLC dated 04.05.2011 Ex.PW7/A, the injured was in state of understanding and he was in senses. Further, PW2 Smt. Savitri, who has claimed that the injured was taken to hospital on 03.05.2011 itself, has conceded in his cross examination that when they returned from the hospital on 03.05.2011, her husband was in a position to talk. The testimony of PW2 Smt. Savitri, which is of hearsay nature, as she herself stated that at the time of incident, she was present at her resident, is not trustworthy as there is nothing on record in the form of OPD card/prescription slip, to substantiate that injured was taken to hospital by her alongwith her son on 03.05.2011 itself. According to PW2, her husband was in the condition to speak when they returned back from the hospital on 03.05.2011 and she admitted that there was no superficial external injuries and (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.25 of pages 31 no where in her testimony, she has stated that her husband was complaining pain in his head when he was taken to hospital on 03.05.2011 or had shown any symptom of abnormality like swelling or vomiting etc. In this case MLC is dated 04.05.2011 and PW7 Dr. Babita in her statement has conceded that as per MLC, the injured was in state of understanding and he was in senses. If it was so, then why the report was not lodged on 03.05.2011 itself on the statement of injured or even on the day of MLC of injured Ex.PW7/A, upon the statement of PW1 Raju.
Further initially the FIR in the matter was lodged U/s 341/323/34 IPC that too without mentioning the name of any accused on the complaint of Raju (who is also an eye witness of the occurrence) and his statement U/s 161 Cr.P.C was recorded after two months and 18 days of the incident, wherein he named both the accused persons. It is not clear as to how the names and particulars of accused persons came in the knowledge of PW1. The statement of wife of deceased i.e. PW2 Smt. Savitri U/s 161 Cr.P.C was recorded by the police after two months and four days of incident i.e. on 23.09.2011 and after about four months of incident and this fact also can not be over looked. Further PW1 Raju (complainant) seems to be a planted eye witness, which was introduced subsequently, as nowhere in his examinationinchief, he has stated that on 23.07.2011, IO had recorded his statement, wherein he named both the accused persons. PW1 in his statement stated that his statement was recorded by IO on 03.05.2011, whereas, IO stated that he recorded the statement of Raju on 12.05.2011 but according to record, the date of recording the statement of Raju is 10.05.2011, whereupon IO prepared rukka. Moreover, from the evidence brought on record, it is clear that PW1 Raju is not an eye witness of the occurrence, if he would have witnessed (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.26 of pages 31 the incident, he must have told the same to her mother, who according to PW5 on 04.05.2011 as well as on 05.05.2011 had refused to show him the place of occurrence. Even the testimony of PW6 SI Mahesh Kumar (the Draftsman) also indicates that PW1 Raju was not an eye witness as he failed to point out the position of golgappa rehri to him, which is also relevant. PW1 in his cross examination had stated that gol gappa rehri started at 10.00 p.m in the night and his father had asked the gol gappa wala to keep his rehri on the side even before reaching of accused persons at gol gappa rehri. It means injured had asked the golgappa rehri wala to keep his rehri on the side at about 10.00 p.m and at that time accused persons were not present there and they came subsequently and according to the case of prosecution, quarrel had taken place at about 11.30 p.m. It is very strange. In this case the origin of the case is that when deceased asked the golgappa seller to keep his rehri on the side of road on the pretext that there might be jam on the road but the said fact could not be established on record in the circumstances, when PW1 Raju in his cross examination has admitted that there was no rush on the road on which there was sabji bazar at the time of incident. If there was no rush on road, then why the injured will ask the golgappe seller to keep his rehri on the side of road. Moreover, interestingly, the golgappa seller, who could have been the most natural witness to unfold the truth, was not produced and examined in this case. Further there is nothing on record to suggest that the IO had made sincere efforts to search the said golgappa seller and it is also not the case of prosecution that the said golgappa seller was seen for the first time in the said market alongwith his rehri.
Further according to PW1 & PW2 they took the injured (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.27 of pages 31 to DDU Hospital in the vehicle of nearby meat seller namely Mota, who is also the friend of PW1 Raju, but the said meat seller namely Mota has not been examined in this case. Further it is revealed from the record that there were many persons and shopkeepers were present at the spot but none of them was made as a witness. Moreover, PW1 has admitted in his cross examination that at the time of incident his four tenants were present at the house, which is nearby the place of incident, but none of the said tenants has been cited as a witness. Further more, admittedly there was a police booth near the spot of occurrence but police was not informed about the incident of 03.05.2011.
Further according to PW2 there was no superficial external injuries and she was not knowing that her husband had received some internal head injuries and doctor had sent him back from the hospital. She had also not told to the doctor anything regarding quarrel taken place on 03.05.2011. According to PW1 his father became unconscious due to head injuries, whereas, PW2 Smt. Savitri stated that when they returned from the hospital on 03.05.2011, her husband was in a position to talk. According to PW2 police recorded the statement of egg seller namely Zameel but said Zameel was neither cited as witness nor examined before the Court as witness. In the Site Plan, place of gogappa rehri has not been depicted, which is also fatal to the case of prosecution.
Further PW8 HC Surender Singh is the witness of arrest and conducting of personal search of accused persons but perusal of the relevant memos indicate that no independent public witness has been cited therein. Moreover, the fact that on the disclosure statements of accused persons, no date is mentioned, which creates further doubt about the veracity of the (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.28 of pages 31 disclosure statements of accused persons made by them on the relevant time. Further in his testimony PW1 has created a doubt about his presence at the house of accused Chander Prakash, when he has arrested, because the Arrest Memo bears the signature of PW1 as witness but in his cross examination, PW1 has categorically stated that he did not sign any document at the residence of accused Chander Prakash. He has signed three/five documents in the Police Station on 02.08.2011 and he does not know the contents of documents, which he had signed in the Police Station.
It is also important that according to PW5 SI Satish Kumar, on 07.05.2011, he contacted wife of injured, who produced two witnesses i.e. Zameel and Ram Dass claiming to be the eye witnesses of occurrence, who stated that there was a quarrel between Lachchi and two boys. Interestingly, the said two persons were neither been cited nor examined as the prosecution witness in this case. Further it is very strange that at the time of production of said two persons before PW5, PW2 Smt. Savitri had not given any whisper to the IO that her son i.e. PW1 Raju had also witnessed the incident.
Further according to PW2 she took her husband to DDU Hospital on 03.05.2011 and her husband Lachchi was not allowing the doctors to give vaccine since there was no superficial external injuries. Doctor sent Lachchi back to home from the hospital after having duly checked up. It means no blood oozed from the head of Lachchi nor there was any swelling there. Even it is not the case that he was having any pain on his head. The doctors had also not noticed any swelling on his head. Had there been any swelling on the head of her husband, PW2 must have noticed the same? Lachchi also did not inform the doctor about the sustaining of head injury, so his (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.29 of pages 31 wife i.e. PW2 or his son PW1 Raju or anyone else on 03.05.2011 which creates doubt about the receiving of head injury by the deceased on 03.05.2011. Further PW2 Smt. Savitri also stated that she did not tell the doctor at DDU Hospital regarding the quarrel of dated 03.05.2011. It creates doubt about the occurrence of quarrel.
Further perusal of the record reveals that in this case on 04.05.2011 on receipt of a telephonic information from Duty Officer to the effect that one injured Lachchi was admitted in DDU Hospital, SI Satish Kumar each at DDU Hospital, where he met PW2 Smt. Savitri (wife of injured Lachchi outside the Hospital) and on making inquiry she told that Lachchi had some quarrel in the market with someone. PW2 Savitri refused to accompany PW5 to the place of occurrence. PW5 stated that no one was found at the house of Lachchi and the persons, present outside the house of Lachchi, did not tell anything about the occurrence. On 05.05.2011 injured was unfit for statement. On that day, PW5 again met PW2 in the hospital but she refused to accompany PW5 to the place of occurrence. Again on 07.05.2011 PW5 went to DDU Hospital and met PW2 there and three other relatives and her son. They went to the place of occurrence with PW5, where PW2 produced two eye witnesses i.e. Jamil and Ram Dass before PW5. PW5 made inquiry from them and recorded their statements Ex.PW5/D & Ex.PW5/E respectively but at that time PW2 did not produce her son Raju to be as an eye witness of occurrence. No one stated that Raju was the eye witness. On 07.05.2011 Raju also did not state to PW5 that he was the eye witness and that he witnessed the occurrence. Said Jamil and Ram Dass did not tell about those two boys and simply stated that Lachchi had quarreled with two boys and they were not in a position to (SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.30 of pages 31 identify those two boys. PW7 Dr. Babita proved on record the MLC no.8497 dated 04.05.2011 of Lachchi and stated that on examination injury no.2 was simple in nature. She also stated that as per MLC, it is not certain that the avulsion of incisor was fresh or old. She further stated that if she consider both the injuries no.1 & 2, the patient can not be drowsy. PW7 also stated that it is possible that if a person is in heavily drunk condition, he could be in a state of drowsiness. She conceded that as per MLC, the injured was in state of understanding and he was in senses. Her said deposition also corroborates with the version of PW2 that injured was in senses. Further the TIP of the accused persons were not got conducted in this case in the circumstances where admittedly, accused persons were neither previously known to PW1 nor he had mentioned the physical description etc. in his first statement/complaint given to the IO.
10. In view of the aforesaid, both the accused persons namely Bhim Rattan and Chander Prakash are acquitted of the charges levelled against them. Their existing bail bonds are extended for a period of another six months in terms of the provisions of Sec.437(A) Cr.P.C.
11. File be consigned to Record Room after completion of necessary formalities.
(Announced in open Court (RAKESH KUMAR)
on 16 th Februar y, 2015) Addl. Sessions Judge/Special
Judge (NDPS) (West)
T is Hazar i Courts, Delhi
(SC No.58/2011) (State Vs. Bhim Rattan & Anr.) Page No.31 of pages 31