Delhi District Court
State vs Ram Kumar on 29 July, 2022
IN THE COURT OF MS. SHEFALI SHARMA
ADDL. SESSIONS JUDGE-02 ( NORTH )
ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 86/15)
(New Case No. 57689/2016)
FIR No. 397/2015
Police Station S.P. Badli
Charge sheet filed 279/304/201/34 IPC
Under Section
Charge framed Under 279/304/201/34 IPC
Section
State V/s Ram Kumar
S/o Sh. Pritam Singh
R/o Plot No. 11, B Block near Electric Power House
66 Foota Road, Bhagat Singh Park
Siraspur, Delhi
......Accused
Date of institution 07.07.2015
Date of arguments 11.07.2022 &
19.07.2022
Judgment Pronounced on 29.07.2022
Decision Conviction
State Vs. Ram Kumar Pages 1 of 44
FIR No. 397/2015 PS S.P. Badli
JUDGMENT
BRIEF FACTS
1. Briefly stated the events which set the prosecution story into motion are that deceased Lala Ram alongwith Suresh was working as labourers with accused Ram Kumar on his dumper/tempo for loading/unloading and filling of malba. On 30.03.2015 Lala Ram and accused went for the said job and reached at a vacant plot situated in the revenue estate of village Hamidpur in the area of PS Alipur to unload their last trip for the day. Accused Ram Kumar was reversing his vehicle rashly and speedily and hit deceased Lala Ram and caused severe injuries on his person. Injured Lala Ram was lifted with the help of Deepak and Chainpal and was taken away by accused Ram Kumar and co-accused Suresh on the pretext of taking him to hospital. However, they instead dumped the body of Lala Ram in the area of PS Kundli and washed his tempo to clean the blood and suppressed the incident from family members of deceased. The next morning on 31.03.2015, dead body of Lala Ram was found lying in the area of PS Kundli. CHARGE
2. After perusal of the charge-sheet, the documents, and hearing Ld. Additional P.P. for State and Ld. Counsel for the accused, accused Ram Kumar was charged for the offence punishable under Section 279/304/201/34 IPCon 22.09.2015 by Ld. Predecessor of this court, to which accused pleaded not guilty State Vs. Ram Kumar Pages 2 of 44 FIR No. 397/2015 PS S.P. Badli and claimed trial.
PROSECUTION EVIDENCE
3. To substantiate its case, the prosecution examined 27 witnesses in all as under:
PW1 is Sh. Raghubir who deposed that about five/six months back, his uncle (chacha) Lala Ram who was working as a labourer on the dumper of accused Ram Kumar went for work with him in the morning and returned in the afternoon at 4:00 pm for the admission of his daughter and thereafter on call from accused he again went on work with him. He further deposed that thereafter his uncle had not returned and at about 8:30 pm, his aunty (chachi) namely Shyam Kali came to his house inquiring about his uncle (chacha). His aunty told him that she had searched for his uncle Lala Ram and even visited house of accused where accused informed that accused had left his uncle Lala Ram after giving his due share of labour at Libaspur bus stand and asked them to search for him at some other place. PW1 deposed that they made search for Lala Ram but without success ultimately at 4:00 am, in the night missing report was lodged and they continued searching for Lala Ram but to no avail. On the next day one dead body was found in the area of PS Kundli, Haryana and they went to PS Kundli and had identified the dead body as of his uncle Lala Ram. He also deposed that on the next day, after postmortem examination of deceased Lala Ram the dead body was State Vs. Ram Kumar Pages 3 of 44 FIR No. 397/2015 PS S.P. Badli handed over to them and the dead body was cremated by them at Rana Park. He further deposed that he visited the police station S. P. Badli, where he met the labour of another vehicle, who had seen the incident, whose vehicle was also present in the plot at the time of the incident and they told him that accused Ram Kumar by reversing the dumper had hit his uncle Lala Ram, as a result of which, he suffered injuries and on the pretext of taking his uncle to hospital, his injured uncle was being shifted by accused in his vehicle and the labourer further told him that at that time, his uncle Lala Ram was alive, when his uncle was in injured condition shifted in the vehicle of accused by those labourers. He further deposed that accused instead of taking his uncle Lala Ram to the hospital thrown him in the bushes in the fields in Haryana because of which his uncle had died. statement of PW1 as Ex. PW1/A was recorded by the Haryana Police.
PW2 is Ms. Soni who is the daughter of deceased Lala Ram and deposed the same lines as PW1. She further stated that accused Ram Kumar had called his father again for work on his dumper but her father never returned. Making queries they went to the house of accused Ram Kumar who informed them he had left his father after work at Libaspur Chowk. A missing complaint was lodged and the next morning the dead body of her father whose face was badly damaged was found in the field of Kundi, Haryana.
State Vs. Ram Kumar Pages 4 of 44
FIR No. 397/2015 PS S.P. Badli
PW3 is Dr. Gaurav Rathee who deposed that on 01.04.2015 he alongwith Dr. Sushil Maniktaliya conducted the postmortem examination as Ex.PW3/A on the body of deceased Lala Ram s/o. Tota Ram, 45 years old male and also gave subsequent opinion dated 13.06.2015 as Ex.PW3/B. PW4 is Smt. Shyamkali who is the wife of the deceased Lala Ram and deposed the same lines. She further stated that her husband had gone alongwith accused Ram Kumar for doing the labour of laying the malba and had returned at around 4:00 pm for the admission of their daughter Neha and was again called by Ram Kumar for work and left the house alongwith Ram Kumar but when he did not return till 08:00 pm and his mobile phone was found switched off she went to the house of accused Ram Kumar who had informed them he had left her husband at Libaspur Bus Stand after paying his wages. She again reiterated that on the next day that the dead body of her husband was found at PS Kundli, Haryana. She stated that accused Ram Kumar had deliberately misled them and not disclosed the actual facts who had caused the death of her husband.
PW5 is HC Rajesh Kumar who deposed that on 01.04.2015 at about 7:40 a.m., SI Naresh PS Kundli, Sonepat, Haryana visited the police station and handed over the Zero FIR No.03/15 dated 31.03.2015 U/S. 302/201/364 IPC, PS Kundli and he recorded DD No.17A and attested copy of the same Ex.PW5/A. He deposed that on the same day at about 7:55 a.m. Inspector Naresh Malik after State Vs. Ram Kumar Pages 5 of 44 FIR No. 397/2015 PS S.P. Badli endorsing on the aforesaid Zero FIR Ex.PW5/B handed over the same to PW5 for registration of the FIR and PW5 registered the FIR as Ex.PW5/C and made endorsement on the Zero FIR Ex. PW5/D beneath the endorsement of Inspector Naresh Malik. DD No.18A was recorded as Ex.PW5/E and certificate under Section 65B of the Indian Evidence Act for the correctness of the FIR as Ex.PW5/F. PW6 is ASI Ajeet Singh alongwith his staff came at the spot at khasra no. 470, Hamidpur and had inspected the spot and prepared crime team report Ex. PW6/A and also videographed the spot.
PW7 is Sh. Deepak who deposed that on 30.03.2015, he was working as a labourer on the vehicle one Pramod for filling and shifting of Malba (concrete material) alongwith driver Chainpal @ Chainu and on that day, he alongwith Chainu lifted Malba from Mohan Villa, GT Road and shifted to Hamidpur. At about 8:00 pm, accused Ram Kumar was also lying Malba alongwith Lala Ram @ Tau and Suresh and came there with a truck/dumper with malba. He further deposed that Lala Ram @ Tau and Suresh got down from the dumper and accused Ram Kumar backed the said dumper with high speed and was in hurry and shouting sound came from the backside of the dumper and accused Ram Kumar laid the malba and told them that Lala Rama @ Tau suffered injuries and that he and Chainu saw that Lala Ram @ Tau was lying under the dumper of accused State Vs. Ram Kumar Pages 6 of 44 FIR No. 397/2015 PS S.P. Badli Ram Kumar to its backside to whom accused Ram Kumar caused injury on the face of Lala Ram @ Tau. Thereafter the said witness PW7 and Chainu shifted the injured Lala Ram in the dumper of Ram Kumar and thereafter accused Ram Kumar and Suresh had taken away injured Lala Ram @ Tau on the pretext of taking him to hospital in the said dumper. PW7 and Chainu also left the place after emptying their vehicle there. He deposed that on 01.04.2015, he and Chainu had shown the place of the incident to the IO at Village Hamidpur, where accused Ram Kumar had run over his truck on Lala Ram and IO prepared the site plan and got the spot photographed and blood stained soil was taken into possession and thereafter, he and Chainu accompanied the police to PS S. P. Badli, where the truck/dumper of accused Ram Kumar was standing and the said truck/dumper was also photographed and the expert team had also inspected the said truck. PW7 identified the 24 photographs as Ex. PW7/A to Ex. PW7/A24 being the photographs of the spot, blood stained shirt and the truck/dumper.
PW8 is Ct. Abhishek, who is crime team photographer and took the photographs of the place of occurrence from different angles and photographs Ex. PW7/A1 to PW7/A24 and negatives Ex. PW8/A1 to Ex. PW8/A24.
PW9 is HC Ramesh Kumar who deposed that on 21.03.2015 wife of the Lala Ram came to PS and lodged the missing report of her husband vide DD No.7A Ex.PW4/B. State Vs. Ram Kumar Pages 7 of 44 FIR No. 397/2015 PS S.P. Badli PW10 is Sh. Bharat who identified the dead body of deceased Lala Ram and his statement Ex. PW10/A. PW11 is Ms. Kranti @ Shanti who deposed the same lines as PW1. She further deposed that on the next day they came to know that accused Ram Kumar had threw the dead body of her father at somewhere in Haryana after killing him.
PW12 is HC Rajpal Singh who proved the entry in the register No. 19 vide serial No. 576A Ex. PW12/A and deposed that on 19.05.2015 the exhibits were transferred to PS S. P. Badli through PW20 SI Sachin vide RC No. 44/15 in sealed condition Ex. PW12/B. PW13 is SI Naresh Kumar who deposed that on 31.03.2015 he received an information that at Palla Tajpur Road, Jaati Khurd, near the canal, near Nasha Mukti Kendra, Kachcha rasta, one dead body was lying and thereafter he alongwith Ct. Krishan and other staff reached at the spot. PW13 took the photographs of the dead body from his mobile phone and called the FSL team and after some time one person namely Raghubir s/o Kali Charan reached at the spot and identified the said dead body as his uncle namely Lala Ram and PW13 recorded his statement Ex. PW1/A. Thereafter, PW13 prepared rukka Ex. PW13/A and handed over to Ct. Krishan and who registered Zero FIR Ex.
State Vs. Ram Kumar Pages 8 of 44
FIR No. 397/2015 PS S.P. Badli
PW13/B through duty officer ASI Rajbir Singh. The dead body was identified by PW21 Ashok S/o Laxman and PW10 Bharat S/o Badan Singh vide identification statement Ex. PW13/C and Ex. PW10/A respectively. The inquest proceedings Ex. PW13/D and after the postmortem, the dead body of deceased was handed over to the relatives. PW13 prepared the site plan of the place of recovery of the dead body Ex. PW13/E and form no. 25.35 Ex. PW13/F. After the postmortem, PW13 received the sealed exhibits and same was deposited with MHC (M), PS Kundli. He further deposed that on 01.04.2015, the information regarding the Zero FIR was sent to DCP, Outer District, New Delhi Ex. PW13/G and thereafter he got developed nine photographs Ex. PW4/C1 to Ex. PW4/C9 which were taken from his mobile phone. True copy of Zero FIR Ex. PW13/H and the same were handed over to DCP, Outer District vide RC No. 157 on 01.04.2015.
PW14 is Mr. Chain Pal @ Chainu who is the public witness, however, who deposed that he had not seen any incident and only saw some public persons and police officials on the spot. He had completely turned hostile to the case of the prosecution. His statement was Marked as Mark PW14/A. PW15 is Sh. Jagbir Singh who prepared crime scene visit report Ex. PW15/A in Zero FIR dated 31.03.2015 u/s 302/201/364 IPC of PS Kundli and handed over the same to IO.
State Vs. Ram Kumar Pages 9 of 44
FIR No. 397/2015 PS S.P. Badli
PW16 is ASI Virender Singh who seized the dumper make Tata 407 bearing registration No. HR-55N-7498 vide seizure memo Ex. PW16/A and arrested the accused and conducted his personal search vide arrest and personal search memo Ex. PW16/B and Ex. PW16/C respectively.
PW17 is Inspector Mahesh Kumar, Draftsman who prepared the scaled site plan Ex. PW17/A. PW18 is Ct. Rajbir who deposed that on 01.04.2015 he delivered the copy of FIR of the present case to the concerned Ld. MM and senior police officials.
PW19 is Sh. Roop Chand who is the landlord of deceased Lala Ram and accompanied the wife of deceased alongwith the other neighbours to the police station S. P. Badli to lodge the complaint as Lala Ram had not returned to his house.
PW20 is SI Sachin Mann who deposed that on instructions of IO on 27.04.2015 he joined the investigation and accompanied the draughtsman to the place of occurrence and also where the dead body was found at PS Kundli, Sonipat. The said draughtsman had taken measurements and prepared rough notes in his presence. That on 19.05.2015 he went to PS Kundli and collected the photographs of the place of the recovery of the dead body from SI Naresh of PS Kundli and also recorded his statement U/s 161 Cr.P.C. and handed over the same State Vs. Ram Kumar Pages 10 of 44 FIR No. 397/2015 PS S.P. Badli to the IO in the present case. He also took the postmortem report to the Autopsy Surgeon at Sonipal and obtained the subsequent opinion regarding the cause of death and inquest papers and on 19.05.2015, the aforesaid exhibits were transferred to PS S. P. Badli in sealed condition in the present case.
PW21 is Ashok who identified the dead body of deceased Lala Ram vide identification statement Ex. PW13/C. PW22 is SI Ajay Yadavwho deposed that he had joined the investigation of the present case with Inspector Mohar Singh and proved the documents i.e. seizure memo Ex. PW22/A, exhibits which were kept in separate plastic containers and sealed with the seal of NM and thereafer seized vide seizure memo Ex. PW22/B. Disclosure statement of accused Ex. PW22/C. He deposed that IO/Inspector Mohar Singh had kept the clothes in a cloth pulanda and the same was sealed with the seal of MSM and thereafter seized vide seizure memo Ex. PW22/D, pointing out memo at the instance of accused Ex. PW22/E. PW23 is Inspector Mohar Singh who deposed that on 02.04.2015 the further investigation of the present case was marked him and he alongwith SI Ajay Yadav, HC Rajesh and Ct. Balbir had joined the investigation and accused led them to his house no. 11, 66 futa road, Bhagat Singh Park and pointed out and got recovered one pant of navy blue colour and one shirt of light brown colour of accused which were worn by accused at the time of occurrence. PW23 seized the State Vs. Ram Kumar Pages 11 of 44 FIR No. 397/2015 PS S.P. Badli same vide seizure memo Ex. PW22/D and proved pointing out memo Ex. PW22/E. PW24 is Sh. Pramod Kumar who deposed that accused Ram Kumar is the registered owner of Dumper bearing registration no. HR-55N-7498 and during the course of investigation, on the basis of authority letter Ex. PW24/A, PW24 had moved an application for taking the aforesaid dumper on superdari and took the said dumper on superdari vide superdarinama Ex. PW24/B. PW25 is Inspector Naresh Malik who deposed that on 01.04.2015, he was posted as SHO, PS S. P. Badli and on that day, duty officer had produced copy of Zero FIR registered at PS Kundli for offence U/s 302/201/364 IPC which was received by him through SI Naresh of PS Kundli and thereafter made endorsement on the said FIR Ex. PW25/A and handed over the same to duty officer for registration of FIR and thereafter investigation of the present case was taken over by him. He deposed that SI Ajay Kumar, ASI Virender, Ct. Balbir and Ct. Baldev had joined the investigation with him and on that day, they went to the house of deceased Lala Ram situated at Bhagat Singh Road, Rana Park and there they met landlord Roop Chand and Smt. Shyam Kali. He further deposed that PW25 had interrogated accused Ram Kumar and seized the dumper no. HR-55N- 7498 Ex. PW16/A. Thereafter, the JCB machine was also called and the malba was got removed with the help of said JCB machine. FSL team was also called.
State Vs. Ram Kumar Pages 12 of 44
FIR No. 397/2015 PS S.P. Badli
With the help of FSL team, the blood stains were searched. The FSL team officials managed to search the blood stains. FSL officials had lifted the blood with the help of gauze. The blood stained earth control was also lifted and the earth control was also lifted. The said exhibits were kept in separate plastic containers and were sealed with the seal of NM and was seized vide seizure memo Ex. PW22/A in presence of PW22 SI Ajay Yadav. PW25 had prepared the rough site plan Ex. PW25/B. Thereafter, the crime team officials, FSL team, you accused and they all went to PS S. P. Badli. In the said PS, FSL Team had inspected dumper no. HR- 55N-7498. The FSL officials lifted the blood stains from two places from the said dumper with the help of cotton gauze and both the said exhibits were kept in separate plastic containers and were sealed with the seal of NM and was seized vide seizure memo Ex. PW22/B in the presence of PW22 SI Ajay Yadav. Crime team photographer also took photographs of the said dumper. PW25 had recorded the statement of witnesses including that of Deepak and Chain Pal @ Chainu as well as of other witnesses. PW25 had also effected the arrest of you accused Ram Kumar vide arrest memo PW16/B and conducted your personal search vide memo Ex. PW16/C. PW26 is Ms. Monika Chakravarty who examined the exhibits and prepared FSL report dated 13.10.2018 Ex. PW26/A. State Vs. Ram Kumar Pages 13 of 44 FIR No. 397/2015 PS S.P. Badli PW27 is Mr. Devender Kumar who mechanically inspected the dumper and prepared report already Ex. PW25/D. All the witnesses have been examined and thereafter PE was closed. STATEMENT OF ACCUSED
4. The statement of the accused was recorded under Section under Section 313 Cr.P.C., wherein he stated that he is innocent and has been falsely implicated in the present case. He deposed that though the dumper belongs to him, but he was never driving the said dumper on the date of alleged incident. In fact at the relevant date and time he was at his home and have been falsely implicated by the police officials to solve a blind case. He deposed that Lala Ram never working with him at his dumper at any point of time. The accused chose to lead evidence in his defence and produced 01 witness namely Sh. Anil Kumar in his defence. DEFENCE EVIDENCE
5. Sh. Anil Kumar has entered the witness box as DW1 and deposed that he was the tenant of accused Ram Kumar and on the given date and accused Ram Kumar was present at his house and had taken him to nearby clinic whereby he was medically treated. He deposed that accused is the owner of the dumper in question. In the cross conducted by Ld. Ld. APP, he was failed to show any prescription of any doctor regarding his medication or the specific ailment in which he was suffering and also failed to show any proof of his alleged tenancy State Vs. Ram Kumar Pages 14 of 44 FIR No. 397/2015 PS S.P. Badli with the accused in the relevant month of March 2015. ARGUMENTS
6. I have heard Ld. Additional PP for the State and Mr. V.D. Mishra, Ld. Counsel for the accused and perused the record.
7. It was argued by Ld. Additional PP that the allegations levelled against the accused are of serious nature and that the accused deserves to be convicted upon the charges framed. The prosecution through the testimony of the witnesses including the eyewitnesses, forensic expert and the witnesses related to the deceased vis a vis PW1, PW2, PW4 and PW11 has proved the case of the prosecution beyond reasonable doubt. That the defence laid by the accused on the plea alibi is sham and the testimony of DW1 is uprooted by the vigors of cross examination and hence the accused deserves to be convicted upon the charges framed.
8. Per Contra, Mr. V.D. Mishra, Ld. Counsel for accused has contended that the accused has been falsely implicated in this case. Both eyewitnesses PW7 & PW14 have turned hostile and not supported the case of the prosecution. That through the testimony of DW1 Anil Kumar who was the tenant of accused Ram Kumar, the accused has proved that he was not present at the spot on the date of incident. There is no motive to cause culpable homicide not amounting to murder State Vs. Ram Kumar Pages 15 of 44 FIR No. 397/2015 PS S.P. Badli which has been proved by the prosecution against the accused. There is no other cogent evidence which could prove the guilt of the accused beyond reasonable doubt and the accused deserves acquittal.
I have heard the Ld. Counsel for the accused and the Ld. Additional for the State at length and meticulously perused the record.
FINDINGS
9. At the very outset, it is pertinent to mention that co-accused Suresh remained not arrested and had been put in column No. 11(2) of the charge-sheet as he was evading his arrest and it was reported by the IO that efforts were being done to trace his whereabouts and as soon as accused Suresh could be apprehended a supplementary charge-sheet would be filed. It is pertinent to mention that the said accused Suresh remained non arrested till date and no further steps to either trace his whereabouts or for getting him proclaimed an absconder which may be taken by the SHO has been brought forth in the knowledge of this court and therefore henceforth findings are only qua the accused Ram Kumar and it is directed that the matter be revived, as per rules as and when the co-accused Suresh is apprehended.
10. The accused had been charged for the commission of offence punishable under Section 279/304/201/34IPC, which are reproduced as under:
State Vs. Ram Kumar Pages 16 of 44
FIR No. 397/2015 PS S.P. Badli
SECTION 279 IPC
"Rash driving or riding on a public way.--Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with im- prisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
SECTION 304 IPC "Punishment for culpable homicide not amounting to murder.
--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
SECTION 201 IPC "Causing disappearance of evidence of offence, or giving false information to screen offender.--Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.--and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment.-- and if the offence is punishable with imprisonment for any State Vs. Ram Kumar Pages 17 of 44 FIR No. 397/2015 PS S.P. Badli term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. Illustration A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine."
SECTION 34 IPC "Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone"
PRESUMPTION OF INNOCENCE
11. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
State Vs. Ram Kumar Pages 18 of 44
FIR No. 397/2015 PS S.P. Badli
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
12. Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
13. Briefly stated, story of the prosecution was that deceased Lala Ram alongwith Suresh was working as labourers with accused Ram Kumar on his dumper/tempo for loading/unloading and filling of malba. On 30.03.2015 Lala Ram and accused went for the said job and reached at a vacant plot situated in the revenue estate of village Hamidpur in the area of PS Alipur to unload their last trip for the day. Accused Ram Kumar was reversing his vehicle rashly and speedily and hit deceased Lala Ram and caused severe injuries on his person. Injured Lala Ram was lifted with the help of Deepak and Chainpal and was taken away by accused Ram Kumar and co-accused Suresh on the pretext of taking him to hospital. However, they instead dumped the body of Lala Ram in the area of PS Kundli and washed his tempo to clean the blood and suppressed the incident from State Vs. Ram Kumar Pages 19 of 44 FIR No. 397/2015 PS S.P. Badli family members of deceased. The next morning on 31.03.2015, dead body of Lala Ram was found lying in the area of PS Kundli.
14. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
MATERIAL WITNESSES
15. PW1 Sh. Raghubir deposed that few months ago from the date of his examination the deceased Lala Ram who is his uncle was working as a labourer on the dumper of accused Ram Kumar and went for work with him in the morning and came back in the afternoon around 04:00pm for the admission of his daughter but thereafter again on call of the accused Ram Kumar he again went to work with him and did not return till about 08:30 pm. He was informed by the wife of the deceased Lala Ram that she was unable to trace his uncle and both of them went looking for Lala Ram to the house of accused Ram Kumar who informed that he had left him at Libaspur Bus Stand after giving him his due share of labour. On the next day the dead body of Lala Ram was found in the area of PS Kundli, Haryana and after postmortem of the body was handed over to them for cremation. He further deposed that he met a labourer of another vehicle who had seen the incident and was present on the spot and told him that accused Ram Kumar while reversing his dumper had hit his uncle Lala Ram as a result of which State Vs. Ram Kumar Pages 20 of 44 FIR No. 397/2015 PS S.P. Badli he suffered injuries and on the pretext of taking him to the hospital the said labourer shifted his injured uncle Lala Ram in the vehicle of Ram Kumar but accused Ram Kumar and Suresh instead of taking to his uncle to the hospital had thrown him in the bushes in the field of Kundli area in Haryana.
PW2 Ms. Soni is the daughter of deceased Lala Ram who also deposed similar lines as that of the testimony of PW1 and categorically stated that the accused Ram Kumar had called his father again for work on his dumper but her father never returned. Making queries they went to the house of accused Ram Kumar who informed them he had left his father after work at Libaspur Chowk. A missing complaint was lodged and the next morning the dead body of her father whose face was badly damaged was found in the field of Kundi, Haryana.
PW4 Smt. Shyam Kali wife of deceased also deposed on the similar lines and stated that her husband had gone alongwith accused Ram Kumar for doing the labour of laying the malba and had returned at around 4:00 pm for the admission of their daughter Neha and was again called by Ram Kumar for work and left the house alongwith Ram Kumar but when he did not return till 08:00 pm and his mobile phone was found switched off she went to the house of accused Ram Kumar who had informed them he had left her husband at Libaspur Bus Stand after paying his wages. She again reiterated that on the next day that the dead body of her husband was found at PS Kundli, Haryana. She stated that State Vs. Ram Kumar Pages 21 of 44 FIR No. 397/2015 PS S.P. Badli accused Ram Kumar had deliberately misled them and not disclosed the actual facts who had caused the death of her husband.
Also PW11 another daughter of deceased deposed on similar lines. She further deposed that on the next day they came to know that accused Ram Kumar had threw the dead body of her father at somewhere in Haryana after killing him.
From the testimony of aforesaid witnesses prosecution has proved beyond reasonable doubt that deceased Lala Ram was last seen with accused Ram Kumar who had taken him along for work of loading/uploading the malba from his house.
16. Last seen theory means the time when two persons were seen together and later it is found that one of them is dead and other is alive. The time gap of the person seen together and the person found dead is important. If the time gap is short the presumption as to the person who caused the death goes to the person whose alive and who was last seen together and it is for him to explain otherwise. The time span should be such that it rules out of the risk somebody else committing the crime. It is a piece of circumstantial of evidence which should be backed by some cogent evidence establishing link between the accused and the crime.
State Vs. Ram Kumar Pages 22 of 44
FIR No. 397/2015 PS S.P. Badli
In Madho Singh Vs. State of Rajasthan 2003 (2) crime 111 (SC) Hon'ble Supreme Court held that:
"the last seen together has to be applied cautiously and in such a prudent manner that unless the court get some circumstantial or corroborating evidence the accused should not be convicted on the basis of last seen theory done if the accused provides such a chain of evidence that benefit of doubt arises.
Nizam Vs. State of Rajasthan decided on 04.09.2015 Hon'ble Supreme Court relying on State of Rajasthan Vs. Kashiram (2006) 12 SCC 254 held as under:
"Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:- "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his State Vs. Ram Kumar Pages 23 of 44 FIR No. 397/2015 PS S.P. Badli innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)" The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319."
17. Coming to the case in hand vide the testimony of PW1, PW2, PW4 and PW11 the prosecution has been able to establish that on 30.3.2015 around 04:00 pm the deceased was taken by the accused Ram Kumar for work on his dumper and they both left together. Thereafter, the deceased Lala Ram did not return and his dead body was found the next day in the bushes of the field of PS Kundli, Haryana. However, before coming to any conclusion, this court now proceeds to delve upon the other evidence adduced by the prosecution cautiously. EYEWITNESSES
18. PW7 Sh. Deepak he deposed that as under:
"On 30.03.2015 I was working as a labourer on the vehicle of Pramod for filling and shifting of Malba(concrete material) along with driver Chainpal @ Chainu. On that day, I along with Chainu lifted Malba from Mohan Villa, GT Road and shifted the Malba to Hamidpur. Pramod had went to take payment. One tyre of our vehicle stuck in the pit and I along with Chainu were trying to take out the our vehicle and at that time at about 8.00 p.m. accused Ram Kumar, present in the court today (correctly identified) was also lying Malba along with his labour Lala Ram @ Tau (since deceased) and Suresh and they all came there with a truck/dumper with Malba driven by accused Ram Kumar. Lala Ram @ Tau and Suresh got down from the dumper and accused Ram Kumar backed the said dumper with high speed and accused Ram Kumar was in hurry and the shouting sound came from the backside of the dumper of Ram Kumar and accused Ram Kumar laid the Malba and told us that Lala Ram @ Tau State Vs. Ram Kumar Pages 24 of 44 FIR No. 397/2015 PS S.P. Badli suffered injuries. I and Chainu saw that Lala Ram @ Tau was lying under the dumper of Ram Kumar to its backside to whom Ram Kumar caused much injuries and we saw that there was much injury on the face of Lala Ram @ Tau and on the asking of accused Ram Kumar to shift Lala Ram @ Tau to hospital, I and Chainu shifted injured Lala Ram @Tau to the dumper of Ram Kumar and accused Ram Kumar with Suresh had taken away injured Lala Ram @ Tau on the pretext of taking Lala Ram to hospital in the said dumper. We also left the place after emepting our vehicle there. On 01.04.2015 I and Chainu had shown the place of the incident to the IO at Village Hamidpur where the accused Ram Kumar had run over his truck on Lala Ram and 10 prepared the site plan and got the spot photographed and blood stained soil was taken into possession and thereafter, I and Chainu accompanied the police to PS S.P. Badli where the truck/dumper of accused Ram Kumar was standing and the said truck/dumper was also photographed and the expert team had also inspected the said truck with the help of powder, cotton and some Gas like substance and blood stains were found on the said truck. At this stage, witness identified the 24 photographs Ex. PW7/A-1 to A-24 being the photographs of the spot, blood stained shirt and the truck/dumper. My statement was recorded."
19. In his cross-examination conducted on 17.11.2017 i.e. after a gap of 1 year 8 months the said witness stated that he had not seen the accident as he was at some distance. His cross-examination is reproduced as under:
"I had not heard whether accused Ram Kumar had told that all the persons who were standing behind the truck as he was going to reverse the truck as I was standing at a far distance. It is correct that he blow the horn twice. It is wrong to suggest that after the incident many public persons gathered at the spot. Vol. Only 5-7 persons gathered at the spot. It is correct that I had not seen the accident as I was at a distance. IO obtained my signatures on the papers which were written as well as blank. It is wrong to suggest that I am deposing falsely."
State Vs. Ram Kumar Pages 25 of 44
FIR No. 397/2015 PS S.P. Badli
20. However it is pertinent to mention that not a single suggestion or a question in cross-examination was put to the said witness by the Counsel for the accused despite due opportunity that the accused Ram Kumar was not present on the spot or he was not driving and that he was not reversing his dumper in rash or negligent manner. There is no question put to the said witness which could discredit his version recorded in the chief examination on the point that the said witness PW7 and one Chainu @ Chain Pal PW14 shifted the injured to the dumper of Ram Kumar and the accused Ram Kumar with Suresh (since not arrested) had taken away the injured on the pretext of taking him to the hospital. Even if it is assumed for a moment that the said witness did not see the accident as he was standing at a far of distance as stated by him in his cross-examination dated 17.11.2017 recorded after a gap of more than 1 ½ years from his examination in chief, the presence of the accused on the spot, the fact that he was reversing his dumper and the injured (now deceased) Lala Ram sustained injuries and was shifted in dumper of accused and the accused alongwith one Suresh had taken away Lala Ram in an injured condition on the pretext of taking him to the hospital have not been disputed by the said witness.
21. In the recent judgment titled as Rajesh Yadav Vs. State of UP, Supreme Court decided on 04.02.2022 by the Hon'ble Supreme Court in Crl.
State Vs. Ram Kumar Pages 26 of 44
FIR No. 397/2015 PS S.P. Badli
Appeal No. 339-340 of 2014 held as under:
"21.The expression "hostile witness" does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion.
22. The Hon'ble Supreme Court had relied on the law laid down in dealing with the testimony of a witness over an issue as held in the case of C. Muniappan v. State of T.N., (2010) 9 SCC 567:
"81. It is settled legal proposition that:
"6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof." (Vide Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233, Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 and Khujji v. State of M.P., (1991) State Vs. Ram Kumar Pages 27 of 44 FIR No. 397/2015 PS S.P. Badli 3 SCC 627, SCC p. 635, para 6.) In the case of State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360: 1996 SCC (Cri) 1278] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon.
A similar view has been reiterated by the Hon'ble Supreme Court in catena of judgments viz. Balu Sonba Shinde v. State of Maharashtra [(2002) 7 SCC 543: 2003 SCC (Cri) 112], Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516: (2008) 1 SCC (Cri) 109], Radha Mohan Singh v. State of U.P. [(2006)
2 SCC 450: (2006) 1 SCC (Cri) 661], Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188] and Subbu Singh v. State [(2009) 6 SCC 462: (2009) 2 SCC (Cri) 1106].
Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
23. In the case titled as Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 had already dealt with a situation where a witness after rendering testimony in line with the prosecution's version, completely abandoned it, in view of the long adjournments given permitting an act of maneuvering. While taking note of such situations occurring with regularity, it expressed its anguish and observed that:
"51. It is necessary, though painful, to note that PW 7 was State Vs. Ram Kumar Pages 28 of 44 FIR No. 397/2015 PS S.P. Badli examined-in- chief on 30-9-1999 and was cross-examined on 25- 5-2001, almost after 1 year and 8 months. The delay in said cross-examination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence and the prosecution as well as to the victim.
24. In the present case reading the evidence in entirety, PW 7's evidence cannot be brushed aside. The delay in cross-examination has resulted in his prevarication from the examination-in-chief. But his examination- in-chief and the re-examination impels us to accept the testimony of PW7 on material aspects.
25. From the testimony of PW7 it is proved by the prosecution that the accused Ram Kumar was very much present on the spot on 30.03.2015. The factum of Ram Kumar driving the dumper with high speed and accused being in a hurry is also not resiled from by the said witness. The fact that he and one Chenu shifted the injured Lala Ram to the dumper of Ram Kumar and the fact that accused Ram Kumar alongwith Suresh (who remained not arrested) had taken away the injured Lala Ram on the pretext of going to the hospital is also not disputed. He also correctly identified the photographs PW7/A-1 to A-24 being the photographs, blood stain shirt and dumper in question.
26. Further, vide the testimony of PW24 who is the real brother of the accused, the prosecution has proved that it is accused who is the registered owner of the dumper in question bearing No. HR-55N-7498. The accused Ram Kumar has despite opportunity not disputed the identity of the said dumper and infact in response to a question put at the time of recording his statement U/s 313 Cr.P.C.
State Vs. Ram Kumar Pages 29 of 44
FIR No. 397/2015 PS S.P. Badli
categorically admitted that the dumper in question belonged to him.
27. Further, PW27 retired ASI Devender Kumar had proved the mechanical inspection report of the said dumper Ex. PW25/D and had categorically stated upon examination that there was no mechanical defect and the vehicle was fit for road test.
Moving forward, I shall now delve upon the forensic/scientific evidence produced by the prosecution.
FORENSIC/SCIENTIFIC EVIDENCE
28. Through the testimony of PW6 ASI Ajeet Singh, Incharge, Crime Branch it was proved by the prosecution that from the debris which was removed from the spot of incident i.e. Khasra No. 471, Village-Humidpur with the help of JCB machine, blood was found. The FSL team also traced the blood stains from the spot and the crime report is proved as Ex. PW6/A. From the FSL report Ex. PW26/A the gauze cloth piece containing brown blood stains from the place of incident were found to have similar DNA profile with that of the wooden piece of the trackter/dumper found near the dead body at village PS Kundli. The blood stains from the spot of incident further corroborate the factum of the injuries sustained due to rash driving of the dumper.
29. Despite due opportunity to cross examine, testimony of PW6 remained unrebutted and unimpeached. His testimony was further corroborated by State Vs. Ram Kumar Pages 30 of 44 FIR No. 397/2015 PS S.P. Badli the testimony of PW8 who proved 24 photographs of the place of incident I.,e. Village Hamidpur at Khasra No. 470 Ex. PW7/A1 to A24 and there negatives PW8/A1 to A24.
30. PW22 SI Ajay Yadav further deposed that he joined the investigation with Inspector Mohar Singh and proved the seizure memo Ex. PW22/A, exhibits which were kept in separate plastic containers seized vide seizure memo Ex. PW22/B, disclosure statement of accused Ex. PW22/C. IO/Inspector Mohar Singh had kept the clothes in a cloth pulanda and seized the same vide seizure memo Ex. PW22/D, pointing out memo at the instance of accused Ex. PW22/E.
31. As regards the scientific evidence obtained by the mobile crime forensic unit at PS Kundli, Sonipat where the dead body of Lala Ram was found, PW15 has categorically deposed that on 31.03.2015 he was working as a Scientific Assistant/Scene of Crime Mobile Forensic Unit, Sonipat and on the request of the IO SI Naresh Kumar of PS Kundli visited the spot in the crop field of village Khurd where the dead body of the deceased Lala Ram was found who was duly identified by his relatives later. The crime scene visit report Ex. PW15/A in the Zero FIR dated 31.03.2015 of PS Kundli. Despite opportunity the said witness was not cross examined by the accused.
32. From the FSL report proved Ex. PW26/A it transpires that DNA profile generated from the source i.e. gauze cloth piece having blood stains from State Vs. Ram Kumar Pages 31 of 44 FIR No. 397/2015 PS S.P. Badli the place of incident was found (Ex.3) similar to the DNA profile generated from the wooden piece (Ex.8) found near the dead body at Kundli. Also, blood had been seized from the right inner wall of the vehicle Ex. 1 which corroborates that the injured had been taken in the dumper of the accused and the wooden piece which is undisputedly part of the dumper was also found near the dead body.
33. Thus, from the prosecution evidence it has been proved beyond reasonable doubt that accused Ram Kumar and accused Suresh (not arrested) had taken in injured Lala Ram in their dumper from the spot of incident. The next day dead body of Lala Ram was found from the fields of PS Kundli. Since it was in the knowledge only of the accused persons Ram Kumar and Suresh (not arrested) as to what happened after they had left the spot of incident taking injured Lala Ram in their dumper, it was incumbent upon the accused persons to show or explain what happened thereafter as the said facts were especially within their knowledge. For this reliance is placed on the case of Balbir Singh Vs. State decided by Hon'ble High Court on 11.03.2010 wherein it was laid down that it is a settled legal position regarding 106 of the Indian Evidence Act as considered at length by the Hon'ble Supreme Court in the landmark judgment of Shambhu Nath Mehra Vs. State of Ajmer AIR 1956 SC 404 where in it was observed as under:
"This lays down the general rule that in a criminal case the State Vs. Ram Kumar Pages 32 of 44 FIR No. 397/2015 PS S.P. Badli burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially"
within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor A.I.R. 1936 P.C. 169 and Seneviratne v. R. [1936] 3 All E.R. 36, 49".
34. It was held by the Hon'ble High Court of Delhi that this is a Section which must be considered in a commonsense way and the balance of convenience and disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration.
35. Further, State of West Bengal Vs. Mir Mohd. AIR 2000 Supreme Court 2988 wherein it is observed that:
"51. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the State Vs. Ram Kumar Pages 33 of 44 FIR No. 397/2015 PS S.P. Badli prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. In this case, when prosecution succeeded in establishing the afore narr When it is proved to the satisfaction of the court that Mahated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in condition such as this.
Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody."
"54.The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to State Vs. Ram Kumar Pages 34 of 44 FIR No. 397/2015 PS S.P. Badli draw a different inference."
POSTMORTEM REPORT
36. The postmortem report was proved by the testimony of PW3 Dr. Gaurav Rathee who vide his postmortem report dated 01.04.2015 bearing PM no. 04/GR/2015 proved as Ex. PW3/A opined that the cause of death was due to shock and haemorrhage due to the injuries described in the postmortem report the injuries were all antemortum in nature and sufficient to cause death in normal course of nature.
The dead body was further handed over for the subsequent opinion on the following points and the subsequent opinion is proved as Ex. PW3/B which is being summarized herein for the sake of clarity:
Point No. 1 Whether the injuries mentioned in the postmortem report can be possible to have been inflicted by the tempo as per the manner mentioned above (i.e. while reversing the back the tempo/dumper) Opinion : The possibility of injuries described in the postmortem report being inflicted by the tempo as per the manner described cannot be ruled out.
Point No. 2 : Whether any person sustaining such bodily injuries from such a heavy vehicle and in a manner as alleged, in normal course can any State Vs. Ram Kumar Pages 35 of 44 FIR No. 397/2015 PS S.P. Badli person survive after being inflicted such injuries or otherwise.
Opinion: If all the injuries described in the PMR occurred at once it is highly unlikely to survive for the person in normal course of nature.
Point No. 3: Whether it is possible in normal course after being hit by such a heavy vehicle the upper jaw, nose and eyes of a person could be found missing/damaged as provided in the PM report.
Opinion: Possibility of the organs injured (upper jaw, nose and eyes) being damaged/missing cannot be ruled out.
37. Thus, from the subsequent opinion on the PM report proved as Ex. PW3/B it transpires that the person after sustaining such bodily injuries from such a heavy vehicles hit by the reversing of tempo/dumper was highly unlikely to survive in the normal course. The probable time that lapsed between the injury caused due to the dumper and death had been left as variable in the postmortem report Ex. PW3/A. In the examination in chief explaining the concept of variable time gap the concerned doctor/PW3 categorically deposed that the same could be few minutes or few hours and the exact duration cannot be ascertained. The relevant portion of his examination in chief is reproduced for the sake of clarity "shock and haemorrhage due to the injuries described in the postmortem report. All the injuries were ante mortem in nature and sufficient to cause death in normal course of nature" and "time elapsed between injury and death as variable State Vs. Ram Kumar Pages 36 of 44 FIR No. 397/2015 PS S.P. Badli and they may be few minutes or few hours and exact duration cannot be ascertained".
38. From the aforesaid discussion so far thus it can be safely opined that the prosecution has proved beyond reasonable doubt the following:
(a) On the date of incident the deceased was last seen with the accused by the family members and taken by the accused Ram Kumar for work on his dumper and they both left together.
(b) The factum of Ram Kumar being present on the spot of incident.
(c) The factum of Ram Kumar being the registered owner of the offending vehicle
(d) The factum of Ram Kumar reversing the dumper with high speed and in a negligent manner.
(e) Lala Ram sustaining injuries.
(f) That Lala Ram shifted to the dumper of Ram Kumar and
Suresh who left the spot on the pretext of taking the injured Lala Ram to the hospital.
39. But now the second limb of the prosecution story derives attention i.e. as to whether the prosecution has been successful in proving the guilt of the accused qua the Section 304 IPC.
It was the story of the prosecution that after being taken in an injured condition by the accused Ram Kumar and co-accused Suresh (not arrested), the accused persons dumped the injured in the fields of the land at PS Kundli with the knowledge that the act of dumping committed by both of them and leaving the injured there in such condition is so imminently dangerous that it must in all State Vs. Ram Kumar Pages 37 of 44 FIR No. 397/2015 PS S.P. Badli probability cause death and thus charged for culpable homicide not amounting to murder.
40. At this stage, attention is drawn to the postulates of Section 304 IPC when culpable homicide is not murder. The most important consideration upon convicting an accused under Section 304IPC is that the intention or knowledge with which the act which caused death was done. The intention to cause death or the knowledge that death will probably be caused is essential to be proved beyond reasonable doubt and it is of utmost importance as laid down in the case of Mahadev Prasad Kaushik Vs. State of UP & Anr. decided by the Hon'ble Supreme Court on 17.10.2018 that no conviction ought to take place unless such intention or knowledge can from the evidence be concluded to have really existed......the same can be ascertained only for external and visible acts of the accused and it has to be established that the death must have been caused by the act of accused.
"29. There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section
300. Where intention or knowledge is the `motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where State Vs. Ram Kumar Pages 38 of 44 FIR No. 397/2015 PS S.P. Badli there is neither intention to cause death nor knowledge that the act in all probability will cause death."
41. In the present case as per the postmortem report discussed above proved Ex. PW3/A and the subsequent opinion Ex. PW3/B relied by the prosecution itself the cause of death was the injury sustained due to the rash reversing of the tempo/dumper as is reflected in the opinion on point 2 reiterated as follows: If all the injuries described in the PMR occurred at once it is highly unlikely to survive for the person in normal course of nature. Death of the accused in the present case has taken place owing to the injuries sustained by him by being hit by the reversing dumper as is amply clear from the postmortem report and its subsequent opinion relied by the prosecution itself.
42. However, the presence of the dumper in question on the spot where the dead body was recovered assumes importance. The prosecution had relied upon one wooden piece Ex.8 which was recovered from the place Kundli and the blood from the source Ex.3 obtained from the place of incident. Although presence of the dumper at the place where the dead body was found stands established but no finger prints of accused Ram Kumar has been lifted from the spot where the dead body was found by the FSL team.
43. Also, it is the case of the prosecution itself that there was another co- accused Suresh (who was never arrested) who had gone alongwith the accused State Vs. Ram Kumar Pages 39 of 44 FIR No. 397/2015 PS S.P. Badli Ram Kumar in the tempo. The possibility of Suresh dumping the injured can also not be ruled out and the prosecution had failed to prove the specific knowledge and role which could be attributed to the accused Ram Kumar in the act of alleged dumping.
44. There is no ocular evidence which has been produced by the prosecution who could prove the act and even the chain of circumstantial evidence stands broken since the possibility of Suresh dumping the injured can not be ruled out or the fact that in all probabilities the accused must have succumbed to the injuries sustained by reversing the dumper and only with the intention to screen himself from legal punishment accused persons dumped the deceased. No finger prints of the accused Ram Kumar have been lifted from the spot where the dead body was found by the FSL team. As per postmortem Ex. PW3/A it was highly improbable for a person to survive after the nature of injuries caused with the accident itself. Prosecution had relied upon the one wooden piece which was recovered and the blood from the source Ex.3 from the place of incident matched with that wooden piece Ex.8 but it is of no help to the prosecution to prove the guilt of the accused as the specific knowledge of doing an act as charged with U/s 304 IPC could not be proved beyond reasonable doubt. At most it proves that the dumper of the accused was probably at the spot but from the appreciation of evidence and the legal postulates required to hold the State Vs. Ram Kumar Pages 40 of 44 FIR No. 397/2015 PS S.P. Badli accused guilty U/s 304 IPC the possibility that at most the accused must have tried to fabricate or destroy evidence to screen himself cannot be ruled out and thus his act at most stands covered under Section 201 IPC and the specific knowledge and intention required to bring home the guilt of the accused under Section 304 IPC could not be proved by the prosecution beyond reasonable doubt as the chain of events gets broken and other possibilities as discussed above cannot be ruled out.
Reliance in Ramesh Bhai & Anr. Vs. Sate of Rajasthan in Crl. Appeal No. 868-869 of 2004 passed by Hon'ble Supreme Court held that:
"6. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
7. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC
79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain State Vs. Ram Kumar Pages 41 of 44 FIR No. 397/2015 PS S.P. Badli conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
11. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
12. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
State Vs. Ram Kumar Pages 42 of 44
FIR No. 397/2015 PS S.P. Badli
45. The accused had taken a sham defence and also stated in his statement U/s 313 Cr.P.C. that he was not driving the said dumper and on the relevant date and time he was at his home and thus taken the plea of alibi and DW1 Anil Kumar had deposed that he was the tenant of accused Ram Kumar and on the given date accused Ram Kumar was present at his house and had taken him to nearby clinic whereby DW was medically treated. But the said witness could not stand the vigors of cross examination. He failed to prove any prescription of any doctor regarding his medication or the specific ailment in which he was suffering. He even failed to show any proof of his alleged tenancy with the accused in the relevant month of March 2015. On specific question he was even unable to recollect the name of the doctor. Thus, the accused had put up a sham defence of plea of alibi.
CONCLUSION
46. In the light of my discussion above, the testimony of prosecution witnesses are found to be trustworthy and reliable, and the prosecution has succeeded in proving beyond reasonable doubt on the given date the accused had taken away the deceased for the purpose of loading/uploading malba and while rashly and negligently reversing the said tempo/dumper he inflicted injuries on the person of Lala Ram which was sufficient to have caused death and he alongwith co-accused Suresh lifted the deceased Lala Ram on the pretext of taking him State Vs. Ram Kumar Pages 43 of 44 FIR No. 397/2015 PS S.P. Badli hospital with purpose of screening themselves and to destroy evidence and dumped his body in the fields of PS Kundli. Thus, the guilt of the accused stands proved and he is held guilty of having committed an offence as described under Section 279/304A/201 IPC.
47. Accordingly, the accused Ram Kumar S/o Sh. Pritam Singh is convicted for the offences punishable under Section 279/304A/201 IPC.
48. Copy of the judgment running into 44 pages be provided to the accused free of cost.
49. Matter be listed for arguments on the quantum of sentence on 03.09.2022. In the meanwhile, the convict and the Ld. Addl. PP for the State are directed to file their respective affidavits in terms of the judgment of the Hon'ble High Court of Delhi titled as Karan Vs. State of NCT of Delhi Criminal Appeal No. 352/2020 decided on 27.11.2020.
Dictated and announced in the open (Shefali Sharma) Court on 29.07.2022 Additional Session Judge-02 (running in 44 pages) (North), Rohini Courts/Delhi State Vs. Ram Kumar Pages 44 of 44 FIR No. 397/2015 PS S.P. Badli