Delhi District Court
State vs Rakesh Kumar @ Sonu on 25 November, 2014
IN THE COURT OF SH. SANDEEP YADAV, ADDITIONAL SESSIONS JUDGE5, SOUTH DISTRICT, SAKET COURTS, NEW DELHI SC No. 67/14 ID No. 02403R0222402010 FIR No. 38/10 PS. Vasant Kunj (South) U/s. 452/342/436/307 IPC State Versus Rakesh Kumar @ Sonu s/o. Sh. Ishwar Singh r/o. Near Farm House of Raj Singh Green Avenue Lane Vasant Kunj New Delhi Date of Institution : 10.05.2010 Final arguments heard on : 14.11.2014 Judgment pronounced on : 25.11.2014 Judgment : Convicted JUDGMENT
The FIR in this case was registered on the statement of Sh. Lal Bahadur. The gist of statement of Sh. Lal Bahadur which is the basis of FIR may be noted down as under: St. Vs. Rakesh Kumar @ Sonu 1/30 FIR No. 38/10
1. Complainant Sh. Lal Bahadur was residing at Raj Singh Farm House, Green Avenue Lane, Opposite Lever Hospital, Vasant Kunj, New Delhi. The owner of the farm house has given the complainant the task of taking care of the farm house. He was provided a room for his residence. One computer and a fridge of accused Sonu was kept two and half months before the registration of FIR in the small room adjacent to the room of the complainant. The key of the aforesaid small room was given by the owner of the farm house to the complainant with the instruction to open the lock of the small room as and when accused Sonu has to take out any article from small room. Both complainant and accused were running their separate tea shops near the farm house. Accused Sonu has told complainant many a times that he will not allow the complainant to live in the farm house and on this issue there had been frequent scuffles between complainant and accused. On 07.02.2010 accused came to the complainant at about 10.00 PM and switched off the mobile phone of the complainant. Thereafter, accused Sonu took out a knife from the pocket of his trouser and attacked the complainant on his neck with knife. Complainant asked accused about the cause of the assault, accused stated that he is going to kill complainant as he is a hurdle in his path. After receiving the knife injuries, the complainant picked up an iron rod from his room and thereafter Sonu opened the door of the room and came out and bolted the room from outside. Complainant saw that accused had brought a Gas Cylinder and has kept St. Vs. Rakesh Kumar @ Sonu 2/30 FIR No. 38/10 the same outside the door of the room. Accused opened the gas cylinder and put the pipe of the cylinder inside the room and inserted the same through the small space under the door of the room. Accused started breaking the windows of the room. Thereafter, accused went to his tea shop and brought a cane filled with a flammable liquid and poured the oil like substance through the window into the room. After that, accused lighted the match box stick and threw the same in the room for setting the room on fire. Fire spread in the room immediately and the walls of the room fell down. Complainant somehow managed to escape, came out and found that his clothes had got fire. Thereafter, complainant reached the nearby farm house (Jindal Farm House) and informed Ram Mehar, the guard posted at Jindal Farm House about the incident. Ram Mehar informed the police on 100 number and PCR van reached the spot after some time. The PCR van took the complainant to Trauma Centre AIIMS. Complainant stated that Sonu who was very well known to him has attacked him with intention to kill him.
2. The information about the incident was received in PS Vasant Kunj South vide DD no. 6A on 08.02.2010 at about 2.20 PM. On receipt of DD no. 6A, SI Dharmpal, Ct. Vikram reached Raj Singh Farm House, Green Avenue Lane, Vasant Kunj, New Delhi. When the police officials reached the farm house, fire has been doused and they found that all the articles in the room near the entrance to the farm house had been burnt. Police officials further noticed that outside wall of both the St. Vs. Rakesh Kumar @ Sonu 3/30 FIR No. 38/10 rooms had fallen down and the smell of diesel / kerosene was coming from the room. Even the roof of the room has fallen down and no eye witness was found at the spot. Police officials came to know that injured has been taken by the PCR officials to hospital. At about 3.45 PM, SI Dharmpal received DD no. 7A through which he came to know that one Lal Bahadur has been stabbed and has been admitted at JP Trauma Centre. SI Dharmpal left Ct. Vikram at the spot and reached JP Trauma Centre. The doctor on duty declared Lal Bahadur fit for statement and then statement of complainant was recorded. SI Dharampal came back to the spot and seized the rod and burnt clothes of injured Lal Bahadur. Crime Team was called at the spot and photographs of the spot were taken. Crime Team prepared the report and handed over same to Investigation Officer. Investigation Officer lifted the blood sample from the floor and samples of the liquid spread in the room and other exhibits from the room. The statement of owner of Raj Singh farm house was recorded U/s. 161 Cr.P.C. The exhibits/samples lifted from the spot were sealed by the police and IO deposited the same in the malkhana. On 09.02.2010 SI Dharmpal received a secret information that Rakesh @ Sonu will come to take his motorcycle which is parked at his tea shop. After receiving this information, SI Dharampal along with Ct. Gajanand went to the tea shop near Raj Singh Farm House. At about 8.15 pm, Rakesh @ Sonu came there to collect his motorcycle and he was apprehended. From the search of accused, one slip of Burn and Plastic St. Vs. Rakesh Kumar @ Sonu 4/30 FIR No. 38/10 Department of Safdarjung Hospital was recovered, accused disclosed that during explosion, he also sustained burn injuries on his face and got himself treated in Safdarjung Hospital after the incident. In his disclosure statement, accused Rakesh @ Sonu admitted his involvement in the crime and got recovered blood stained knife from the room of farm house. Accused also got recovered domestic gas cylinder, regulator and pipe from his tea shop by which he had spread the gas in the room of complainant/injured. Accused also got recovered two plastic canes from near the place of occurrence by which he had thrown the diesel in the room of complainant. Accused also got recovered from outside of room of the farm house one small gas cylinder along with regulator and pipe by saying that he has spread the gas with the help of small gas cylinder in the room of complainant. Investigating Officer obtained MLC of injured from JPN Trauma Centre and doctor described the injury as grievous. Exhibits lifted from spot, were sent for opinion to FSL, Rohini. After completion of investigation, charge sheet u/s. 452/342/436//307 IPC against accused was filed in the Court. The Court framed charge u/s. 307/342/436/452 IPC against the accused on 15.02.11. Accused pleaded not guilty and claimed trial.
3. I have heard learned Public Prosecutor for the State as well as Mr. Rajiv Jain, Counsel for accused (Amicus Curiae) at length and carefully perused the record.
4. Prosecution examined 14 witnesses to prove the charge against St. Vs. Rakesh Kumar @ Sonu 5/30 FIR No. 38/10 accused. Statement of accused was recorded u/s. 313 Cr.PC. In his statement u/s. 313 Cr.PC, accused stated that he and Lal Bahadur, were living in the same Farm House and Lal Bahadur gave his deposition because of his imagination in his mind. Accused further stated that he got burn injuries while cooking food and had gone to Safdarjung Hospital. Accused stated that he had not caused any injury to any person at any point of time. Accused further stated that PW1 Lal Bahadur was on inimical terms with him on account of running the Tea Staff in front of Farm House as PW 1 Lal Bahadur was also selling tea nearby his tea stall. Accused further stated that he was earning more than Lal Bahadur by selling tea and that is why he has been falsely implicated by PW 1 Lal Bahadur. No defence witness was examined.
5. PW1 Lal Bahadur, is the star prosecution witness as he is injured as well as eye witness of the incident. PW1 Lal Bahadur inter alia deposed that on 07.02.10, he was present at Farm House at about 10 pm when accused Rakesh @ Sonu came inside from the small gate, accused was running a tea shop near the Farm House and upon his request on previous occasion, his fridge and computer were kept inside the Farm House, once accused broke upon a lock of a room inside the Farm House and PW1 Lal Bahadur had dispute over this with accused, on the date of incident, accused came inside at 10 pm, opened the door where his goods were kept and thereafter, he took out a knife and had gave blow of same on the neck of PW1 Lal Bahadur, PW1 Lal Bahadur, got St. Vs. Rakesh Kumar @ Sonu 6/30 FIR No. 38/10 up from the bed and thereafter, accused gave a knife blow in the stomach of PW1 Lal Bahadur. PW1 Lal Bahadur further deposed that again accused attacked him with knife but PW1 Lal Bahadur took the blows on his hand, PW1 Lal Bahadur asked the accused as to why he was attacking him with the knife upon which accused stated that "tum mere raste ka kanta ho aur me tumhe aj khatam kar dunga" (you are a hurdle in my path and today I will kill you). PW1 Lal Bahadur, further deposed that after hearing this, he picked up a rod which was lying nearby upon which accused immediately went out and locked the door from outside. Thereafter, accused brought a gas cylinder from his shop and inserted the rubber pipe of cylinder from beneath the door and switched on the regulator resulting in filling of gas inside the room where PW1 Lal Bahadur was locked. Thereafter, accused again went to his shop and brought a cane filled with some inflammable liquid like kerosene oil, etc. and poured the same from three windows of the room where PW1 Lal Bahadur was locked. Thereafter, accused burnt a matchstick and threw the same inside from one of the windows resulting in spreading of fire inside the room, due to the gas in the atmosphere of the room, a blast took place which resulted in falling of one of the walls of room. PW1 Lal Bahadur further deposed that he escaped from that space and was so much frightened that he kept on sitting for about half an hour and after regaining his mental balance, he reached Jindal Farm and called one Ram Mehar from there and informed him about the St. Vs. Rakesh Kumar @ Sonu 7/30 FIR No. 38/10 incident, PW1 Lal Bahadur and Ram Mehar tried to contact their employer Sh. Raj but could not connect him and finally a call was made to the police by Ram Mehar. Police arrived at about 2.30 am and PW1 Lal Bahadur was taken to hospital. Clothes of PW1 Lal Bahadur, having blood stains on them, were seized by police. Statement of PW1 Lal Bahadur Ex. PW1/B was recorded by police which was signed by PW1. PW1 Lal Bahadur identified the jacket and trouser in the Court as Ex. P1 and Ex. P2.
6. PW1 Lal Bahadur could not be cross examined he was murdered after his examination in chief was recorded and an FIR bearing no. 232/11, u/s. 302 IPC & 25/27/54/59 Arms Act. was registered at PS Vasant Kunj (South) in which accused herein (Rakesh @ Sonu) again is alleged to have murdered PW1 Lal Bahadur.
7. PW2 Ram Mehar Singh, deposed that on 07.02.11, he was sleeping at Green Avenue Lane, Farm House of Janak Raj Jindal where he used to work as a guard and he noticed that Lal Bahadur was lying in front of the gate of the farm house in an injured condition. PW2 Ram Mehar Singh, made a call to police by dailing no. 100. PW2 Ram Mehar Singh, deposed that he does not know accused Rakesh. PW2 Ram Mehar Singh, was declared hostile and was allowed to be cross examined by learned Additional Public Prosecutor for the State.
8. PW3 SI Vijay Pal Singh Kasana deposed that on 08.02.10, he along with members of Crime Team inspected the spot at Farm House St. Vs. Rakesh Kumar @ Sonu 8/30 FIR No. 38/10 Green Avenue Lane, Vasant Kunj and gave his report Ex. PW3/A.
9. PW4 HC Om Prakash, brought the PCR Form carrying the entry dt. 08.12.10 recorded at 2.14 am and proved the same as Ex. PW4/A.
10. PW6 ASI Niranjan Rao, deposed that on 08.02.10, he recorded DD No. 6A and DD No. 7A and proved the copy of same as Ex. PW6/A and Ex. PW6/B respectively. PW6 ASI Niranjan Rao also recorded FIR in this case and proved the copy of same as Ex. PW6/C.
11. Medical evidence is also on record. PW6 Dr. Ravijot Singh, SR (Ortho.) AIIMS Hospital, proved the MLC prepared by Dr. Shewta Raina as Ex. PW6/A. PW7 Dr. Upasana Sinha, SR (Radiologist), AIIMS Hospital, deposed that xray report Ex. PW7/A was prepared by Dr. S. Ramnivas and she can identify the signature and handwriting of Dr. S. Ramnivas, as per records available in the hospital. PW7 Upasana Sinha, further deposed that as per xray report, patient Lal Bahadur had fractures of shaft of both ulna & radius with displacement and a communicated fracture. PW8 Dr. Sandeep, SR, Safdarjung Hospital, proved the discharge summary of injured as Ex. PW8/A.
12. PW10 HC Gajanand was with Investigating Officer SI Dharampal, when accused was arrested from Raj Singh Farm House. PW10 HC Gajanand deposed that at the instance and from the tea shop of accused, two gas cylinders with pipes and regulators were seized vide memos Ex. PW10/D and Ex. PW10/E, two empty canes were also seized at the instance of accused vide memos Ex. PW10/F, one blood St. Vs. Rakesh Kumar @ Sonu 9/30 FIR No. 38/10 stained knife was also recovered at the instance of accused from a room at Raj Singh Farm vide memo Ex. PW10/G, one cash memo was also seized from the accused vide memo Ex. PW10H. PW10 HC Gajanand identified the case properties viz. Pipes as Ex.P1, regulator as Ex. P2 and big cylinder as Ex. P3, pipes, regulalor and small cylinder as Ex. P4, Ex. P5, Ex. P6, knife as Ex. P7, and empty cane seized vide memo Ex. PW10/F as Ex. P8, in the Court.
13. HC Vikram Singh was initially partly examined in chief as PW12 and in his subsequent examination, he was referred as PW13 Ct. Vikram Singh (may be due to inadvertence). For the sake of convenience Ct. Vikram Singh will be referred to a PW12 in this judgment).
14. PW12 Ct. Vikram Singh, accompanied the Investigating Officer SI Dharampal to Green Avenue lane, Vasant Kunj after receipt of DD No. 6A on 08.02.10. PW12 Ct. Vikram Singh, deposed that they reached Raj Farm House, Green Avenue Lane, Vasant Kunj, where Investigating Officer lifted some liquid vide memo Ex. PW12/A, pieces of floor vide memo Ex. PW12/B and Ex. PW12/C, blood spots vide memo Ex. PW12/D. PW12 Ct. Vikram Singh, further deposed that he also seized one iron rod from the room having some blood stains vide memo Ex. PW12/E. PW12 Ct. Vikram Singh further deposed that on reaching the spot i.e, Raj Farm House, Green Avenue Lane opposite Lever Hospital, it came to the notice of PW12 Ct. Vikram Singh and St. Vs. Rakesh Kumar @ Sonu 10/30 FIR No. 38/10 Investigating Officer that the wall of the rooms was damaged and the roof has come down, the fire had been doused and the articles/luggages were trapped under the malba. PW12 Ct. Vikram Singh further deposed that there was smell of blood and oil and therefore sample of oil and blood were lifted vide seizure memo Ex.PW13/A and Ex. PW13/B. PW12 Ct. Vikram Singh further deposed that on 08.02.10 at about 3.50 am, ASI Dharampal received information on his phone that one injured Lal Bahadur s/o Brij Bhushan is admitted in Trauma Centre, PW12 Ct. Vikram Singh was left at the spot to guard the spot and ASI Dharampal went to Trauma Centre, at about 5.45am ASI Dharampal returned from the Trauma Centre and handed over rukka to PW12 Ct. Vikram Singh and directed PW13 to take the same to Police Station for registration of FIR. PW12 Ct. Vikram Singh, took the ruqqa to Police Station and Duty Officer registered FIR u/s. 452/342/436/307 IPC. PW12 Ct. Vikram Singh, returned to spot alongwith rukka and copy of FIR, which was delivered to ASI Dharampal for investigation. Crime team was called and they took the photographs. Owner of Farm House was called. IO recorded his statement. IO also recorded the statement of Ram Mehar who made 100 no. call to police. IO made search for accused viz. Rakesh @ Sonu on that day but in vain.
15. PW12 Ct. Vikram Singh, identified the iron rod in the Court as Ex. P9. In cross examination, PW12 Ct. Vikram Singh, deposed that at 12 noon rod Ex. P9 had been recovered by the IO. PW12 Ct.
St. Vs. Rakesh Kumar @ Sonu 11/30 FIR No. 38/10 Vikram Singh, further deposed in cross examination that when IO seized/recovered the rod Ex. P9, IO was not having any evidence to the effect that the rod Ex. P9 has been used in the commission of crime.
16. PW14 SI Dharam Pal, is the Investigating Officer of this case.
PW14 SI Dharam Pal, inter alia deposed that on 08.02.10, he was posted as SubInspector in Police Station Vasant Kunj (South), on that day at about 2.20am on receipt of copy of DD No.6A Ex.PW6/A), he alongwith Ct. Vikram Singh reached the farm house of Raj Singh Green Avenue Lane, Vasant Kunj, Delhi opposite Lever hospital. According to PW14 SI Dharam Pal, there were two rooms in the farm house situated adjacent to the road. PW14 SI Dharam Pal, noticed that the outer wall of the both rooms has fell down on the road and smell of diesel/kerosene oil was coming from the rooms. Some blood was lying in the room of farm house. PW14 SI Dharam Pal and Ct. Vikram Singh came to know that injured had already been removed to hospital by PCR official. No eye witness was found at the spot.
17. PW14 SI Dharam Pal, further deposed that he came to know that injured Lal Bahadur, was admitted at JPN Trauma Centre. PW14 SI Dharam Pal, left Ct. Vikram at the spot to guard the spot and he himself went to JPN Trauma Centre where he found admitted injured Lal Bahadur. PW14 SI Dharam Pal, collected the MLC of injured and the Doctor opined the injuries as grievous sharp injuries on the MLC and also wrote 'assault burns'. Doctor on duty declared Lal Bahadur to be fit St. Vs. Rakesh Kumar @ Sonu 12/30 FIR No. 38/10 for statement vide his endorsement Ex.PW14/A on MLC Ex.PW6/A. PW14 SI Dharam Pal, recorded the statement of Lal Bahadur, Ex.PW1/B and thereafter, he came back at the spot, prepared rukka Ex.PW14/B and got the case registered through Ct. Vikram. PW14 SI Dharam Pal, further deposed that crime team was called at the spot and spot was inspected by the Crime Team. Some liquid like kerosene/diesel was lying in the room which was lifted from the spot and sealed in a plastic container with the seal of DPS and taken into possession vide seizure memo Ex.PW13/A, some marble pieces with blood were broken and taken into possession after sealing in a pullanda with the seal of DPS vide seizure memo Ex.PW13/B, some blood was lifted from the spot, which was sealed in a plastic container with the seal of DPS and taken into possession vide seizure memo Ex.PW13/C. Some pieces of marble without blood was lifted from the sot and sealed in a plastic container with the seal of DPS and taken into possession vide seizure memo Ex.PW13/D. PW14 SI Dharam Pal, further deposed that one blood stained iron rod was lying at the spot, it was also sealed in a pullanda with the seal of DPS and taken into possession vide seizure memo Ex.PW13/E. PW14 SI Dharam Pal, further deposed that he also seized the bloodstained clothes of the injured i.e. one pant and jacket after sealing the same in a pullanda with the seal of DPS vide seizure memo Ex.PW1/A.
18. PW14 SI Dharam Pal further deposed about receipt of secret St. Vs. Rakesh Kumar @ Sonu 13/30 FIR No. 38/10 information and arrest of accused on 09.02.10 from the tea shop of accused. PW14 SI Dharam Pal, deposed that accused was arrested vide arrest memo Ex. PW10/A and from his search, one slip of burn and plastic department of Safdarjung hospital was recovered. The slip was taken into possession vide memo Ex.PW14/C. The slip is Ex.PW14/D. PW14 SI Dharam Pal, further deposed that accused disclosed that during the explosion he also sustained burn injuries on his face and got himself treated in Safdarjung hospital after the incident. PW14 SI Dharam Pal further deposed that in pursuance of his disclosure statement, accused got recovered blood stained knife from the room of the farm house. The sketch of the knife Ex.PW14/E was prepared, it was sealed in a pullanda with the seal of DPS and taken into possession vide seizure memo Ex.PW10/G. PW14 SI Dharam Pal, further deposed that accused got recovered a domestic gas cylinder, regulator and a pipe from his tea shop by which he had spread the gas in the room of complainant/injured, accused also got recovered two plastic canes from near the place of occurrence by which he had thrown the diesel in the room of complainant, accused also got recovered from outside of the room of the farm house, one small gas cylinder alongwith regulator and pipe saying that he has spread the gas with the help of small gas cylinder in the room of the complainant. PW14 SI Dharam Pal, further deposed that on 10.02.2010, he went to place of occurrence and prepared site plan Ex.PW14/G on the pointing of complainant Lal St. Vs. Rakesh Kumar @ Sonu 14/30 FIR No. 38/10 Bahadur as he was discharged from the hospital. Pant and jacket seized by PW14 SI Dharam Pal, were identified by him in the Court. The iron rod was also identified by PW14 in the Court. White colour cane, empty cane make HP, knife Ex. P7, receipt of LPG gas cylinder, regulator, gas pipe make HP, big cylinder make HP, small gas cylinder, regulator and pipe of yellow colour were identified by PW14 in the Court.
19. Sum and substance of submissions of Mr. Rajiv Jain, Counsel for accused Rakesh @ Sonu, is as under:
(i) deceased was having rivalry with accused over running tea shop and hence he falsely implicated the accused.
(ii) Recovery of knife, two cylinders, gas pipes, at the instance of accused is highly doubtful as police came to know about the use of knife, cylinder, gas pipes and their location but police did not seize the same till the arrest of accused.
(iii) Seizure memo of rod Ex. PW13/D is not signed by any public person and prosecution has not explained as to who told the Investigating Officer that iron rod has been used in the crime.
(iv) There is contradiction in the depositions of PW13 Ct.
Vikram Singh and Ex. PW14 SI Dharampal, regarding availability of public persons at the spot.
(v) Testimony of PW1 Lal Bahadur was not corroborated by PW2 Ram Mehar.
St. Vs. Rakesh Kumar @ Sonu 15/30
FIR No. 38/10
(vi) It is not established by scientific investigation that knife
recovered in this case was used in the crime.
20. The important question that arises for consideration in this case is whether the testimony of PW 1 Lal Bahadur, who was not cross examined by accused, can be read in evidence or not. As mentioned above, PW 1 Lal Bahadur was examined in chief on 28.07.11 and PW 1 Lal Bahadur was subsequently murdered on the intervening night of 67.09.2011 for which FIR bearing no. 232/11, u/s. 302 IPC & 25/27/54/59 Arms Act. was registered against accused Rakesh @ Sonu (accused herein) with the allegation that acccused Rakesh @ Sonu has murdered PW 1 Lal Bahadur. For deciding this question Section 33 Indian Evidence Act is relevant and same is being reproduced herein as under :
" Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, that truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided St. Vs. Rakesh Kumar @ Sonu 16/30 FIR No. 38/10 that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to crossexamine;
that the question in issue were substantially the same in the first as in the second proceeding."
21. To decide whether section 33 Indian Evidence Act is applicable to the facts of the case, it has to be seen as to whether accused had the right and opportunity to cross examine PW 1 Lal Bahadur. It is not in dispute that accused had the right to cross examine PW 1 Lal Bahadur as every accused has the right to cross examine the witnesses who have been examined by prosecution. After conclusion of examination in chief of PW 1 Lal Bahadur, it is mentioned that "XXXX deferred as it is lunch time" on 28.07.11. Perusal of order sheet dt. 28.07.11 revealed that PW 1 Lal Bahadur was examined in chief. Submission of proxy counsel for accused that main counsel for accused will be coming after lunch to cross examine the witness, was mentioned in the order sheet dt. 28.07.11. It is mentioned in the order sheet dt. 28.07.11 that it is 3.45 (after time something is written with hand) and it is observed that counsel for accused has not come so far. The witness i.e, PW1 Lal Bahadur was discharged and accused was given last and final opportunity to cross examine the witness. When the order dt. 28.07.10 is read as a whole, it becomes obvious that PW 1 Lal Bahadur was St. Vs. Rakesh Kumar @ Sonu 17/30 FIR No. 38/10 examined in chief in pre lunch session and his cross examination was to be recorded after lunch as the Court was informed that main counsel for accused would come after lunch. Main counsel for accused did not turn up till 3.48 pm and witness was discharged for that day. It is, therefore, clear that accused had the opportunity to cross examine the witness PW 1 Lal Bahadur on 28.07.11. Hence, section 33 of Indian Evidence Act becomes applicable and the testimony of PW 1 Lal Bahadur can be read in evidence.
22. PW 1 Lal Bahadur has clearly deposed that accused attacked him with knife on neck and stomach. It has also come in the deposition of PW 1 Lal Bahadur that accused locked the door of the room of PW 1 Lal Bahadur from outside and brought gas cylinder from his shop and inserted the rubber pipe from beneath the door and switched on the regulator resulting in filling of gas inside the room where PW 1 Lal Bahadur was locked. As per the testimony of PW1 Lal Bahadur, accused did not stop here and went to his shop and brought a cane filled with some inflammable liquid like kerosene oil and poured the same from three windows of the room where PW1 Lal Bahadur was locked and burnt a matchstick and threw it inside from one of the window resulting in spreading of fire inside the room. It has also been deposed by PW1 Lal Bahadur that due to gas in the atmosphere of the room, a blast took place which resulted in falling of one of the walls of the room. What emerges from the testimony of PW1 Lal Bahadur is that St. Vs. Rakesh Kumar @ Sonu 18/30 FIR No. 38/10 accused not only attempted to kill PW1 Lal Bahadur but took all possible steps and left no stone unturned for eliminating PW1 Lal Bahadur. Nodoubt the deposition of PW1 Lal Bahadur was not corroborated by PW2 Ram Mehar, as PW2 Ram Mehar turned hostile. PW1 Lal Bahadur, is the direct witness of the crime who deposed about what he saw and suffered. PW1 Lal Bahadur, had no reason to falsely implicate the accused knowing fully well that by doing so he will be shielding the real culprit who perpetrated the crime against him. The defence of accused that PW1 Lal Bahadur was on inimical terms with accused on account of running tea stall in front of Farm House and accused was earning more than PW1 Lal Bahadur, by selling tea and for this reason PW1 Lal Bahadur has falsely implicated accused, is neither convincing nor believable. Therefore, the defence of accused and submission of Mr. Rajiv Jain, counsel for accused that PW1 Lal Bahadur, has deposed against the accused because of his imagination in his mind, is liable to be rejected. PW1 Lal Bahadur/injured, by any stretch of imagination, can not be expected to implicate the wrong person for assault on him knowing fully well that by doing so, he will, infact, be protecting the real culprits. Accused has not been able to establish previous enmity between him and PW1 Lal Bahadur, to make out a case of false implication.
23. The oral evidence in the form of deposition of PW1 Lal Bahadur is supported by medical evidence. The injuries suffered by PW1 Lal St. Vs. Rakesh Kumar @ Sonu 19/30 FIR No. 38/10 Bahadur have been described in the MLC as :
(i) Burns abdomen and below
(ii) CLW 3 in number on chin measuring 6, 2 & 10 cm.
24. The injuries received by PW1 Lal Bahadur, have been described in the MLC Ex. PW6/A as grievous in nature and the kind of weapon used has been mentioned as sharp.
25. As per the xray report Ex. PW7/A, Lal Bahadur, suffered fractures of shaft of both ulna & radius with displacement and a communicated fracture. PW6 Dr. Ravijot Singh who proved the MLC, PW7 Dr. Upasna Sinha who proved the xray report and PW 8 Dr. Sandeep who proved the discharge summary Ex. PW8/A, were not cross examined by the accused and hence the MLC Ex. PW6/A, xray report Ex. PW7/A and discharge summary Ex. PW8/A, are deemed to have been admitted by the accused.
26. It has come in the testimony of PW14 SI Dharampal (Investigating Officer of this case) and PW10 Ct. Gajanand that blood stained knife used in the crime, domestic gas cylinder, regulator, pipe, one small gas cylinder along with regulator and pipe, used in the commission of the crime have been recovered at the instance of accused. Mr. Rajiv Jain, learned counsel for accused, submitted that recovery of knife, domestic gas cylinder, regulator, pipe, one small gas cylinder along with regulator and pipe, etc. is highly doubtful as police came to know about use of knife and gas cylinder in the crime and their location St. Vs. Rakesh Kumar @ Sonu 20/30 FIR No. 38/10 but police did not seize the same till the arrest of accused. The weapon/articles used in the crime and their place of recovery can be described in tabular form as under :
Sr. No. Weapon/Article Place of recovery
1. Blood stained knife From the room of farm
house
2. One small gas cylinder and pipe From outside the room of
farm house
3. Two plastic canes From near the place of
occurrence
4. Domestic gas cylinder, regulator and pipe From the shop of accused
27. PW14 SI Dharampal, deposed that during his stay in the room for 75 minutes, the exact knife which was used in the crime could not be identified. PW14 SI Dharampal further deposed that he saw one knife in the room with blood stains on it. PW14 SI Dharampal further deposed that blood was spread throughout the room, Investigation Officer saw the knife with blood stains on it but he was not sure whether the knife was used in the crime or not. Nonseizure of knife by the Investigating Officer until after it was identified or pointed out by the injured/accused to be the same knife used in the crime, will not weaken the case of prosecution. Blood was scattered throughout the room, therefore, the Investigating Officer, just because he saw blood stains on knife, could not have presumed that knife was used in the crime.
St. Vs. Rakesh Kumar @ Sonu 21/30 FIR No. 38/10
28. So far as the one small gas cylinder, regulator, pipe and two plastic canes recovered from outside the room of farm house or near the place the place of occurrence are concerned, these are normal household articles, which can be found at any place used for residence of a human being and will not fall within the category of conventional weapons. Hence, even if, PW1 Lal Bahadur in his statement to Investigating Officer has mentioned the use of gas cylinder, regulator, pipe, plastic canes, in the commission of offence, Investigating Officer was not expected to come to a definite conclusion that these were the same articles which were mentioned by PW1 Lal Bahadur in his statement. Same were also mentioned by accused in his disclosure statement and got recovered by accused. Therefore, it cannot be said that recovery of knife, one small gas cylinder, regulator, pipe, two plastic cane, at the instance of accused is doubtful.
29. Seizure of iron rod which was used by PW1 Lal Bahadur, in his self defence, by the Investigating Officer before it was identified by PW1 Lal Bahadur, will not weaken prosecution case. Contradictions in the deposition of PW12 Ct. Vikram Singh and PW14 SI Dharampal, about the availability of public persons at the spot at the relevant time, is minor contradiction, which can be safely ignored. Accused cannot take any advantage from the lapse on the part of Investigating Agency and defective investigation on certain aspects of case. If a person accused of serious offence is acquitted merely because of negligence and lapse on St. Vs. Rakesh Kumar @ Sonu 22/30 FIR No. 38/10 the part of Investigating Officer, it will be a mockery of justice and judicial process. If the evidence adduced on record is sufficient to prove the charge against the accused persons, such lapses on the part of police will not advance the case of accused. In (2013) 10 SCC 192 - Hema Vs. State. Hon'ble Supreme Court held and observed in para 17 as under :
" Since, the Court has adverted to all the earlier decisions with regard to defective investigation and outcome of the same, it is useful to refer the dictum laid down in those case (Gajoo case, SCC pp. 54044 para 20).
"20. In regard to defective investigation, this Court in Dayal Singh vs. State of Uttranchal, while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such case, held as under: (SCC pp. 28083, paras 2736).
'27, Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of UP, this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapse ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanraj Singh Vs. State of Punjab, held (SCC p.657, para 5)' '5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in St. Vs. Rakesh Kumar @ Sonu 23/30 FIR No. 38/10 acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective".
28. Dealing with the cases of omission and commission, the Court in Paras Yadav V. State of Bihar enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the Courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party." The legal preposition laid down in the aforesaid case is squarely application to the present case.
30. Accused during his examination u/s. 313 Cr.PC stated that he received burn injuries while cooking food and had gone to Safdarjung Hospital. As per the deposition of PW14 SI Dharampal, when accused was arrested, a slip of Burn and Plastic Department of Safdarjung Hospital Ex. PW14/D was recovered from the accused. The cause of burn injury to the accused was within the special knowledge of accused. Section 106 Evidence Act lays down that when any fact is within the special knowledge of any person, the burden of proving that fact is upon St. Vs. Rakesh Kumar @ Sonu 24/30 FIR No. 38/10 him. Hence, burden of proving that accused got burn injuries while cooking food, was on the accused. Accused led no evidence to discharge the burden of proof cast on him u/s. 106 Evidence Act. Therefore, accused could not prove that he received burn injuries while cooking food. Failure of the accused to explain how he got burn injuries strengthens the case of prosecution that accused also got burn injuries when he set the room of injured on fire and this proves the complicity of accused in the crime.
31. Last submission of learned counsel for accused was that it was not established by scientific investigating that knife recovered in this case was used in the crime. Learned Counsel for accused argued that Investigating Officer ought to have first lifted the chance prints from the knife and those prints ought to have been compared with finger prints of accused by forensic expert to find out whether knife was used by accused in the crime. It has come in the evidence that when the knife was recovered by Investigating Officer, the knife was blood stained. It will be highly difficult to lift chance prints from the knife which has blood stains on it. If the chance prints could not have been lifted from the knife, the argument that investigation was not conducted in scientific manner, does not hold water.
32. In view of above, it is clear that prosecution has successfully proved that accused Rakesh Kumar @ Sonu, wrongly confined the complainant PW1 Lal Bahadur, by wrongly restraining him in such a St. Vs. Rakesh Kumar @ Sonu 25/30 FIR No. 38/10 manner so as to prevent him from proceedings beyond certain circumscribing limits. Prosecution has also proved beyond reasonable doubt that accused Rakesh Kumar @ Sonu committed mischief by fire or explosive substance with intent to cause, or knowingly it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a human dwelling or as a place for the custody of property. Prosecution has also proved beyond reasonable doubt that accused Rakesh Kumar @ Sonu, trespassed into the room of PW1 Lal Bahadur having made preparation for causing hurt and for wrongfully restraining PW1 Lal Bahadur. In other words, prosecution has successfully proved charge u/s. 342/436/452 IPC against the accused.
33. It has already been observed that accused Rakesh Kumar @ Sonu made almost successful attempt to kill PW1 Lal Bahadur and hence, accused Rakesh Kumar @ Sonu, is liable to be convicted for the offence under section 307 IPC.
Accordingly, the accused is convicted for the offences under section 342/436/452/307 IPC.
Let accused Rakesh Kumar @ Sonu, be heard on the point of sentence.
Copy of this judgment be given to accused immediately.
Announced in open Court (Sandeep Yadav) Additional Sessions Judge5 (South) Saket Courts, New Delhi/25.11.14 St. Vs. Rakesh Kumar @ Sonu 26/30 FIR No. 38/10 IN THE COURT OF SH. SANDEEP YADAV, ADDITIONAL SESSIONS JUDGE5, SOUTH DISTRICT, SAKET COURTS, NEW DELHI SC No. 67/14 ID No. 02403R0222402010 FIR No. 38/10 PS. Vasant Kunj (South) U/s. 452/342/436/307 IPC State Versus Rakesh Kumar @ Sonu s/o. Sh. Ishwar Singh r/o. Near Farm House of Raj Singh Green Avenue Lane Vasant Kunj New Delhi ORDER ON SENTENCE 27.11.14 Pr.:
Public Prosecutor for the State Investigating Officer SI Dharampal Mr. Rajiv Jain, Advocate (Amicus Curiae) for convict Rakesh Kumar @ Sonu Convict produced from j/c.
1. I have heard Mr. Rajiv Jain, learned counsel for convict as well as learned Public Prosecutor for the State on the point of sentence. Convict Rakesh Kumar @ Sonu has been convicted u/s. 342/436/452/307 IPC St. Vs. Rakesh Kumar @ Sonu 27/30 FIR No. 38/10 vide judgment dt. 25.11.2014. Mr. Rajiv Jain, learned counsel for convict submitted that there is no previous involvement of convict in any criminal case and convict has clean antecedents till registration of this case. Learned counsel for convict further submitted that father of convict has died and his family consists of his mother and one brother. It is further submitted that brother of convict is mentally disturbed who needs medical treatment. Learned counsel for convict further submitted that convict is the sole bread earner of his family and keeping in view all these circumstances, a lenient view may be taken against the convict.
2. Learned Public Prosecutor for the State submitted that convict not only attempted to kill the injured/complainant Lal Bahadur but almost succeeded in killing him and convict made all possible attempts to eliminate injured/complainant Lal Bahadur. Learned Public Prosecutor further submitted that after stabbing the injured many times, convict did not stop there and infact brought gas cylinder, gas pipe, regulator and inflammable liquid to set on fire the room in which injured was living.
Learned Public Prosecutor further submitted that injured in this case has been murdered for which an FIR bearing no.232/11, u/s. 302 IPC & 25/27/54/59 Arms Act. was registered at PS Vasant Kunj (South) wherein convict is the only accused and the said case is pending trial.
3. Convict has been held guilty of criminally trespassing into the room in which injured Lal Bahadur was residing, stabbing him, locking the room from outside and thereafter setting the room on fire. There is St. Vs. Rakesh Kumar @ Sonu 28/30 FIR No. 38/10 no denying fact that the offence was committed by convict in a gruesome manner with clear intention to eliminate the injured Lal Bahadur by any means. The manner of committing the offence is of course an aggravating circumstance. It is a matter of record that convict has been accused of murdering injured Lal Bahadur for which an FIR bearing no.232/11, u/s. 302 IPC & 25/27/54/59 Arms Act. was registered at PS Vasant Kunj (South) and the said case is pending trial.
4. After considering the aggravating and mitigating circumstances, convict Rakesh Kumar @ Sonu is sentenced to simple imprisonment for 10 years (ten years) and fine of Rs. 5,000/ for the offence u/s. 307 IPC. In default of payment of fine, convict shall undergo simple imprisonment for 1 year (one year).
5. Convict Rakesh Kumar @ Sonu is further sentenced to simple imprisonment for 10 years (ten years) and fine of Rs. 5,000/ for the offence u/s. 436 IPC. In default of payment of fine, convict shall undergo simple imprisonment for 1 year (one year).
6. Convict Rakesh Kumar @ Sonu is also sentenced to simple imprisonment for 3 years (three years) and fine of Rs. 1,000/ for the offence u/s. 452 IPC. In default of payment of fine, convict shall undergo simple imprisonment for 6 months (six months).
7. Convict Rakesh Kumar @ Sonu is further sentenced to simple imprisonment for 1 year (one year) for the offence u/s. 342 IPC.
All the sentences shall run concurrently. Benefit of section 428 St. Vs. Rakesh Kumar @ Sonu 29/30 FIR No. 38/10 Cr.PC is extended to convict Rakesh Kumar @ Sonu.
8. An inquiry was got conducted through the Investigating Officer about the dependents of injured Lal Bahadur and their financial status to determine the issue of compensation. Investigating Officer stated that injured Lal Bahadur was an unmarried person and his father and mother have died. Investigating Officer further stated that injured is survived by one brother only namely Mr. Inder Bahadur, who is present in the Court.
9. The Court does not deem it fit to award any compensation to Mr. Inder Bahadur, brother of injured, who cannot be said to have suffered financially because of crime committed in this case.
Copy of this order and judgment be given to accused immediately. Copy of this order be sent to Superintendent, Jail No. 4, Tihar.
File be consigned to Record Room.
Announced in open Court (Sandeep Yadav)
Additional Sessions Judge5 (South)
Saket Courts, New Delhi/27.11.14
St. Vs. Rakesh Kumar @ Sonu 30/30
FIR No. 38/10